Union Mining Co. v. Blank

⁶⁴ Marbury, J., delivered the opinion of the Court. This is an appeal by an employer and self-insurer from a judgment of the Circuit Court for Allegany County, affirming an allowance made by the State Industriál Accident Commission to the appellee, who was the claimant. There is no controversy over the facts. A single issue was submitted to the jury, which was whether the claimant sustained an accidental injury arising out of the course of his employment.

The appellant had five exceptions, abandoned the first, and now relies upon the remaining four, two of which are to the refusal of the court to instruct the jury to answer “No” to -the issue presented. These are exceptions 4 and 5, but they will be considered' first because the reversal of this ruling of the lower court would finally dispose of the entire case. The defendant’s “A” prayer is so general in form that we cannot consider it a sufficient compliance with Part 3, Rule 4, of the General Rules of Practice and Procedure, which requires that such a prayer “shall state the grounds therefor.” The defandant’s “B” prayer, however, asks the court to instruct the jury “That there is no evidence in this case legally sufficient to establish that the claimant sustained an accidental injury within the meaning of the Workmen’s Compensation Law of Maryland.” In view of the fact that the case turns upon the meaning of the words “an accidental injury,” this prayer could not mislead the trial court, nor could this court fail to perceive the grounds upon which the lower court acted. We think, therefore, that prayer “B” is a substantial compliance with Rule 4, under the circumstances of this particular case.

The question raised by prayer “B” and by exception No. 5 to the refusal of the lower court to grant it, can best be understood by relating the facts of the case. The appellee was employed by the appellant in the upper plant of the latter at Mt. Savage, Maryland. The duty of the appellee was to take bricks from the kilns after they had been burned, and put them on box cars or trucks, by means of which they were to be shipped from ⁶⁵ the plant.

The kilns were hot, and the workmen got quite thirsty and drank quantities of water. The appellee in his testimony said he thought they averaged at least a gallon in eight hours. Sometime in 1940 the company was requested by the men to install a drinking fountain in this upper plant. The company said this would entail too great an expense, but it did provide a laborer with buckets and dippers, and he brought water at the expense of the company from the Old Row Spring to the workmen in the upper plant.

The Old Row Spring was about 400 or 500 feet away from the plant and was used as a source of water by people living in the vicinity. It had been used for 100 years, and so far as the record shows, there had been no previous complaint about its water. Prior to the furnishing of its water to the workmen on the upper level, the testimony is not clear whether the workmen used water from it or from some other place. They did, however, have to bring it themselves.

On July 2, 1941, while the appellee was at work, he commenced to feel ill, had to go home, tried it again the next day, had to leave again, and when a doctor was called, his malady was diagnosed as typhoid fever. The same thing happened to eighteen other workmen employed by the appellant in the upper plant, and thirteen other people who were not employed in the plant, but a number of whom at least were in families of men employed in the upper plant. According to the evidence, typhoid bacilli were in the Old Row Spring, and all of these cases resulted from the use of water from that spring. The immediate question, therefore, is whether the infection of the appellee through water furnished him by his employer was an accidental injury within the meaning of the Workmen’s Compensation Law.

Paragraph (6) of Section 80 of Article 101 of the Annotated Code of Maryland, as repealed and re-enacted by Chapter 773 of the Acts of 1941, reads as follows: “ ‘Injury,’ ‘Personal Injury’ and ‘Accidental Personal Injury’ means only accidental injuries arising out of and in the course of employment and such disease or infection as ⁶⁶ may naturally result therefrom, including frost-bite and sun-stroke resulting from weather conditions, and the occupational diseases specified and enumerated in Section 34. of this Article.” There is, of course, no contention that typhoid fever is an occupational disease. It is not included in the list of occupational diseases enumerated by the Legislature in Section 34 of Article 101, and has never been so held by any court so far as we have been able to find. That fact does not prevent it from being compensable, inasmuch as the Legislature has specifically said that disease or infection naturally resulting from accidental injuries is compensable. The passage of the Occupational Disease Act, codified in Section 34 and the succeeding sections of Article 101, was for the purpose of permitting the occupational diseases therein listed to become compensable.

It was not intended to exclude any nonoccupational disease brought about by accidental injury. The question when is a disease brought about or accelerated by an accidental injury has been discussed in many jurisdictions with varying results, depending on the statutes in force and the circumstances in each parpicular case. Even in cases where the statutes and facts are similar, courts have disagreed, and it cannot be said that any clear trend of authority exists. It has been generally held, however, that the mere contraction of a disease by an employee while employed does not entitle him to compensation under any Act.

Some typhoid fever cases which decide this are Finlay v. Guardians of Tullamore Union, 48 Ir. Law Times, 110 (1914); Gendron v. Brown Corp., 62 Que. Sup. 450 (1924); Hoffman v. Consumer’s Water Co., 1940, 61 Idaho 226 , 99 P. 2d 919 . It has also generally been held that where the disease has an accidental cause, apart from the mere infection, it is compensable.

Bobertz v. Hillside Township, 1939, 17 N. J. Misc. 396, 9 A. 2d 689 ; Id., 1940, 125 N. J. L. 321, 15 A. 2d 796 . Courts generally seem to have adopted the rule that whether or not a disease is compensable depends upon its causation, but there is a wide diverg ⁶⁷ ence of opinion as to what causation is considered accidental and what is not. In the early English anthrax case, often quoted, the deceased was sorting wool in a factory where he was employed. The county court judge found as a fact that anthrax, the immediate cause of death, was caused by the accidental alighting of a bacillus from infected wool on a part of the deceased’s person, which afforded a harbor from which it could multiply and grow.

He also found as a fact that there was no abrasion or pimple, and the intrusion was in the eye. Compensation was awarded and on appeal to the House of Lords, this was affirmed. The several lords delivered opinions, the substance of all of them being that the intrusion of the bacillus in the eye was accidental. Brinton’s Ltd. v. Turvey (1905) A. C., Sec. 230.

This case was discussed later by the lords in the case of Eke v. Hart-dyke, 1910, 2 K. B. 677, and was then stated to be an extreme case, the logic of which could be approved only on the theory that the germ produced an abrasion which developed an infection. This is really no qualification, because the bacillus upon entry, of course, started an injury to the tissues. No abrasion was produced by the bacillus and an abrasion was not the means by which it entered the body of the deceased. In a Scotch case, the deceased was chilled by working in icy water, as a result of which he contracted pneumonia.

This was held accidental by the court, which said: “The present case could never be fairly cited in the future as indicating that the court is willing to hold that a mere ordinary disease entitles the workman to compensation. The court must be satisfied * * * that the disease was attributable to some particular event or occurrence of an unusual and unexpected character incidental to the employment which could, in the light of the decisions, be fairly described as an accident.” Alloa Coal Co. v. Drylie, 1 Scot. Lt. 167. In a New York case, decided in 1890, which, however, was based upon an accident insurance policy, the ques ⁶⁸ tion was whether deceased died from disease or accident.

The cause of death was malignant pustule, a bacillus disease caused by a virus from the hide, hair or wool of animals. The ihajority of the court held that the death was from disease and not accident, bút Judge O’Brien, in a dissenting opinion, held that the inflicttion of animal virus by some exterior force upon the person of the deceased was an accident. Bacon v. United States Mutual Accident Assn., 123 N. Y. 304 , 25 N. E. 399 . The principal New York case was decided in 1925.

The opinion is by Justice Cardozo, afterwards an Associate Justice of the Supreme Court of the United States. This was a blood poisoning case, where the employee of an embalmer handled a gangrenous corpse and got some of the poisonous matter in a cut on his hand and in a pimple on his neck. The court allowed compensation,- but held that in cases where germs entered the system through normal channels of entry, such as the nose or mouth, their inroads c^uld seldom if ever be assigned to a single or determinate act identified in time or space. For this reason, as well as that, such absorption is incidental to the bodily process, the action of such germs, according to Justice Cardozo, presents itself to the mind as a disease and not an accident.

The situation is otherwise when the'channel of infection is abnormal or traumatic. Then, even though a disease is produced, what has happened is spoken of as something catastrophic or extraordinary, a mishap or an accident. Connelly v. Hunt Furniture Co., 240 N. Y. 83 , 147 N. E. 366 . There is a later New York case, decided in 1935, in which the facts seem to be almost identical with those of the case before us.

The court held that the typhoid fever contracted in that case was not an accidental injury and was not compensable. It is probable that the distinction made by Justice Cardozo was followed, but as only a per curiam opinion was filed, the grounds for the decision are not given. McDonald v. Belle Terre Lodge, 268 N. Y. 663 , 198 N. E. 546 . ⁶⁹ The Massachusetts law compensates personal injuries and does not use the words “by accident.” In the early Massachusetts cases, notably Hood & Sons v. Maryland Casualty Co., 206 Mass. 223 , 92 N. E. 329 , which was an infection with glanders, Johnson v. London Guarantee & Accident Co., 217 Mass. 388 , 104 N. E. 735 , a lead poisoning case, the court held that such diseases were injuries. In the latest case, however, the court held that the inhalation of tuberculosis germs did not result in personal injury, but in producing a disease, which seems hard to reconcile with the earlier decisions.

Smith’s Case, 307 Mass. 516 , 30 N. E. 2d 536 . In Ohio, the compensation law was passed in pursuance of the Constitution of the State, which authorized compensation “for death, injuries or occupational disease.” Const., Art. 2, Sec. 35. The court held that the term “injury” did not include typhoid fever contracted in the course of employment and expressed a fear that if a contrary view were taken, practically every disease which might be contracted by workmen would be covered, and the State would be engaged in health and life insurance instead of compensation. The dissenting opinion, however, said that such a result could not follow because the employment itself would have no causal connection with the injury.

In the case before the court, the claimant was an employee of the Park Department of Cincinnati and contracted typhoid fever by drinking water from a spring located in the park. Industrial Commission v. Cross, 1922, 104 Ohio St. 561 , 136 N. E. 283 . In New Jersey the cases turn upon the question whether a disease is an “injury by accident.” The early case follows what the court says is the English view, that where no specific time or occasion can be fixed upon as the time when the alleged accident occurred, there is no injury by accident. Liondale Etc.

Works v. Riker, 1914, 85 N. J. L. 426, 89 A. 929, 931 . The latest case, first heard in the Supreme Court of New Jersey, involves the revival of tuberculosis by reason of fumes. It was a damage suit for failure to provide proper devices to ⁷⁰ prevent the contraction of disease. The court said that in the State of the case before it, the point that the injury was not compensable under the Workmen’s Compensation Act, N. J. S. A. 34:15 — 1 et seq., could not be considered.

This was a defense. The court did, however, state by way of dictum that tuberculosis is not compensable, unless it results from accident, and cited as authority the Liondale Case, swpra. The Court of Errors and Appeals affirmed on the jurisdictional ground, but concurred in the view of the Chief Justice of the Supreme Court that the injury was not compensable. Dailey v. Mutual Chemical Co., 1940, 125 N. J. L. 465, 16 A. 2d 557 ; Id., 1941, 126 N. J. L. 426, 19 A. 2d 778 .

In Minnesota, an employee contracted typhoid fever by drinking infected water furnished in the employer’s factory for the use of the employees. The Minnesota statute provides for compensation for personal injury “caused by accident,” Gen. St. 1913, Sec. 8203, and the court adopted the view which the opinion said had been held by the English, Michigan, New Jersey and Ohio courts. It was held that, as the disease germs were not taken into the system in consequence of anything that appeared suddenly and violently, compensation must be refused.

State ex rel. Faribault Woolen Mills Co. v. District Court, 1917, 138 Minn. 210 , 164 N. W. 810 , L. R. A. 1918F, 855. Michigan cases, however, do not seem to hold as the Minnesota court indicated. In one of the leading cases, an employee of a hotel contracted typhoid fever from drinking water from an artesian well on the hotel property which was piped through the hotel.

She roomed and boarded in the hotel. The court held that typhoid fever was not an occupational disease, that the drinking of the water was an accident, and allowed compensation. The court took the dictionary definition of “accident” as being an unforeseen event or an unexpected, unusual or undesigned occurrence, and said: “How could Miss Frankamp foresee that, if she drank the water supplied to her in the hotel, she would be attacked with ⁷¹ ‘typhoid fever’?” Frankamp v. Fordney Hotel, 1923, 222 Mich. 525 , 193 N. W. 204 . In a later case, an employee in the cafeteria of a hospital contracted scarlet fever, which, from the testimony, she apparently got from a fellow employee.

The court said this was not a personal injury and declined compensation. It attempted to distinguish the case before it and the Frankamp Case, supra, on the ground that: “The court may have been impelled to go as far as it did because of the belief that the defendant, being bound to provide its employees with safe premises and suitable appliances, should have seen to it that the water furnished its employees was free from poisonous germs.” Basil v. Butterworth Hospital, 1935, 272 Mich. 439 , 262 N. W. 281, 283 . In Idaho, an employee died of typhoid fever contracted while cleaning an irrigation ditch. The Idaho statue, Code, 1932, Sec. 43-1801 et seq., compensates “accidental injury incurred in the course of and arising out of his employment.” The court held there was no proof either of accident or injury resulting from an accident.

Hoffman v. Consumers Water Co., 1940, 61 Idaho 226 , 99 P. 2d 919 . In Kentucky, the statute says that compensable injuries shall be “personal injury sustained by the employee by accident” and there is a proviso that “personal injury by accident * * * shall not include diseases except where the disease is the natural and direct result of a traumatic injury by accident.” Ky. St., Sec. 4880. Under this statute, the court held that typhoid fever contracted by an employee drinking impure water furnished by his employer was not a compensable injury.

Mills v. Columbia Gas Construction Co., 1932, 246 Ky. 464 , 55 S. W. 2d 394 . In Texas, the Act defines “compensable injury” as “damage or harm to the physical structure of the body and such diseases or infection naturally resulting therefrom.” Vernon’s Ann. Civ. St., Art. 8309. An employee contracted typhoid fever through the food -or drinking ⁷² water which his employer was required to and did furnish him under his contract pf employment.

The court held that under the wording of the Texas statute it must be shown that the disease is a direct result of an injury. It, however, said: “In those States where the Workmen’s Compensation Act provides that an injury is compensable which is caused' by accident and which grows out