Todd Dry Docks, Inc. v. Marshal , 49 F.2d 621 ( 1931 )

NETERER, District Judge

(after stating the facts as above).

The findings of the Deputy Commissioner appear to be fully sustained by rational and natural inferences from conceded facts, and are conclusive upon the court. Grays Harbor Stevedore Co. v. Marshall (D. C.) 36 F.(2d) 814; Gunther v. United States Compensation Com. (C. C. A.) 41 F.(2d) 151; Zurich Gen. Acc. & Liability Ins. Co. v. Marshall (D. C.) 42 F.(2d) 1010. Paragraph (2), section 902, title 33, US CA: “The term 'injury’ means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury. * * * ” (Italics supplied.)

The deceased employee died from an infectious disease that arose naturally out of his employment. “An infectious disease presupposes a cause acting by hidden influences * * * or through the pollution of * * * the atmosphere. * * * ” Grayson v. Lynch, 163 U. S. 468, at page 477,16 S. Ct. 1064, 1068, 41 L. Ed. 230. That deceased came to his death through hidden influences of the cerebro-spinal meningitis or through the pollution of the atmosphere by the infected persons on steerage, coughing and sneezing, vaporizing the sputum carrying the germs, polluted the atmosphere, which contacted the delicate mucous membrane of the employee and caused his death, is established.

While the statute appears broader than some state statutes, it does appear under the findings and evidence that the award is within the “accidental injury” phase, as well. No doubt, if the body of the deceased had been penetrated by shots from the accidental discharge of a shotgun on the steerage, from the effects of which he lingered and died of blood poisoning, an award would be sustained. By the same token, the discharge of infectious germs by coughing or sneezing on the steerage, some of which penetrated the mueuous membrane of the employee, resulting in his speedy death, resulted in accidental injury. In the one the shot penetrated the muscles of the body, and in the other the germ penetrated the mucous membrane. The Appellate Court of Indiana, in U. P. B. Co. v. Lewis, 65 Ind. App. 356, 117 N. E. 276, at page 278, said: “* * * Any disease, of which such exposure is known to be the cause, may properly be said * * * to constitute a personal injury by accident, and to come within the provisions of the Workmen’s Compensation Act of this state.”

The Supreme Court of California, in Engels Copper Mining Co. v. Industrial Accident Com., 183 Cal. 714, 192 P. 845, 846, 11 A. L. R. 785, says: “It is also true that it cannot be said from the facts of the ease that it is certain that Rebstoek contracted the disease [influenza] because of his exceptional exposure. * * * It is, of course, true that he might have acquired the disease in some other manner, but that he actually did so would seem to be quite improbable. * * * All that is required is that degree of certainty upon which men may reasonably act, and by which their affairs may reasonably be determined.”

See, also, City and County of San Francisco v. Industrial Accident Com., 183 Cal. 273, 191 P. 26; Pattiani v. State Industrial Accident Com., 199 Cal. 596, 250 P. 864, 49 A. L. R. 446.

The Supreme Court of Michigan, in Dove v. Alpena Hide & Leather Company, 198 Mich. 132, 164 N. W. 253, 254, held where death was caused by inhaling septic germs, causing infection of the throat, compensable, and said: “Counsel inquire where the aeeident is which, led to his death. The accidental feature of the case is that by chance the septic germ or germs were taken up by his respiratory organs and carried into his system, an occurrence which the testimony shows probably did happen, but which was unusual in the work at which he was engaged.”

In Blaess v. Dolph, 195 Mich. 137, 161 N. W. 885, 886, the same court said: “We are of the opinion that an inference favorable to the claimant can be arrived at from the evidence in the case, without indulging in any guess or speculation. Germs cannot be traced in their individual wanderings, like persons. No one ever saw a germ go from a source of infection to its victim’s body. Means and sources of infection are, as a general rule, based on observed conditions.”

See, also, Frankamp v. Fordney Hotel et al., 222 Mich. 525, 193 N. W. 204.

A number of cases are cited by the complainant from state courts upon the state compensation laws. An examination of these cases, however, shows that the compensation laws of the several states are more restricted than the act in issue.

In Connelly v. Hunt Furniture Co., 240 N. Y. 83, 147 N. E. 366, 39 A. L. R. 867, the Court of Appeals of New York, at page 366 of 147 N. E. says: “ ‘ “Injury” and “personal injury” mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.’ Workmen’s Compensation Law (Consol. Laws, e. 67) § 2, subd. 7.” See Gray v. Semet-Solvay Co., 231 N. Y. 518, 132 N. E. 870. To the same effect is Richardson v. Greenberg, 188 App. Div. 248, 176 N. Y. S. 651. The infection must result from the previous injury, whereas, by the act in issue, it must “arise naturally out of such employment.” See, also, Hernon v. Holahan, 182 App. Div. 126, 169 N. Y. S. 705; Campbell v. Clausen-Flanagan, 183 App. Div. 499, 171 N. Y. S. 522.

In Hendrickson v. Continental Fibre Co., 3 W. W. Harr. (Del.) 304, 136 A. 375, the Superior Court of Delaware held occupational disease not compensable as “injury” by “accident,” defined as “violence to physical structure of body.” Rev. Code Del. 1915, §§ 3193a, 3193d, 3193f(b), as added by 29 Del. Laws c. 233. At page 377 of 136 A., the court said: “We are clearly of the opinion that the only diseases whieh are compensable under our Workmen’s Compensation Act are diseases whieh arise from or can be referred to an antecedent violence or application of force of some nature to the physical structure of the body,” and confined itself to consideration of “injury sustained by accident” and said: “Now, the word ‘accident’ is not easy of comprehensive definition. Courts have differed as to its meaning dependent upon the context of particular statutes and a distinction is clearly drawn between an ‘accidental injury’ and an injury ‘by accident’ ” (citing Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A. L. R. 363.

In Industrial Com. v. Cross et al., 104 Ohio St. 561, 136 N. E. 283, the Supreme Court of Ohio held the term “injury” as used in the Workmen’s Compensation Act not to include diseases which are contracted, as distinguished from diseases which are occasioned by or follow as a result of physical injury. The Ohio statute defined “injury” by “accident” as violence to physical structure of the body. See, also, Ind. Comm. v. Rice, 26 Ohio App. 497, 1()0 N. E. 484; Ind. Comm. v. Polcen, 121 Ohio St. 377, 169 N. E. 305.

In Peru Plow & Wheel Co. v. Industrial Comm. et al., 311 Ill. 216, 142 N. E. 546, the Supreme Court of Illinois held “accident” and “accidental injury” to be within the Compensation Act, but “occupational disease” not compensable as accident, and said, in effect, that accident, as contemplated by the Compensation Act, is distinguished from an occupational disease, in that it arises from a definite event, the date of which can be fixed with certainty, but whieh cannot be so fixed in the ease of occupational diseases.

In Lerner et al. v. Rump Bros. et al., 241 N. Y. 153, 149 N. E. 334, 41 A. L. R. 1122, the New York Court of Appeals distinguished between accidental injury and disease, but held that disease may be an “accidental injury.” At page 335 of 149 N. E., the court said: “The English act refers in terms to disease which is ‘a personal injury by accident.’ The English courts have, perhaps for that reason, found it feasible to apply the rule: ‘Whenever the causal connection between occurrence and result be established’ the principle of compensation should prevail, but it has been applied only when the occurrence was out of the ordinary, and the result, although not the natural result of exposure, might with little difficulty be linked to the occurrence.” See, also, Seheerens v. Edwards & Sons, 133 Misc. Rep. 616, 232 N. Y. S. 557; O’Dell v. A. E. P. Co., 223 N. Y. 686, 119 N. E. 1063.

In the instant ease, not only does the act cover “infection as arises naturally, out of such employment,” and the connection between occurrence and result is abundantly established, but, also, the accident in issue was a definite event of fixed date and place.

In Sullivan Mining Co. v. Aschenbach (C. C. A.) 33 F.(2d) 1, the court held (opinion by Judge Dietrich), under the Workmen's Compensation Law of Idaho permitting compensation for accidental injury, it is not necessary that injury result from sudden or violent cause or that the cause be accidental or unexpected, but injury is accidental when it unexpectedly results from the operation of known and usual causes.

The award is approved. An order of dismissal may be presented, on notice.