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died as a result of said anthrax on November twentieth. The Commission has also found that the contracting of anthrax, consisting of the bite of the bacillus of anthrax, was an accidental injury within the meaning of the Workmen's Compensation Law, and that said injury arose out of and in the course of his employment. Upon the hearing before the Deputy Commissioner the only question litigated was whether the injury was an accidental injury, the attorney for the insurance company stating: "It is supposed that he got the anthrax germ at his work." In the opinion written in the case on the first award the Commissioner says: "I think it is fair to assume that he contracted anthrax in the course of his employment, and the question is, can his death, under the circumstances, be attributed to an accidental injury arising out of and in the course of his employment." The opinion is based upon the case of Bacon v. United States Mutual Accident Association (123 N. Y. 304), two judges dissenting. As was said by Mr. Justice COCHRANE in the case of Hiers v. Hull & Co. (178 App. Div. 350), commenting upon the Bacon case: "That case was decided with reference to the particular provisions and phraseology of the policy then under consideration, and it is quite clear that it constitutes no precedent under the statute we are now called upon to apply."

In the case of Hiers v. Hull & Co. (supra), it was held that an employee who, injured while handling diseased hides, became infected with anthrax germs through an abrasion in his hand previously sustained, met with an accidental injury within the meaning of the Workmen's Compensation Law. In Hart v. Wilson & Co., Inc. (186 App. Div. 926; affd., 227 N. Y. Rep. -), in which Hart died of tetanus, the Commission found that the contraction of tetanus, consisting of the bite of the bacillus of tetanus, which was undoubtedly in the wool, was an accidental injury within the meaning of the Workmen's Compensation Law. No opinion was written in this court or in the Court of Appeals in this case. This makes it unnecessary to discuss the case of Richardson v. Greenberg (188 App. Div. 248).

In Higgins v. Campbell & Harrison, Limited (6 W. C. C. 1) a workman who had a pimple on his neck was employed in a wool combing factory. It was his duty to bring bales of wool to the factory and take them to the machine to be washed. In doing this he had to pass some bales of Persian wool, and in the course of his employment he contracted anthrax. Held, that he was entitled to compensation.

In Brinton's, Limited, v. Turvey (7 W. C. C. 1) the applicant's husband was employed in the appellant's factory as a wool sorter. He became infected with anthrax from wool which it was his business to sort. An operation became necessary and resulted in his death. Held, by the House of Lords, that the contraction of anthrax was an accident.

In Lewis v. Ocean Accident & Guarantee Corp. (224 N. Y. 18) there was little doubt that the germ causing the death came from an infected pimple. It was held that if the pimple had been punctured by some instrument, and the result of the puncture was an infection of the tissues, then there was an accident, and the defendant was liable.

In Horrigan v. Post-Standard Co. (224 N. Y. 620), where decedent cut his finger at home and while engaged in cleaning a urinal put his injured hand

into the water, producing an infection which caused his death, it was held that his death was the result of an accident and that the applicant was entitled to compensation.

In Matter of Plass v. Central New England R. Co. (169 App. Div. 826), Plass was engaged in cutting weeds along the railway right of way and came in contact with poison ivy which resulted in his sickness, reducing his power of resistance, and while in bed he contracted bronchitis which developed oedema of the lungs and he died quite suddenly. It was held that his widow was entitled to compensation.

The Commission has found that this claim falls within the principle of Horrigan v. Post-Standard Co, and of Hiers v. Hull & Co.

The award should be affirmed. All concurred, except WOODWARD, and H. T. KELLOGG, JJ., dissenting. Award affirmed.

In awarding compensation for anthrax in Eckhardt v. Nobis' Sons, S. D. R., vol. 21, p. 289, Mar. 7, 1919, the Commission has called attention to the approval by the Court of Appeals of the Appellate Division's decision in the Hiers case by a citation of it in Lewis v. Ocean Accident & Guarantee Corp. The Appellate Division heard argument in the Eckhardt case January 7, 1920. While action in the Lewis case was not under the Workmen's Compensation Law, the opinion of the Court of Appeals is so pertinent by way of definition of accident that it is included here:

LEWIS V. OCEAN ACCIDENT & GUARANTEE CORP., 224 N. Y. 18, May 28, 1918.

CARDOZO, J.: The plaintiff's testator, John F. Bailey, held a policy of insurance issued by the defendant. It covered "loss or disability, resulting directly, independently, and exclusively of all other causes, from bodily injuries effected solely through accidental means." The question is whether injuries resulting in death were effected by accidental means within the meaning of the policy. The trial judge dismissed the complaint. The Appellate Division, two justices dissenting, affirmed.

On July 6, 1915, the insured had a pimple on his lip. A friend who lunched with him says that it looked like an ordinary pimple at that time. A day or so later it was larger and more inflamed. On July 10 the insured consulted a physician. The physician's testimony is that there was then a punctured wound in the lip, which had inflamed and infected the deep tissues. The lip was opened by the physician, and remedies were applied. They were of no avail. The infection spread through the cheek toward the eye. A week later, July 17, the insured became paralyzed and blind. He died the next day. His death was due to inflammation of the brain produced by the germ known as the staphylococcus aureus. There is little doubt that the germ came from the infected pimple. If the infection was the result of accident, the defendant is liable.

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We think there is testimony from which a jury might find that the pimple had been punctured by some instrument, and that the result of the puncture was an infection of the tissues. If that is what happened, there was an accident. We have held that infection resulting from the use of a hypodermic needle is caused by "accidental means (Bailey v. Interstate Casualty Co., 8 App. Div. 127; 158 N. Y. 723; Marchi v. Etna Life Ins. Co., 140 App. Div. 901; 205 N. Y. 606). The same thing must be true of infection caused by the puncture of a pimple. Unexpected consequences have resulted from an act which seemed trivial and innocent in the doing. Of itself, the scratch or the puncture was harmless. Unexpectedly it drove destructive germs beneath the skin, and thereby became lethal. To the scientist who traces the origin of disease, there may seem to be no accident in all this. "Probably it is true to say that in the strictest sense and dealing with the region of physical nature, there is no such thing as an accident" (HALSBURY L. C., in Brintons v. Turvey, L. R. 1905 A. C. 230, 233). But our point of view in fixing the meaning of this contract, must not be that of the scientist. It must be that of the average man (Brintons v. Turvey, supra; Ismay, Imrie & Co. v. Williamson, L. R. 1908 A. C. 437, 440). Such a man would say that the dire result, so tragically out of proportion to its trivial cause, was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident. This test the one that is applied in the common speech of men is also the test to be applied by the courts (U. S. Mutual Acc. Assn. v. Barry, 131 U. S. 100; Lewis v. Iowa State Trav. Men's Assn., 248 Fed. Rep. 602; Western Comm. Trav. Assn. ▼ Smith, 85 Fed. Rep. 401; Brintons v. Turvey, supra; Ismay, Imrie & Co. v. Williamson, supra; Hood v. Maryland Casualty Co., 206 Mass. 223; Ætna Life Ins. Co. v. Portland Gas & Coke Co., 229 Fed. Rep. 552; Omberg v. U. S. Mut. Acc. Assn., 101 Ky. 303; Hiers v. Hull & Co., 178 App. Div. 350, 352; Bailey v. Interstate Casualty Co., supra).

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The defendant argues that the puncture may not have caused the infection. But the plaintiff's experts say that in their opinion the entrance of the germs from the skin into the deeper tissues was the result of trauma. They say that trauma is almost invariably the cause of such infections. We find the signs of trauma here in the punctured wound which was visible when the physician was first consulted. The insured was an athlete in the prime of life and the fullness of health; the infection was not due, therefore, to lowered powers of resistance. The punctured wound is an adequate cause. The evidence suggests no other; at least, a jury might so find. Here, as elsewhere, the law contents itself with probabilities, and declines to wait for certainty before drawing its conclusions.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

HISCOCK, Ch. J., CUDDEBACK, POUND, MCLAUGHLIN and ANDREWS, JJ., concur; CRANE, J., dissents. Judgment reversed, etc.

9. INHALING A GLANDERS GERM

A stableman was required to lead a horse afflicted with glanders away from his employer's stable. Two weeks later he himself died of glanders. With no proof of abrasion of his skin, the

1918.

Commission concluded that he had inhaled the glanders bacteria from the horse's body and made an award to his widow and son, Commissioner Lyon dissenting with opinion: Richardson v. Greenberg, S. D. R., vol. 18, p. 552, Bul., vol. 4, p. 28, Oct. 30, Commissioner Lyon's dissenting opinion is in New York State Departments, vol. 2, p. 1876. An appeal and a certified question brought forth a decision of the Appellate Division reversing the award and dismissing the claim. The decision was accompanied by lengthy majority and dissenting opinions exhaustively discussing the law's terms, especially the terms "accidental injury" and "disease," the distinction between the two and their relation to each other in the definition:

“'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."

The opinions are as follows:

RICHARDSON V. GREENBERG, 188 App. Div. 248, May 19, 1919

H. T. KELLOGG, J.: The State Industrial Commission has certified to this court the following question: "Was the contraction of glanders, under the circumstances as found by the Commission, which resulted in the death of Elmer Richardson, an accidental injury arising out of and in the course of his employment within the meaning of the Workmen's Compensation Law?" The findings made by the Commission are substantially to this effect: That Elmer Richardson was employed as a stable man by Harry Greenberg; that while so employed he was required to lead a horse affected with glanders through the streets of the city of New York; that during this journey he contracted glanders; that the disease was contracted through inhalation of the bacteria of glanders; that he died from the disease of glanders fourteen days thereafter; that his death was due to an accidental injury arising out of and in the course of his employment. The Commission also made an award to a dependent mother and son, from which award an appeal has been taken.

Compensation is payable by an employer only "for the disability or death of his employee resulting from an accidental personal injury." (Workmen's Compensation Law, § 10.) Of such an injury the definition is given: "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, § 3, subd. 7.) Had it been the intention of the Legislature to include within the meaning of "injury" or personal injury" all diseases of whatever nature, it would not have been necessary expressly to mention in addition to "accidental injuries," "such disease or infection as may naturally and unavoidably result therefrom." This express mention of a disease which is the consequence of injury would seem to exclude all dis

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eases which are not. The particular disease must "result" from "accidental injuries ”—that is to say it must be preceded by such injury, and, therefore, cannot constitute the injury which it follows. Evidently "disease" and "accidental injuries" are in contrast with each other, so that the former is not comprehended by the latter, except when it follows the latter as a natural consequence thereof. The Workmen's Compensation Law was drawn with painstaking care and it cannot be supposed that words and phrases found therein, particularly in the defining clauses, were needlessly, meaninglessly or obscurely used. The plain meaning of its words, without the aid of judicial interpretation, induces the conclusion that the Legislature intended to make compensable no condition or death resulting from disease, unless the disease itself followed a traumatic injury or other injury not partaking of the nature of a disease.

The construction suggested would accord with the interpretation given by decisions to the phrase "accidental injury" as employed in policies of insurance against accident and permit awards only where recovery would be permitted under such policies. Thus it was held in Bacon v. U. S. M. A. Assn. (123 N. Y. 304) that death due to malignant pustule, commonly called anthrax, caused by anthrax bacteria entering the pores of the skin at points where there were no abrasions, resulted from disease and not from accidental injury. On the other hand, we find that diseases naturally resulting from traumatic injuries have been held to be the subjects of insurance against accidental injuries. Thus in Bailey v. Interstate Casualty Company (8 App. Div. 127) blood poisoning arising from the injection of an infected hypodermic needle into the flesh to a depth not intended, was held to be covered by a policy insuring against accidental injury. In Lewis v. Ocean Accident & G. Corp. (224 N. Y. 18) death resulting from inflammation of the brain, in turn caused by bacteria entering the blood current through a punctured pimple, was held to be due to accidental injury. The court said: "The punctured wound is an adequate cause. The evidence suggests no other." There are no decisions under the Workmen's Compensation Law which are opposed to the construction of that law herein suggested. In Hiers v. Hull & Co. (178 App. Div. 350) an award for a death from the disease of anthrax which was caused by anthrax bacteria entering the tissues through abrasions or fissures in the skin was upheld, but in that case the fissures themselves were occasioned by accidents occurring in the course of and growing out of the employment. In Matter of Horrigan v. Post-Standard Co. (224 N. Y. 620) an award for the death of an employee was upheld where the employee placed an injured hand in a urinal which he was cleaning, and thus received an infection from the results of which he died. The memorandum in that case does not disclose the fact that the injury to the hand occurred in the course of the employment. However, an examination of the record shows that the Commission made a finding that a wound upon the hand opened while the employee was cleaning the urinal, so that accidental injury in the course of the employment preceded the infection. In Hart v. Wilson & Company, Inc. (186 App. Div. 926), in which no opinion has been reported, an award for a death from lockjaw was upheld where an employee having cracks and crevices in his fingers constituting a species of eczema, contracted the disease of lockjaw while working among hides containing the bacteria of

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