Grain Handling Co. v. Sweeney , 102 F.2d 464 ( 1939 )

SWAN, Circuit Judge

(concurring).

Although I am willing to concur in the judgment I cannot refrain from expressing my doubt whether the interpretation we are putting on the statute does not virtually read out of it the adjective “occupational” which qualifies such diseases as 'are made compensable. In effect, we are holding that the lighting up of a latent tuberculosis by the breathing of grain dust creates an “occupational disease” in the particular employee so affected, although 99 per cent, of the workmen may never get tuberculosis as a result of laboring under the same conditions for equally long periods of time. This seems to extend the term “occupational disease” further than any of' the authorities cited, which, however, in situations quite similar to the one at hand have permitted recovery on the ground that the lighting up of a latent disease is an “accidental injury.” This is an equally strained interpretation of the statutory language, and of the two I prefer the former.