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Death was due to inflammation of the brain produced by the germ known as the " staphylococcus aureus," which came from an infected perforated pimple upon the lip. The court considered the death accidental.
"The word 'accident' is susceptible of and has received many definitions, varying with the connection in which it is used *. As used in an indemnity policy, such as this, we are of the opinion that the word 'accident' means an undesigned and unforeseen occurrence of an effective or unfortunate character, resulting in bodily injury to a person other than the insured.' (Melcher v. Ocean Accident & Guarantee Corp., 226 N. Y. 51, 56.) The words "accident," ," "injury" and "disease are very flexible in meaning, and are to be construed according to the true intent and spirit of the statute or contract in which they are found with reference to the particular circumstances under consideration.
An employer negligently allowed the supply of drinking water to be contaminated with typhoid fever germs, and from drinking the water, an employee contracted typhoid fever, which proved fatal. It was held that the death was due to accident within the Workmen's Compensation Law. (Vennen v. New Dells Lumber Co., 161 Wis. 370; 154 N. W. Rep. 640; Etna Life Ins. Co. v. Portland Gas & Coke Co., 229 Fed. Rep. 552.)
A hostler contracted glanders from a diseased horse and died of that disease, and the Supreme Court of Massachusetts (Hood & Sons v. Maryland Casualty Co., 206 Mass. 223; 92 N. E. Rep. 329) held it was an accidental death, the court saying: "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. It was in
the nature of an accident that he was set to work upon or cleaning up after horses that had glanders, and it was in the nature of an accident that he became infected with the disease."
In Hiers v. Hull & Co. (178 App. Div. 350) an employee contracted the disease of anthrax while handling hides and we held it an accidental injury within the Workmen's Compensation Law. In that case, it is true, the germs entered an abrasion of the skin; in this case they evidently entered a break in the membrane of the nose. Mr. Justice COCHRANE, in his opinion in that case, explains Bacon v. U. S. M. A. Assn. (123 N. Y. 304).
Anthrax, caused by a germ, settled on the eye of a wool sorter, without any apparent physical injury, is an accidental injury. (Brintons, Ltd., v. Turvey, supra.)
Sunstrokes and heat strokes have been held to be accidental injuries where apparently there was no physical injury. (Hernon v. Holahan, 182 App. Div. 126; Campbell v. Clausen-Flanagan Brewery, 183 id. 499; Bradbury's Workmen's Compensation Law [3d ed.], 443, 383; Ismay, Imrie & Co. v. Williamson, 99 L. T. 595; 1 B. W. C. C. 232.)
It is not strictly accurate to say that anthrax, glanders and like diseases are only compensable when they follow an independent traumatism arising in the course of the employment. If the decedent had been inoculated through a pre-existing abrasion upon his hand, there would seem to be little difficulty in saying that the death came from an accidental injury. It is immaterial when or how the abrasion in the skin or the break in the mucous membrane occurred; the important fact is the accidental infection, the real producing cause of the death.
The germs did not knock the employee down or break his jaw, but coneededly they caused his death. The death occurring from a risk of the employment, it is better to rest upon the ordinary presumption in favor of the claim than to resort to fine spun theories to destroy it. The decedent knew that the horse had glanders, and that it was being killed to prevent the spread of that disease, and he evidently exercised due care to avoid infection and to be at all times a safe distance from the horse. We are not required to assume that the mere breathing of the horse and the man carried the germs and caused the inoculation. It is more probable that a sneeze or cough, or a sudden toss of the head of the horse, caused the infectious matter to go some distance, and that such unexpected act brought about the inoculation. In any event, by pure accident, the germs passed, with more or less force, from the horse to the man. It is unnecessary to inquire whether the death was caused by the particular germs which actually made the passage; they were the proximate cause of the death, and in the cases above cited, of the typhoid germs, the glanders germs and the anthrax germs, that matter was not deemed important. The germs which entered the body were treated as the cause of the trouble which resulted from them. Frequently the time, the place and circumstances are important factors in determining whether an infection or injury is the result of accident. If the infection takes place at a definite known time, from a definite known cause connected with the employment, it may, within the liberal spirit of the law, be considered an accidental injury, while, in the absence of such conditions, the disability might be attributable to general causes or treated as arising from a vocational disease, or otherwise.
Matter of Horrigan v. Post-Standard Co. (224 N. Y. 620) is on all fours with this case.
Another question, not raised in the briefs, is present in the case. It is currently assumed, I think erroneously, that the Workmen's Compensation Law applies only where an accident is shown. The amendment to the Constitution upon which the Workmen's Compensation Law rests does not limit compensation to cases of accident. It is evident that the Legislature may award compensation for any injury resulting from the employment. Subdivision 7 of section 3 of the Workmen's Compensation Law defines injury and personal injury: '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 word "therefrom" at the end of the sentence logically and grammati cally refers back to the word " employment," and not to the words "accidental injuries." Is that the legislative meaning, or was the section intended to limit the words "injury" and "personal injury" to "accidental inju ries?" In my opinion a disease or infection naturally and unavoidably resulting from the employment is compensable under the statute. Each word in the section should have a meaning, and unless I am right in the construction the provision as to diseases and infection is without meaning. If an accidental injury naturally and unavoidably results in disease or infection, the disease or infection would at common law be considered as part of the damage resulting from the accident. The closing words of the subdivision, therefore, were not necessary to cover such a case, and if no
other cases were intended to be covered the language is clearly superfiuous. The Legislature appreciates the value of words, and presumably does not waste them, and it is proper construction to give force, so far as may be, to all of the words in the statute. These words cannot be given force without the result that diseases and infections naturally and unavoidably resulting from the employment are within the statute. I assume that the word "unavoidably" does not mean that the disease or infection must necessarily follow to every person engaged in the employment, but fairly means that the disease or infection naturally results from the employment and from no other source, and that the injured party did not outside of the employment bring the diseases or infection upon himself, but the unavoidable conclusion is that it came from the employment and not otherwise.
If we are wrong in concluding that there was an accidental injury, nevertheless the award may stand.
I favor affirmance. COCHRANE, J., concurred.
Award reversed and claim dismissed; certified question answered in the negative.
10. STANDING IN A FORCED AND UNNATURAL POSITION
Upon opinion of Commissioner Sayer, the Commission awarded compensation to an employee for a hip injury due to standing for three-quarters of an hour in an unnatural position. Commissioner Sayer's opinion is as follows:
KARLIN V. KAMBER & Co., S. D. R., vol. 18, p. 561, Bul., vol. 4, p. 54, Nov. 12, 1918.
SAYER, Commissioner: The claimant is employed as head trimmer in a clothing establishment. On September 25, 1917, he sustained an injury of which he gave written notice to the employer on October 3, 1917. On that date he was in the regular course of his employment called upon to straighten out some goods on a shelf, and for that purpose he was compelled to stand with one foot on a table and the other on the edge of a shelf, a distance of three and one-half feet between them. While so standing with his legs stretched apart, he lifted rolls of cloth. This continued for about forty-five minutes, at the end of which time, on attempting to straighten up he felt a severe pain in his back and hips. Claimant was compelled to go home and was disabled for a considerable time. He first consulted his own physician and later called upon the insurance carrier and received treatment from a physician to whom he was sent by the insurance company.
Question is raised as to whether this claimant received an accidental injury within the meaning of the law. I think he unquestionably did. Not every accident must be accompanied by a show of external and visible force and violence. By his questions counsel for the carrier concedes that if claimant had been "bumped" by a roll of cloth it would have been an accident. I think to deny an accident here is spinning too fine a thread. The force that caused disability was present, whether visible at the time or not. The fact that claimant has a defect in his hip joint, resulting from an accident in early childhood, does not change the situation. He testified that
aside from a slight limp from a shortening of one leg, he experienced no difficulty from his defective hip. The employer employed this man, with the perfectly apparent defect, and had so employed him for a dozen years. He caused this man with the defective hip to stand for three-quarters of an hour in a strained and unnatural position while lifting rolls of cloth. If that position and the work done therein contributed to aggravate a condition of the hip that otherwise did not disable the workman, then the claim is properly made.
Carrier relies on the case of Alpert v. Powers, 181 App. Div. 902; 223 N. Y. 97. That case is not in point here. That was a hernia case. The claimant testified he did nothing unusual or out of his ordinary every day work, and there is no suggestion that he was forced to occupy a strained and unnatural position. Moreover, the medical aspect of hernia is entirely different from the case we are considering.
The motion to reopen should be denied and the award of the deputy commissioner confirmed. Medical expenses for the first sixty days of disability are properly chargeable against the employer and insurance carrier.
Upon appeal, the carrier protested that Karlin had been only engaged in ordinary and necessary work such as he had done for a number of years; that there had been no stumbling, no falling, no slipping; and that the head and neck of his femur bone had almost disappeared because of continued disease since his boyhood. The Appellate Division affirmed the award unanimously and without opinion: 188 App. Div. 941, May 7, 1919.
11. FELON FROM USING SCREW DRIVER
A carpenter at work upon the United States hospital in Otisville bruised the palm of his hand in using a screwdriver. A felon resultant from the bruising disabled the hand permanently. The Commission found that the bruising had been an accident, established a definite date for it, December 23, 1918, and awarded compensation to the carpenter. Upon appeal, counsel for the appellants declared that the testimony did not sustain the findings of a definite time for the bruising. The Attorney-General replied that the culmination of an accidental injury may not be instantaneous, for example, frost bite, heat prostration or gas poisoning, and cited Swart v. Town of Shelby, S. D. R., vol. 16, p. 520, May 15, 1918; 186 App. Div. 927, Nov. 13, 1918, in which the Appellate Division had unanimously affirmed awards to the estate and to the widow of a driver who bruised the palm of his hand in operating the trip lever of a dump wagon and lost his life by a palmer abscess resultant from the bruising.
The Appellate Division affirmed the award with opinion as follows, one justice dissenting:
WOODRUFF V. HOWES CONSTRUCTION Co., 189 App. Div. 395, Nov. 12, 1919. LYON, J.: The question involved in this appeal is whether the injury to the claimant was the result of an accident. He was a carpenter, and had been employed for three or four weeks preceding December 23, 1918, at the United States Government Hospital at Otisville, N. Y. For two weeks he had been employed in hanging doors and sash, pressing the handle of a screw driver, bruising, as he believes, the palm of his hand which resulted in a felon. At times he fastened a pin in the jamb of the screw driver and hit the screw driver with his hand. He said the pain was several days coming on. On Saturday, December twenty-first, he felt a pain between the first and second fingers very much as though he had run a splinter in the palm of his hand. On Sunday the pain was severe. On Monday he worked but with pain. On Tuesday, December twenty-fourth, he went to a doctor who lanced the swelling from which pus came. There was no evidence of any undue strain, nor of any puncture. Under this undisputed state of facts the appellants claim that the claimant was not entitled to an award; that an injury, to be the result of an accident, must be traceable to a definite time, place and cause.
Accident is defined in United States Mutual Accident Association v. Barry (131 U. S. 100, 121), quoted by defendants' counsel, as meaning 'happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected; that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means."
The appellant has cited several decisions of the courts of England holding that the injury was not the result of an accident where the occurrence was not accompanied by any slip, wrench or strain, or where the person injured was unable to give any specific time of the happening of the accident.
Contrary to the holding of these cases is that of the House of Lords in Clover, Clayton & Co. v. Hughes (3 B. W. C. C. 275), where a workman suffering from an advanced aneurism of the aorta was doing his work in the ordinary way by tightening a nut with a spanner. This ordinary strain caused a rupture of the aneurism resulting in death. Held, that the workman's death resulted from a personal injury by accident. But these cases are subject to the ruling of the House of Lords in the case of Fenton v. Thorley, in which the claimant ruptured himself at work: "There was no evidence of any slip or wrench or sudden jerk." Held, that it was an accidental injury. The House of Lords defined the meaning of "personal injury by accident" in the English Workmen's Compensation Act, 1897 (60 & 61 Vict. chap. 37, § 1) as an unlooked-for mishap or an untoward event