13 A.2d 129 | Pa. Super. Ct. | 1940
Argued March 15, 1940. This appeal is from a judgment entered by the court below affirming an award in a workmen's compensation case.
Simon Loudon, husband of the claimant, had been employed during the late spring and summer of 1936 as a laborer by H.W. Shaull and Sons, contractors, engaged in the reconstructing of a highway near Carlisle. About 150 men were employed on this project. During the month of August an epidemic of typhoid fever broke out among the employes, reaching its peak between August 19 and September 3. Over 30 employes were stricken, several fatally.
Simon Loudon became ill on or about August 21. He consulted a physician who determined that he was *108 suffering from typhoid fever. The prevailing epidemic caused an investigation to be made by the Pennsylvania Department of Health, which resulted in discovering that all the water in the vicinity where deceased worked was obtained from three sources — Hogestown Spring, Hogestown Run, and taps at Kauffman's Service Station — and was contaminated.
The referee found as follows: "Twelfth: That on or about August 11, 1936 Simon Loudon while at work for the defendant accidentally introduced typhoid fever germs into his body through the mouth by drinking water which he believed was good but which, in fact, was contaminated by typhoid fever bacillus. As a result of drinking this contaminated water while at work Simon Loudon became ill on the Twenty-first day of August, 1936 and this illness progressed and developed without the intervention of any other cause and was diagnosed as typhoid fever on August 28, 1936, resulting in his death on September 14, 1936." This finding was affirmed by the Board.
The appellants state in their paper book that they concede, for the purposes of this case, that the decedent's death was definitely traceable to the drinking of contaminated water while at work, sometime during the month of August, but they assert that there was no evidence showing the exact date of the absorption of the germ or of other facts that constitute an "accident" within the meaning of our Workmen's Compensation Act of June 2, 1915, P.L. 736 (
The proper scope to be given the term "injury by accident" has been a fertile source of discussion. The decision in the case of Lacey v. Washburn Williams Co.,
In common parlance, typhoid fever is considered as a disease, not an accident, unless the illness is attributable to some antecedent occurrence of an unusual and unexpected character which may fairly be termed an accident. It will be observed that an accident is a "sudden and unexpected event." A sudden event implies a distinct happening or occurrence at a particular time: Mauchline v. State Ins. Fund,
The compensation authorities realized the difficulty of determining the date the typhoid germs entered decedent's body. The board explains that the referee found the 11th of August as the date on the basis that the deceased became ill on August 21, and that there was medical testimony indicating that the average period of incubation of typhoid fever germs is from ten to fourteen days. Accordingly, the referee counted back ten days from the date of the pronounced symptoms and found that August 11 was the approximate date of the accident. We do not know why twelve or fourteen days were not selected. The deceased evidently drank contaminated water not only on the 11th but for days or maybe weeks prior, and most probably subsequent, thereto.
Dr. Keeney, employed to investigate epidemics by the *110 Pennsylvania Department of Health, said that the incubation of typhoid fever may be from four to twenty-four days. Later, he testified that the average period is from twelve to fourteen days. There was other medical testimony that the average incubating period is two weeks. The time of this alleged accident cannot be definitely fixed under this testimony. The exact moment an accident occurred need not be determined, but the date should be definitely stated with reasonable certainty. To fix a time when the germ entered decedent's body, which is the accident alleged, would be a mere surmise.
In Micale v. Light and S.W. Ins. Fund,
The appellants have called to our attention Easton v. ElkTanning Company,
In Parks v. Miller,
The first group comprises cases where there is an involuntary unexpected, fortuitous happening which causes the disease. One of the several cases mentioned thereunder is Murdock v. NewYork News Bureau et al.,
In the second group are included cases where the work or act performed by an employe is voluntary and not marked by any unusual feature, but where there occurs an unexpected and unusual pathological result. *112
The accident in such instances is due to the effect rather than the cause. In that field are muscular strains, Wolford v.Geisel Moving Storage Co.,
In the third group the exposure is voluntary and results in pneumonia and similar diseases reasonably foreseeable, but the "`accident' consists of an unusual and suddenly developing concatenation of circumstances which necessitates impulsive rather than deliberate action and under conditions markedly different from those attendant upon the usual course of the employe's regular work." An illustration of this class is where a janitor was called upon to turn off the steam which was escaping because of the breaking of a pipe, and in doing so he had to first walk across the street in extremely cold weather, then pass through hot steam, which wet his clothes and as a result he developed bronchial pneumonia: Heisler v. LincolnRealty Co., supra. Roth v. Locust Mountain State Hospital etal., supra, is another case in that category.
The last class is comprised of cases where the exposure causing the pneumonia or similar disease is not only intentional but deliberate, protracted and in the regular course of the employe's work and therefore is no accident. The Parks case falls within that class and compensation was refused.
Our attention has been called to decisions from other states. Some of them have little, if any, application as the provisions in the several statutes there construed are not the same as ours and also because of the varying facts. Brodin's Case,
McDonald v. Belle Terre Lodge,
In Matter of Connelly v. Hunt Furniture Co.,
Judge CARDOZO, then Associate Judge in the New York Court of Appeals, in a very interesting opinion, clearly distinguishes the difference between the introduction of germs into the body by means of an accident and through natural channels in the following language: "We attempt no scientifically exact discrimination between accident and disease or between disease and injury. None perhaps is possible, for the two concepts are not always exclusive, the one of the other, but often overlap. The tests to be applied are those of common understanding as revealed in common speech (citing cases). We have little doubt that common understanding would envisage this mishap as an accident, and that *114
common speech would so describe it. Germs may indeed be inhaled through the nose or mouth or absorbed into the system through the normal channels of entry. In such cases their inroads will seldom, if ever, be assignable to a determinate or single act, identified in space or time. (Matter of Jeffreyes v. Sager Co.,
Gerst et ux. v. Smith-Faris Co. et al.,
If we accept the appellee's contention, which was adopted by the court below, that the drinking of contaminated water by the deceased constituted an accident, it would seem to logically follow that if an employe at work contracts a cold, influenza, tuberculosis, *115 pneumonia, or any other disease by normally and naturally breathing in germs the presence of which is traceable to the conditions or surroundings where he worked, the employer is liable. We are of the opinion such a result was not contemplated by the legislature.
It is our duty to try to ascertain the legislative intent. When we do that we have performed our full duty. If the purpose of our statute is to include disease or sickness it would have done so in clear and unmistakable terms and not by the use of language which is at least popularly understood not to include them. It is readily conceivable that if the lower court's interpretation is correct those who are not physically strong, susceptible to disease by reason of low resistence, would not be able to get employment.
We have always given a liberal interpretation to our Workmen's Compensation Statute, but we cannot be bountiful with the money of others by affording relief not given by the law. After giving careful consideration to this interesting case all the members of the court are of the opinion that the award cannot stand.
Judgment is reversed and here entered for defendants.