217 Mass. 223 | Mass. | 1914
This is a case under the workmen’s compensation act. The facts as found by the Industrial Accident Board are that the employee is totally incapacitated for work by personal injury which arose out of and in the course of his employment, and which caused total loss of vision in both eyes. It resulted from an acute attack of optic neuritis induced by poisonous coal tar gases. His work was about furnaces for producing gas by the burning of coal, in the top of which were several holes through which after opening a cover he could watch the fire. It was his duty to see that the furnaces were supplied with coal and burning evenly, and to prevent incandescent spots caused by the burning by forced draft. It was necessary for him to open one or another of these holes about seventy times a day, and whenever these holes were opened poisonous gases were given forth. The inhalation of these caused his blindness.
The question to be decided is whether this was a “personal injury arising out of and in the course of his employment” within the meaning of those words in St. 1911, c. 751, Part II, § 1. Unquestionably it arose out of and in the course of his employment. The only point of difficulty is whether it is a “personal injury.”
The words “personal injury” have been given in many connections a comprehensive definition. They are broad enough to in-
At common law the incurring of a disease or harm to health is such a personal wrong as to warrant a recovery if the other elements of liability for tort are present. Hunt v. Lowell Gas Light Co. 8 Allen, 169. Allen v. Boston, 159 Mass. 324. Larson v. Boston Elevated Railway, 212 Mass. 262, 267. Deisenrieter v. Kraus-Merkel Malting Co. 92 Wis. 164. Wagner v. H. W. Jayne Chemical Co. 147 Penn. St. 475. See also Gossett v. Southern Railway, 115 Tenn. 376. Damages of this sort have been held not recoverable under the mill acts, although an independent action would lie if a nuisance were created. Eames v. New England Worsted Co. 11 Met. 570. Fuller v. Chicopee Manuf. Co. 16 Gray, 46. See also Wellington v. Boston & Maine Railroad, 158 Mass. 185, 189. The preponderance in recent years of actions grounded upon some physical violence has tended to emphasize the aspect of injury which depends upon visual contact or direct lesion. But that is by no means the exclusive signification of the word either in common speech or in legal use.
The English workmen’s compensation act affords compensation only where the workman receives “personal injury by accident.” It adds to the personal injury alone required by our act the element of accident. Yet it has been held frequently that disease
H. P. Hood & Sons v. Maryland Casualty Co. 206 Mass, 223, goes far toward deciding the case at bar. That was an action by an employer of labor against an insurer who had contracted to indemnify against damages sustained by the employer by reason of liability to its employees for “bodily injuries accidentally suffered” by them in their employment. The employer had been obliged to respond in damages to one Barry, an employee, who had become infected by glanders while cleaning a stable. It was said in the opinion, at page 225: “It is plain that Barry suffered bodily injury in consequence of becoming infected with glanders; as much so as if he had had a leg or an arm broken by a kick from a vicious horse. Indeed it is possible that the bodily injury caused by glanders was greater and more lasting than that caused by a broken leg or arm would have been.” That case related to the kind of bodily injuries which arise from the relation of master and servant. It was decided about one year before the enactment of our workmen’s compensation act. It relates to the same general subject matter. The law of accident insurance has been applied to injuries under the workmen’s compensation act in England. Wicks v. Dowell & Co., Ltd., [1905] 2 K. B. 225.
There is nothing in the act which leads to the conclusion that “personal injuries” was there used in a narrow or restricted sense. The provisions as to notice of the injury, Part II, §§ 15 to 18, both inclusive, as amended by St. 1912, cc. 172 and 571, § 3, indicate a purpose that information shall be given as to the time, place
The difference between the English and Massachusetts acts in the omission of the words “by accident” from our act, which occur in the English act as characterizing personal injuries, is significant that the element of accident was not intended to be imported into our act. The noxious vapors which caused the bodily harm in this case were the direct production of the employer. The nature of the workman’s labor was such that they were bound to be thrust in his face. The resulting injury is direct. If the gas had exploded within the furnace and thrown pieces of “ cherry ”
The learned counsel for the insurer in his brief has made an exhaustive and ingenious analysis of the entire act touching the words "injury” or “injuries,” and has sought to demonstrate that it cannot apply to an injury such as that sustained in the case at bar. But the argument is not convincing. It might be decisive if “ accident ” had been the statutory word. It is true that in interpreting a statute words should be construed in their ordinary sense. Injury, however, is usually employed as an inclusive word. The fact remains that the word "injury” and not “accident” was employed by the Legislature throughout this act. It would not be accurate but lax to treat the act as if it referred merely to accidents. Warner v. Couchman, [1912] A. C. 35, at p. 38.
Decree affirmed.
This word was used in the testimony described in the report of the committee of arbitration in reference to the color of the hot coal in the furnace.