The injury found by the master consisted of arousing into activity the germs of tuberculosis which. were theretofore present in the workman's system in an inactive state. Three causes contributing thereto, and each arising in the course of his employment, are found. Poisonous gases were present in the work-place under normal conditions, but these conditions were aggravated by poor ventilation and by the escape of more gases through leaky valves. A third cause was found in the exposure of the workman to extreme cold, when in a heated condition. The inhalation of the gases "irritated his throat and lungs and gradually wore down his resistance to the tuberculosis germs in his system." The exposure "caused him to have frequent colds which diminished his resistance to the tuberculosis germs."
It was also found that "the injury which the plaintiff received while in the employ of the defendant was not due to any sudden breathing in of a large amount of gases from acid and chemicals, but to the daily breathing in of such gases over the whole period of his employment and to being frequently sent outside the plant on cold winter nights while sweaty to wheel refuse to the River." Upon these facts, accidental injury, arising out of and in the course of the employment, was found.
The plaintiff correctly assumes that the fact that the workman's unsound health contributed to his illness is not an answer to a claim for compensation. Guay v. Company, 83 N.H. 392. The claim does not fail for this reason, but because there was no accident, arising out of and in the course of the employment. Lybolt v. Company, 85 N.H. 262.
In urging that the case is not outside the provisions of the statute, much reliance is put upon the English decisions. It seems to be *Page 438 assumed that the earlier decisions here are based upon the reasoning and conclusions announced there. But the recent conclusions of the courts in that jurisdiction have gone beyond the earlier cases there and have not been adopted here. In Guay v. Company, 83 N.H. 392, the conflict in the English cases is noted, and a considerable number of American cases on the same topic are cited. The further review of the English authorities in Eaton v. Proctor, 85 N.H. 398, was for the purpose of giving adequate consideration to the argument that the decision in the Guay case rested in part at least upon an erroneous idea that unexpected result was treated as an accident by the English law. The decisions were examined for the purpose of showing that the Guay case did not conflict with the later English cases, on this point.
It is undoubtedly true that recent English decisions have greatly extended the application of the English act, and that if those cases were to be followed the plaintiff might be found to be entitled to compensation. The course of reasoning by which the change of view by the English courts has been supported, leaves entirely out of the problem the significance of those provisions of the act which treat the accident or the injury as an event definitely located at some specific time.
The whole relative situation may be summed up in the statement that our decisions have treated the act as affording relief in a definitely limited area, and the boundaries held to have been established are such as can be appreciated by those not versed in medicine or other sciences. On the other hand, the results progressively reached in England have imputed to the parliament an intent to use language in a rather unusual sense, and the opinions have ignored the difficulties which arise on attempting to reconcile the broad range of liability with other sections of the act. See the dissenting opinion of Lord Atkinson in Innes v. Kynoch, [1919] A. C. 765.
The remarks of Lord Robertson in Fenton v. Thorley, [1903] A. C. 443, 452, in relation to argument of counsel, apply as well to some of the more recent decisions. While he applied them to arguments in favor of a restrictive construction of the act, they are equally pertinent here. "Much poring over the word `accident' by learned counsel has evolved some subtle reasoning about these sections. I confess that the arguments seem to me to be entirely over the heads of Parliament, of employers, and of workmen." It is our opinion that our simpler application of this venture into a new field of accountability, accords more nearly with the expressed intent of the legislature.
This view is confirmed by recent legislation, which in two instances has adopted the announced meaning of the term "injury," *Page 439 as used in this statute. Laws 1933, cc. 40, 153. Before this legislation was enacted the judicial interpretation of the statutory limitations upon the liability imposed had been stated in two decisions.
In Guay v. Company, 83 N.H. 392, it was decided that the statute provides for compensation only when there has been an accidental injury, definite as to time and place, and that while the accidental feature might consist of either cause or effect, it must occur in the course of the employment. The decision that recovery was thus limited was based upon the use of the terms "accident" and "injury" in sections five and six of the original act (Laws 1911, c. 163). These terms being there used as evidently naming a fixed event, it was held that such use led to the conclusion that the legislature did not intend to provide compensation for injuries whose origin or manifestation was not thus accidental.
The case was decided five years ago, and was reaffirmed in Lybolt v. Company, 85 N.H. 262. In the later case the employment was causal, but the effect was gradual, and the unexpected and sudden manifestation thereof did not occur in the course of the employment. Recovery was denied because there was no accident in the course of the employment.
In the general revision of 1926 a part of section five of the original act, containing the phrase "during the first fourteen days after an injury" became section thirteen, and a part of the original section six, providing for payment "computed from the time of the injury," became section twenty-one. P. L., c. 178. In 1933 each of these sections was amended in other respects, but the reference to the injury as a point of time from which computations were to be made was in each instance reenacted without change or modification. Laws 1933, cc. 40, 153.
While this is not a direct legislative adoption of the construction placed upon section three of the original act, describing the employer's liability, it manifests a legislative purpose not to depart from the limitations of liability as set forth in the Guay and Lybolt cases.
Further collateral confirmation of this idea is found in Laws 1933, chapter 44. This act amended an earlier one (Laws 1929, c. 140), and provided for compensation to state employees, not exceeding the amounts allowed by the schedules contained in Public Laws, chapter 178, for "personal injuries by accident arising out of and in the course of their employment."
It is my opinion, in which my associates do not agree, that these enactments are some evidence of a legislative purpose not to broaden the description of compensable misfortune, as contained in the *Page 440 original act and construed by the court. Each amendment provided for more compensation, one as to temporary relief (c. 40) the other as to minimum benefits (c. 153), and the third act brought the state as employer within certain provisions of the general law. (c. 44).
In the Guay case attention was specifically called to the facts that there were good reasons for making the relief more general, and that the act was so drawn that it was difficult to ascertain the legislative purpose. In the Lybolt case it was said that argument that the distinction made by the statute as interpreted is unjust and irrational, afforded no ground for extending liability beyond what the legislature had provided. In view of these specific references to the alleged errors of the court in the interpretation of the original act, the course taken by the legislature when thereafter dealing with extensions of the statutory benefits is of more than usual significance.
It is suggested that as the cases which have been decided deal with result as an accident they are not controlling when there is evidence of accidental cause; and that the element of gas escaping through leaky valves may well be treated as a fortuitous causal event answering the call of the statute. But the various requirements of the statute, which severally demand a definite event, apply as much to one class of accidental occurrence as the other. Whichever feature of the misfortune is relied upon to fulfill the statutory requirement of something accidental, it must of course be equally capable of localization.
The specific finding is that the injury "was not due to any sudden breathing in of a large amount of gases from acid and chemicals, but to the daily breathing in of such gases over the whole period of his employment." The injury resulted from the prevailing conditions under which the decedent worked. There was nothing in the nature of an accident, as that term is used in our statute. "The chargeable disability is only that resulting from accidents incurred in employment." Neault v. Company, ante, 231, 232.
The benefits of the act do not include compensation for diseases (whether occupational or not) gradually caused or accelerated by the employment, but which are not manifested in the course of the employment in the manner indicated by the cases heretofore decided. Whether the benefits should be so extended, is a matter to be determined by the legislature.
Petition dismissed.
WOODBURY, J., did not sit: BRANCH, J. dissented; the others concurred. *Page 441