I find it impossible to agree that the majority opinion in this case correctly states the law applicable to the facts in the case before us.
Much has been said in the majority opinion relative to the views of Lord Macnaghten in Fenton v. Thorley as appraised by Professor Bohlen in 25 Harvard Law Review, and I am pleased to note that the majority apparently do not accept the doctrine credited to Fenton v. Thorley that: "* * * nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. It is no longer required that the causes external to the plaintiff himself, which contribute to bring about his injury, shall be in any way unusual; it is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected."
Our discussions in conference lead me to the belief that my brethren, though disclaiming it, are nevertheless unconsciously following Lord Macnaghten's dictum in Fenton v. Thorley, and are able to find an injury by accident in the unexpectedness of the injury itself alone.
If they do not do this, they adopt a theory never herein contended for by appellant.
It is not unusual to sustain the trial court upon some theory other than the one adopted as a basis of its decision, but it being rather extraordinary to reverse the lower court upon a theory of the law and facts not contended for by the appellant, I think it proper to point out that the appellant (claimant) plants himself squarely upon the theory of Lord Macnaghten's dictum in Fenton v. Thorley, and upon that alone. He cites and asks us to follow the reasoning in Sullivan Mining Co. v. Aschenbach, 9 Cir., 33 F.2d 1, 2, from which I quote liberally, supplying italics because appellant's contention is there strongly set forth, and because it, in turn, cites Carroll v. Industrial Commission (relied upon by the majority), wherein the Colorado court, though divided, followed Fenton v. Thorley: *Page 378
"With apparent approval the court quotes from Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, 19 A.L.R. 107, as follows: `Since the case of Fenton v. Thorley, nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. * * * It is enough that the causes,themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether the injury is unexpected, and so, if received on a single occasion, occurs "by accident," is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing.' * * *
"`The statute does not speak of an accident as a separate and distinct thing to be considered apart from its consequences, but the words "by accident" are introduced, as Lord Macnaghten says, parenthetically to qualify the word "injury."' * * *
"`There is no language in the act authorizing the conclusion that as a prerequisite to the right of compensation the claimant must show that he has suffered some injury resulting from some sudden or violent accident.'" (Italics mine.)
Appellant puts all his eggs in this basket, distinctly disclaiming that there is any accident in the case, unless the injury alone may be regarded as an accident. So if we do not agree with appellant on this essential proposition, I do not conceive it to be our duty under the principles of review to strive to reverse the judgment of the trial court upon some facts consideration disclaimed by appellant. And I may add that I do not discover that appellant is prejudiced by such disclaimer. The facts compelled him to assume that position. These principles of review are all sufficiently important to warrant me in setting forth fully appellant's contention. His assignment of error No. 2 is as follows: "(2) The Court erred in refusing plaintiff's requested conclusion of law No. 1, `That the inhalation of smoke and gases emitted by the truck motor during and in the course of the employment of C.R. Stevenson was an accident within the meaning of the Workmen's Compensation Act of the State of New Mexico.'"
It is in the later abandonment of this assignment of error (except as qualified in the argument) that we get a true picture of appellant's contention. Does the workmen's compensation statute provide compensation for injuries which are accidental only in the sense that the injury itself is unforeseen and unexpected even though there is nothing unforeseen and unexpected in the surroundings and circumstances in which the occupation or the work is carried on and no unexpected event has caused the injury? Or, must the injury be the result of an accident in the sense that some unforeseen or unexpected occurrence caused the injury? As to the foregoing assignment of error, I quote pertinent portions of appellant's brief, employing such marks of emphasis as may be deemed advisable. He says: *Page 379
"Plaintiff's second Assignment of Error on the Court's refusal to find in effect that the inhalation of the smoke and gases by Plaintiff was an accident within the meaning of the Workman's Compensation Act is probably not well taken without considering in connection therewith that the ensuing result and consequences of the inhalation of smoke and gases, said consequences under the popular meaning of the word being an accident.
"* * * It is specifically contended that the fundamental error of the Trial Court arose through the Court's view that bodily injury sustained by inhalation of known gases and fumes in an excessive amount with resulting injury and disability does not constitute an accident. Or, stated in another way, on the facts, and evidence introduced in the cause, the Court should have found for the Plaintiff on account of the results of the inhalation of gases and fumes with the consequent disability being an accident. * * *
"There are two or three questions which appear to arise in this Act. Does the Legislature intend that the use of the word `accident' in sub-Sections A and B have as broad a meaning as the provision preceding sub-Section A in which the employee is deprived of any other right of action and the employer and all others are relieved of any liability for `personal injury accidentally sustained'? In a popular use of the word the personal injury was `accidentally' sustained. If the word `accident' as appearing in sub-Sections A and B and C is to be interpreted in a broad sense to include the result as being anaccident independent of whether the cause of the injury was in itself an accident, then the workman has received benefits covering the same scope as that from which the employer and others have been absolved from liability.
* * * * * "In the instant case the truck which burned four and one-half gallons of oil in the course of seven hours and which emitted unusual quantities of smoke and fumes was driven by the claimant only for the seven hour period and during which period he inhaled fumes and gases from the truck which caused the pneumonia. Ofcourse the claimant knew he was inhaling the fumes and gases but he did not expect or foresee the result. In common parlance or by popular conception what really occurred constituted an accident." (Italics mine.)
In my view, the only way appellant could prevail would be upon the basis of the proposition he urges. While the majority have apparently rejected appellant's contention, as I do, they have indulged much argument in support of it, and I think a first duty of mine is to present the opposing view.
I think it proper to say that in the same essay quoted by the majority from the Harvard Law Review article, Professor Bohlen expressed the opinion that, "The English courts, in their efforts to remedy the omission of Parliament to provide relief for workmen incapacitated by disease, *Page 380 have opened a wide door to claims of a highly litigious character," and continued: "At first glance there appears little or no abstract justice in giving relief to one whose physical structure is violently deranged while at work, and denying it to one who is incapacitated by disease clearly proven to have been contracted in his employer's service. But there is a great practical difference between the two. Where there is a distinct change in the physical structure of the plaintiff, it is in the vast majority of cases possible and even easy to show some definite occurrence in the course of his service which has produced it, or at least the injury is generally one not likely to result from any other cause. The difficulty which will arise if compensation is allowed for disease lies in the fact that not only its existence but its origin can as a rule be proved only by the statement of the sufferer himself, corroborated by the testimony of his physician, which usually goes no further than a statement that the diseasemight be caused by some incident of the employment. Such claims are not only particularly easy to fabricate, but there is a great tendency in a sufferer to ascribe, without conscious dishonesty, his illness to some cause from which he may hope to obtain relief. But even if they are honestly put forward, the success or failure of such claims must depend upon a highly doubtful issue of fact. If such claims be allowed there will be a natural tendency on the part of every workman who suffers from disease to ask the opinion of the court whether it arose out of the business, and even where it is fairly clear that the illness did so arise, the interest of the employer will naturally induce him to contest the claim in the hope that the opinion of the court may be in his favor."
To my mind the Supreme Court of Arizona, in Pierce v. Phelps Dodge Corporation, 42 Ariz. 436, 26 P.2d 1017, 1020, completely refuted the reasoning of Lord Macnaghten in Fenton v. Thorley, saying of the House of Lords' decision in that case: "But it failed apparently to see that the only possible effect of the use of the words `injured by' in the phrase is to establish that the accident referred to therein is the cause and not the effect. The injury referred to is obviously a result. If, then, in this connection the word `accident' is also a result, it is tantamount to saying that the phrase means `an injury by injury' or a `result by a result.' Notwithstanding our respect for the decisions of so eminent a tribunal and the similarity of the language in the two acts, we cannot believe that our Legislature when it adopted our Compensation Act intended to attribute to ordinary words such an absurd meaning. If, on the other hand, the phrase was intended to mean a result from a certain kind of cause, it is intelligible and has a fixed and definite application. Had our Legislature intended that the words `injury' and `accident' both meant a result, it should and doubtless would have joined them by the conjunction `or' rather than the preposition `by.'" *Page 381
The court quotes from Honnold Workmen's Compensation Laws, Vol. 1, page 274: "The word `accident' refers to the cause of the injury, and it is here used in its ordinary and popular sense, as denoting an unlooked for mishap, or an untoward event, which is not expected or designed by the workman himself, as a physiological injury as a result of the work he is engaged in, an unusual effect of a known cause, a casualty. It implies that there was an external act or occurrence which caused the injury or death. It contemplates an event not within one's foresight and expectation resulting in a mishap causing injury to the employee."
It is quite interesting to note that the English courts have been on both sides of the question. Prior to Fenton v. Thorley, the holdings were similar to that in Pierce v. Phelps Dodge Corporation, supra, and then, just lately, the House of Lords, in Fife Coal Company, Limited v. Young, decided March 14, 1940, reported in The Times Law Review, March 29, 1940, at page 508, after many years of grief in attempting to apply Lord Macnaghten's pronouncement, swung away substantially from that view and came more nearly to the view expressed by the Arizona Supreme Court in the Pierce case, namely that the injury must be caused by an accident.
A few excerpts from this late opinion will show the basis for the statement I have just made. Lord Caldecote, in explaining several cases decided in favor of the employer, said: "In all of them the facts were such as to make it impossible to identify any event which could, however loosely, be called an accident. In these cases the workmen failed, not because a disease is outside the purview of the Workmen's Compensation Act altogether, but because the burden of proof that there had been an accident was not discharged."
Again referring to another case, Lord Caldecote said: "The case is merely an illustration of the necessity of establishing facts which justify a finding that the injury was due to some specific unlooked-for mishap or untoward event. Where those facts are not proved the workman cannot succeed, and it makes no difference whether the incapacity is due to such an injury as a rupture or sprain or to a disease."
Lord Atkin concurring, speaking of what is necessary for recovery by the workman, said: "It is a physiological change brought about by an undesigned, untoward event happening in the employment, * * *." (Italics supplied.)
And again: "(2) It is necessary to emphasize the distinction between `accident' and `injury,' which in some cases tends to be confused. No doubt the more usual case of an `accident' is an event happening externally to a man. An explosion occurs in a mine, or a workman falls from a ladder. But it is now established that, apart from external accident, there may be what I have called internal accident. A man suffers from *Page 382 rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw or lifting his hand. In such cases it is hardly possible to distinguish intime between `accident' and injury. The rupture which is accident is at the same time injury from which follows at once or after a lapse of time death or incapacity. But the distinctionbetween the two must be observed. The incidence of a bacillus may be an accident, and an accident arising out of the employment, as in the anthrax and the streptococci from bone dust cases. In such cases the employment gives rise to the bacillus:the fact that it finds a suitable entrance in an existing wound,scratch, or other orifice which themselves are not due to theemployment is irrelevant. They may be `accidental,' but if that accident is not related to the employment it matters not. On the other hand, the employment may give rise to the wound or scratch through which a non-employment bacillus enters. In such cases the accident has caused the wound or scratch which is the injury. Without the bacillus the injury is trifling, with the bacillus the injury becomes so aggravated that it causes incapacity or death. Compensation is awarded because the incapacity so caused is the direct result of the accident, just as, if negligence causes a wound, the party negligent has to pay in full whether the wound heals or becomes infected from outside, excepting possibly cases where it could be said that a new agency intervened." (Italics supplied.)
It is thus seen that the House of Lords, in the Fife case, has adopted the test suggested by Professor Bohlen in his criticism of Fenton v. Thorley and the earlier English cases following it, namely, that in order for the workman to recover, there must be "a distinct change in the physical structure of the plaintiff" or, as Lord Atkin phrased it, "a physiological change" brought about by accident.
It would be an almost hopeless task to analyze and reconcile the cases which deal with the question. The entire matter being of statutory origin, each case construes its own particular statute, and no case is of any value unless the variations of the statute under consideration be kept in mind. The student will find in Hendrickson v. Continental Fibre Co., 3 W.W.Harr., Del., 304, 136 A. 375, 377, an attempt to bring some order from the chaos of the great mass of cases by dividing the jurisdictions into three separate classes and setting out a further citation of annotations which are the repositories of many citations construing the various acts. In that case the court said that it found no dissent from the basic principle that where an injury is only made compensable under the statute when it is sustained by accident, that it is only embraced within the statute when it is or may be referable to a definite time, place or circumstance (citing cases). This is *Page 383 followed with an important suggestion which we elaborate, and which is very helpful in our consideration because of the peculiarities of our statute relative to notice. The Delaware Court said:
"Section 3193l provides that the employer shall not be liable for compensation in case of injury to an employee unless the employer `shall have actual knowledge of the occurrence of the injury' or unless notice be given to the employer `within fourteen days after the accident.' Other provisions cover cases where notice is given `within thirty days after the accident' and `within ninety days after the accident.' The section further provides:
"`Unless knowledge be obtained or such notice given within ninety days after the accident, no compensation shall be allowed.'
"Section 3193x requires an employer to make a report of all injuries to the Industrial Accident Board `within ten days after knowledge of the occurrence of an accident resulting in personal injury.'
"It must be noted, as argued on the helpful brief of the plaintiff, that the notice prescribed by each section of the Act is not required to be made a certain time prior or subsequent to an injury, but prior to or subsequent to `an accident.'
"It is apparent that in cases such as the one under consideration no notice as required by the Statute can be given. It is alleged that the disease was contracted not by violence to the physical structure of his body but slowly, gradually and imperceptibly due to the cumulative effect of the chemical."
This same thought is mentioned in Moody v. State Highway Department, 56 Idaho 21, 48 P.2d 1108, 1110, where the court was considering the period of limitations for the filing of claims for compensation, and stated that prior to 1927 the statute had required that a claim for compensation must be made within one year from the date of the injury, and that the legislature in 1927 had substituted the word "accident" for the word "injury", and decided that the legislature must have had some object in view in making that substitution, and said: "We must presume that it did not do so idly and without reason. If the Legislature had intended that the commencement of the limitation period, within which claims could be made on employers, should continue to be from the date of the first manifestation of a compensable injury, and not from the date of the accident, it would not have made the substitution. We have no doubt that when the Legislature substituted the word `accident' for the word `injury,' it intended to change the date from which the time for making claim should commence to run, and to change that date from the first manifestation of a compensable injury to the date of the accident."
The importance of this notice feature is pointed out by Professor Bohlen in the article referred to as follows: "While there may seem no particular justice in allowing compensation for an injury which *Page 384 happens on a definite occasion, and excluding compensation for one of gradual growth though just as much the result of the work upon which the sufferer is employed, there are practical considerations which make it desirable to do so. One of the most valuable provisions in the English acts (and one which is being copied in most of the American legislation upon the subject) is that contained in sub-section 2 of section 2, which requires that notice of the accident be given to the employer "as soon as practicable after the happening thereof." The master is thus able personally to investigate the matter soon after its occurrence and verify the justice of the claim or detect any fraud or imposition; and so it conduces to the settlement of well-founded claims without further litigation and leads to the discovery of malingering and simulation. If the date of the accident be known, it is usually possible to find impartial witnesses who have observed and can remember the occurrence. This is certainly so if the injury is due, as it usually is, to some abnormal incident in the operation of the business, to some unusual act of the claimant himself or his fellow workmen, or to some unusual condition of or breakdown in the machinery or plant. Even if there is nothing more than a sudden and unexpected injury the result of some normal and usual operation or condition of the business, this in itself is generally sufficiently striking to make it probable that the circumstances will be observed and remembered by others than the claimant himself. Thus the employer is able by independent testimony to verify the workman's claim, and either settle it at once or to demonstrate so clearly its fraudulent character that the workman will abandon it. And even if the claim is neither settled nor abandoned, but must be litigated, there is apt to be reasonably impartial testimony upon which the court can proceed in awarding compensation."
Sec. 7 of our 1937 Workmen's Compensation Act declares: "Any workman claiming to be entitled under this act to compensation from any employer on account of injury suffered by accident arising out of and in the course of his employment shall give notice in writing of such accident and of such injury to such employer within thirty days after the occurrence thereof, unless prevented by such injury or other cause beyond his control, and, if so prevented, as soon as the same may be reasonably done, and at all events not later than sixty days after such accident."
An examination of the workmen's compensation statutes of other states shows that in twenty-six states the requirement of notice is that notice of the injury shall be given, and in nine states notice of the accident shall be given. Several other statutes require notice of the accident resulting in the injury. So far as our search discloses, the Arizona statute is nearest like ours, the language being that "the employee shall forthwith report such accident and the injury resulting therefrom." Code Ariz. 1939, § 56-966. *Page 385
These considerations and the language of our statute impress me with the view that our legislature did not so phrase our statute idly and without reason, but consciously differentiated between "accident" and "injury", and required "notice to be given of each occurrence", and strongly argues that our legislature meant by "accident" some incident or occurrence external to the claimant's physical condition. There is indicated by this legislative thought that an accident may occur at one time and that an injury caused thereby may not find its first manifestation until a later date, so our statute seems to permit the notice to be given within thirty days after the manifestation of the injury has occurred provided the notice also details the accident, and provided further that the manifestation of the injury has occurred and notice given within sixty days after the accident causing such injury. It is possible that in a context where this differentiation does not exist, the way would be open to some confusion in the interpretation of the words "accident" and "injury", but no confusion exists where, as in our act, it so plainly differentiates between "accident" and "injury", and requires notice of each.
The Supreme Court of Idaho handed down its decision in Sonson v. Arbogast, September 28, 1939, 60 Idaho 582, 94 P.2d 672, holding; "Streptococcus pneumonia causing death of dairy employee was not caused by `accident' so as to make the death compensable, notwithstanding evidence that sudden changes in temperature incurred in the course of employee's duties made the disease a natural consequence of the work, in absence of showing that there was some noticeable mishap, fortuitous incident, or sudden or manifest change in working conditions."
Citing Moody v. State Highway Department, supra, the court said: "A careful analysis of the cases above cited will disclose that none of them is direct authority for the contention that the attack of streptococcus pneumonia from which appellant suffered was the result of an accident. In each of the cases mentioned there was either some noticeable mishap or fortuitous incident of which the employee was conscious and following which injury resulted; or else there was some sudden or manifest change in the conditions or surroundings under which the employee was working constituting the accident. Here nothing of the kind is shown. The conditions under which Sonson was working were the same throughout the entire period of his employment. He performed his work in the same manner from day to day and was conscious of no mishap, hazard, or fortuitous occurrence nor misadventure to him or on his part. Under such circumstances, to say there was anaccident would be to distort all definitions of the word and do violence to the common understanding of the language used by the legislature in writing sec. 43-1809, I.C.A."
This decision is valuable for the further reason that it contains a collection of cases in which it has been held that a disease (pneumonia for illustration) has, under *Page 386 some circumstances, resulted from "accident" and another list of cases where, under different circumstances, it was held not to have resulted from "accident".
The foregoing language of the Idaho Court last quoted is particularly applicable to the case at bar. The conditions under which the appellant Stevenson was working were the same throughout the entire period of his employment. He performed his work in the same manner during the entire period and was conscious of no mishap, hazard or fortuitous occurrence nor misadventure to him or on his own part. In fact, Stevenson said in his claim that he really didn't think that the experiences of the day were serious until about three or four hours after he got home. The recitals in the claim of Stevenson for compensation and in the record and in the findings quoted show that Stevenson knew that the truck he was running burned lots of oil, and that the fumes and dust filled his lungs and it was hard to breathe, but he continued to work under these conditions which were not unusual to driving a truck on a road building job. This is no accident. See Prouse v. Industrial Commission, 69 Colo. 382,194 P. 625, 626, 627.
Because the majority, or in any event the Chief Justice, has placed so much reliance on certain Colorado cases which they cite, I venture to place some emphasis on the Prouse case last cited herein. I quote at length from this case:
"George Prouse on the 15th day of December, 1917, was working with others in the Mitchell mine. They broke into an old, inclosed entry, whence came foul air and dioxide gas. Foul air and gas continued in the mine for some weeks, and until Prouse was compelled to stop work.
"About January 1, 1918, his physician was called to see him, and told him that he was working too hard in bad air, and advised him to lay off. About the 12th or 15th of January the physician was called again, and found him suffering from headache, pain all over, sore throat, and high temperature. He later went back to work, however. Two or three days later the doctor found him much worse; he was taken to a hospital, and about the 17th of February died. The bacteriologist's tests showed septicaemia. Dr. Braden, the physician who attended him, testified that, in his opinion, the immediate cause of death was septicemia; that a contributing cause was his failure to show the average resistance, and that was `the result of working in a poorly ventilated atmosphere.'"
The court, in its opinion, states: "The question is whether the death of George Prouse was proximately caused by an accident. There is no evidence that such is the case. The evidence is undisputed that the man died of infection by the germ of septicaemia or pyaemia. There is no evidence as to where he got that germ. There is no evidence that the sudden inhalation of gas and foul air from the old workings caused the disease, but the evidence is that the continued inhalation of foul air in the mine rendered the patient more susceptible *Page 387 or less resistant to the infection, and so contributed to the death."
In this case there is no evidence as to where Stevenson got the pneumonia germ. There is the same failure of proof of any accident, or of any direct causation between breathing motor fumes and the pneumonia. In this case, the only effect of the motor fumes was a lowering of resistance which made Stevenson more susceptible to the pneumonia germ.
I quote further from the Colorado court:
"* * * Prouse did not die of the poisonous gas; he died of septicaemia or pyaemia, a disease caused by a definite infection by a germ, which has been isolated by the bacteriologists and classified. The only connection which the gas and bad air had with this disease, according to the undisputed testimony of the physicians, was that it depleted the patient's system and rendered him more susceptible or less resistant to it. They do not say that he would not have contracted the disease if he had not worked in the gas, or would not have died of it, nor do they express such opinions.
"Bad air makes a man more susceptible to tuberculosis. Every clerk works part of the time in bad air. If he contracts tuberculosis no physician can deny that the bad air probably made him susceptible, and so was a contributing cause. If so, is he entitled to compensation? So of any other germ disease, e.g., typhoid fever, infant paralysis, meningitis, etc."
It is thus seen that the Colorado Court refused to apply the Workmen's Compensation Act to testimony almost identical with that shown in the record of this case. There was a dissenting opinion in the Prouse case which calls attention to the Carroll case cited by the majority of this Court. It is thus evident that the Colorado Court had before it both the Carroll case and the Prouse case at the same time, and a majority of the Court distinguished between the two cases and thus established in Colorado a principle contrary to the view of the majority here.
In three of the Colorado cases cited by the majority, there is no intervening germ disease which was the actual cause of the injury. The first case cited by the majority is Carroll v. Industrial Commission, 69 Colo. 473, 195 P. 1097, 19 A.L.R. 107. This is the same case cited in the dissenting opinion in the Prouse case. The distinction made by the Colorado Court is that the dust laden air in the Carroll case was the cause of a fatal attack of heart failure. There was no intervening germ disease, which took advantage of lowered resistance.
Likewise in Columbine Laundry Co. v. Industrial Commission,73 Colo. 397, 215 P. 870, cited by the majority of this Court, there was the feature of a sudden, unusual and excessive amount of motor fumes and the court found an extra large amount present on that morning.
The next Colorado case cited by the majority is that of Industrial Commission v. *Page 388 Ule, 97 Colo. 253, 48 P.2d 803. In that case, again there was no intervening germ disease and the death resulted from an unusual and excessive exposure of a poisonous dope. It was the dope itself which caused the injury and death.
It is thus seen that the Colorado court, by refusing compensation in the Prouse case and basing its decision in each of the other cases upon the sudden, unusual and excessive exposure, has made exactly the same distinction which I make in this case.
There are many cases cited in the majority opinion. A close examination of these cases permits classification into three general groups. In none of the groups is there the same fact situation which exists in the case at bar.
The majority opinion cites seven cases in which the injury was caused by an unexpected strain. In none of these cases is there any intervening germ disease. The line of reasoning adopted by the courts in awarding compensation in these cases is substantially this: if a man is lifting and his foot slips and he strikes an object, there is clearly an accident; if instead of his foot slipping a bone or muscle in his body slips and injures another part, there is still an accident. In this group of cases where there was no slipping of the muscle or bone, there was always an external trauma. I do not for a moment contend there may not be an internal trauma.
Among the cases cited in the majority opinion may be found another group of cases involving injury from sunstroke, frostbite or other unusual and extraordinary action of the forces of nature. The point involved in this type of cases is not generally whether the injury is accidental. It is usually assumed that they are accidental. The point involved in such cases is whether an injury conceded to be accidental arose out of and in the course of the workman's employment. I am not in disagreement with the proposition that accidental injury occurring from lightning, heat stroke, frostbite or other catastrophic natural causes is compensable when it grows out of the employment. There is no such issue in the case at bar. There was no contention made by Stevenson in the trial below, and no finding by the trial court that any injury resulted from a natural cause.
The third group of cases cited in the majority opinion consists of cases in which a poisonous substance accidentally came in contact with the injured workman, and the action of the poisonous substance on the workman was the injury for which compensation was allowed. A few cases in this group involve injury to the body from a substance not necessarily poisonous but which, under the circumstances of the case, did actually injure the body of the workman; in other words, produced the physiological change referred to by the House of Lords in the Fife case, supra.
The essential difference between this group of cases and the case at bar is that the escape of the substance itself is unusual and unexpected, and thus constituted an accident. In the cases falling in all three of *Page 389 the groups last mentioned, it would not be difficult to find from the circumstances that the workman had discharged the burden of proof that there had been an accident and that such circumstances would justify a finding that the injury was due to some specific unlooked for mishap or untoward event.
To put it another way, I can readily accept the formula of Lord Caldecote, laid down in the House of Lords' decision in the Fife case, supra, that where the facts are such as to make it impossible to identify any event which could be called an accident the workman cannot recover, but if the facts were such that the workman discharged the burden of proof of showing "that there had been an accident" the workman can recover, or, as Lord Caldecote said in another place in the same opinion, the workman is under the necessity "of establishing facts which justify a finding that the injury was due to some specific, unlooked for mishap or untoward event. Where these facts are not proved the workman cannot succeed."
I also agree with the statement of Lord Atkin in the same case that there may be internal accidents. It is not difficult to agree with Lord Atkin that where a man suffers from rupture, an aneurism bursts, the muscular action of the heart fails, while the man is doing his ordinary work, turning a wheel or a screw or lifting his hand, that in such cases it is hardly possible to distinguish in time between "accident" and "injury". "The rupture which is accident is at the same time injury from which follows at once or after a lapse of time of death or incapacity. But thedistinction between the two must be observed."
The temptation is great to take up the cases cited by the majority seriatim and distinguish them and to cite with quotations many decisions of American courts contra to the holding of the majority. I think I would not be justified in consuming the time and space necessary to do that.
I will endeavor now as briefly as possible, at the expense of some repetition, to state my views as to the proper interpretation of our statute and its application to the facts in the case at bar. In the first place, as we said in Martin v. Pine Lumber Co., 34 N.M. 483, 284 P. 115, the Workmen's Compensation Act should be liberally construed, still we should not adopt a construction contrary to the evident legislative intent, and to sound reason and policy.
There seems to be little dissent from the basic principle that where an injury is only made compensable under the statute when it results from accident that such injury is only embraced within the statute when it is or may be referable to a definite time, place or circumstance. The authorities are also in accord that the circumstance must arise suddenly. In Echord v. Rush, 1927,124 Kan. 521, 261 P. 820, 822, the Kansas Supreme Court, which has been very liberal in its holdings in these cases, said: "One of the elements entering into a definition of the word `accident,' as used in compensation statutes, is that of suddenness. There *Page 390 must be a time, place, or circumstance when the thing called an accident happened, took place, or occurred. All the courts seem to agree on this, although there may be difficulty in determining whether the thing, or things, being considered constituted an accident."
The Missouri legislature formulated the following definition, thus choosing between the various interpretations announced by the courts: "The word `accident' as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury." Missouri Act, Sec. 3305 (b), R.S.Mo. 1929, Mo.St.Ann. § 3305 (b), p. 8238.
I venture to cite this statute because it reflects the general judicial understanding of the meaning of the word "accident", and because it is my opinion that our legislature has accomplished the same end by requiring that the employee claiming compensation shall give notice of both the "accident" and of the "injury". It is difficult to read this phrase otherwise than as speaking on the assumption that the injury is one thing and the accident another. This sort of notice is of value because the employer will, receiving the notice of the accident, be afforded an opportunity to inquire among those who were near the workman at the time he states in his notice the accident happened. It is also interesting to note that the Pennsylvania Superior Court, in Micale v. Light, 105 Pa. Super. 399, 161 A. 600, 601, without any statutory definition such as existed in Missouri referred to the necessity of objective symptoms or objective happenings. That was a case where the workman had been working in a wet place, and contracted a chill which brought on pneumonia or was a symptom of the oncoming pneumonia, and the court said: "There was no unusual occurrence or untoward happening about it. The chill, which heralded the attack of pneumonia and was a symptom of the disease, was not the unusual occurrence or untoward happening contemplated by the law. They refer to objective happenings, notto subjective feelings or symptoms."
In other words, it is some happening "traceable with reasonable certainty by any reliable method of proof" (Michigan Law Review, post), a "physiological change" which will enable the workman to sustain the burden of proof that there had been an accident resulting in an injury. Fife Coal Co. v. Young, supra.
It is manifest that the notice required by our statute does not relate to some subjective symptoms or feelings of the workman. It seems to me that no argument is required to establish that our legislature could not have intended to require notice of something which was locked solely in the feelings of the workman. The phrases "objective symptoms" and "subjective symptoms" have been employed for a very long time and are well understood. In Ballentine's Law Dictionary it is said of *Page 391 objective symptoms: "Those symptoms which a physician by the ordinary use of his senses discovers from a physical examination. They are to be distinguished from subjective symptoms, which are those which he learns from the expressions of the patient."
What kind of a notice may a workman give "of the accident and of the injury" when all he complains of is undue fatigue resulting from the working conditions of his employment? Is the fatigue the accident or the injury? Perhaps if the fatigue or exhaustion resulted in a collapse we might have an objective symptom. If he tells his employer merely: "The work under those conditions caused my powers of resistance to disease to become lowered," I do not think he has given notice of an accident and injury therefrom, within the meaning of our statute.
"The cause of injuries to the physical structure of the body is in general, though not always, capable of being shown with reasonable certainty by some fairly reliable method of proof. A man's arm can scarcely be broken or his fingers cut or crushed without those near to him knowing it. Even where the injury is an internal strain or rupture, the sufferer usually shows some immediate external sign of it, and it can be at least shown that he was or was not, at or about the time when the strain was first felt, engaged in work capable of producing it, and, in the majority of cases, the injuries are of a sort which do not usually result from causes other than those found within the ambit of his work in his master's employment.
"On the other hand, diseases, except of certain very special kinds, may be contracted anywhere, as everyone knows. Everyday experience shows that there is nothing more difficult to say with any precision than where, or when, or how a sufferer contracts his illness. The only method of proof available is for the claimant to prove that he was subjected in his employment to certain conditions to which he attributes his illness. This would be supplemented by the testimony of that most unreliable class of witness, the partisan medical expert, to the effect that such conditions might and in this case probably did cause the illness in question. There is no doubt that in some few cases the evidence might with precision show that the illness must have been caused by certain unsanitary conditions and that the sufferer had not encountered such conditions except in the course of his labor. But such cases are comparatively rare." Workmen's Compensation Acts, Francis H. Bohlen, Columbia Law Review, Vol. 14 (1914), page 563, 648.
These considerations impel a commentator in Michigan Law Review in 1929 (Vol. 19, page 640) to say: "It is for this reason that vocational diseases are not included within the statutes, because the cause of the injury is not traceable with reasonable certainty by any reliable method of proof. To allow such speculative claims would be to encourage fraudulent practices and would contribute to defeating *Page 392 the broad purposes underlying the compensation laws. The question whether the cause of the injury is traceable by any reliable method of proof should, therefore, determine whether recovery should be allowed under the `sustained by accident' clause. It is by this test that it must be decided whether an unexpected and unintentional injury constitutes an accident or whether actual physical violence is necessary."
I think these considerations caused our legislature to require that notice be given "of the accident and of the injury", and this provision is of large importance in construing our statute.
It may be that the appellant Stevenson did not expect to get pneumonia while working on this road making job, but in my opinion, no reasonable man could expect to do that kind of work, breathing dust from highway construction and gas and oil fumes and smoke from the road making equipment, without some impairment of his vitality. The lowering of the resistance of appellant was not due to accident. I think in this connection that we should be careful to consider what was the injury. True, the disability was the result of the pneumonia and we may assume that the pneumonia was the result of lowered resistance, but we have got to consider that the lowered resistance was the "injury by accident" if we are to reverse the trial court. I cannot find anything in the findings or in the evidence that the lowered resistance wascaused by accident. This lowered resistance, if considered to be the cause of the subsequent disease manifestations not being brought about by accident, is not compensable under the provisions of our Workmen's Compensation Act.
It is perhaps conceding too much to say that lowered resistance merely would be a personal injury, even if caused by accident. At this point it is my intention to review briefly a few cases which, even though they adopt the principles of Fenton v. Thorley generally, are unable to apply the definition of injury by accident formulated in Fenton v. Thorley to disease cases, and particularly to the kinds of diseases of which pneumonia is an example. For instance, in 1923 the Kansas Supreme Court, in the case of Hoag v. Kansas Independent Laundry, 113 Kan. 513,215 P. 295, had before it a case where an engineer who, as part of his employment, cleaned boilers and was overcome by excessive heat of the boilers while cleaning them. He was not prostrated, but was disabled. The disability was that his power of physical resistance was reduced so that pneumonia bacteria immediately became active, and he died of pneumonia seven days later.
It was held that death did not result from personal injury by accident within the meaning of the Workmen's Compensation Act. It is important to note that four years before this decision, the Supreme Court of Kansas, in Gilliland v. Ash Grove Lime Portland Cement Co., 104 Kan. 771, 180 P. 793, decided a case where a workman's employment required him to *Page 393 break rock in a quarry with a sixteen pound sledge and load the rock into a car, which was hard work. At noon he was in apparent good health and spirits, and ate all of the lunch which his wife brought to the quarry for him. In the afternoon, while at his working place, and shortly after he was seen beating a large rock with his sledge, he suffered a pulmonary hemorrhage, from which he died before medical aid could reach him, and it was held that the facts stated indicated an injury by accident and injury arising out of his employment. The court accepted the definition of injury by accident laid down in Fenton v. Thorley and quoted from the opinions of Lord Macnaghten, Lord Robertson and Lord Lindley. They also reviewed the case of Clover, Clayton Co. v. Hughes, decided by the House of Lords in 1910. In the later case of Hoag v. Kansas Independent Laundry, supra [113 Kan. 513, 215 P. 296], which is the subject of my present comment, the court referred to the earlier case and distinguished it in the following manner: "`The circumstances were clearly such that the jury would have been authorized to relate the hemorrhage to blood pressure intensified by vigorous muscular exertion. Relating the hemorrhage to physical exertion, rupture of the pulmonary blood vessel by force from within was as distinctly traumatic as if the canal had been severed by the violent application of a sharp instrument from without.' 104 Kan. 773, 180 P. 794."
It is apparent that the Kansas court was satisfied that the circumstances surrounding the injury were sufficient to have authorized a jury to relate the hemorrhage to an accident.
But in the pneumonia case they are not able to do that. The court says:
"On this occasion the heat was excessive. Excessive in relation to what? Either in relation to the usual temperature when the boilers were cleaned, or in relation to ability to withstand the heat incident to cleaning the boilers. In either case the engineer was inattentive to or misjudged effect of the temperature on his power of endurance. For this reason, what happened to him was unexpected and, if what happened had been identifiable injury then occurring, the event could have been described as personal injury by accident.
"The heat of the boilers overcame the workman. It did not overcome him to the extent of prostrating him, but it disabled him. The disability consisted in weakened power of physical resistance to pneumonia micro-organisms, which at once became active, causing pneumonia, of which he died seven days later. He did not unexpectedly come in initial contact with pneumonia bacteria by washing the heated boilers, as the workman's wounded foot came in contact with infectious matter in foul water, and the pneumonia bacteria were not intruded into his system by washing the heated boilers, as the workman received typhoid bacilli in drinking water. There was no definite physical lesion *Page 394 producing a specific kind of disability, such as occurs in heat stroke. There was nothing resembling the sudden hyperemia which resulted from taking ice water into a superheated stomach. There was nothing resembling hernia, bringing a surgical operation and milk leg in its train. Disease-producing bacterial activity was stimulated by a favorable condition; the favorable condition was lowered physical resistance to cause of disease; the lowered physical resistance was produced by work in excessive heat; and in the last analysis the question is whether unexpected reduction of resistance to a bacterial disease, resulting from performing work under some misjudged or ignored circumstance or condition, constitutes personal injury by accident. The court is of opinion the question should be answered in the negative.
"Pneumonia may follow a surgical operation, and may follow the breaking of a limb. The shock lowers vitality to such an extent that militancy of the bacteria prevails. Lowered vitality may also come from exhaustion from heavy work, from fatigue, from long hours of work, and from a great variety of other causes which expose a workman to pneumonia and other diseases. The result is there is a twilight zone between clear personal injury by accident, which is covered by the Compensation Act, and sickness, which is not covered."
The court continued: "In this case it is proposed to dispense with hurt, and make debility alone stand for injury, in the sense of the statute."
As I have pointed out, the House of Lords in the Fife case, supra (1940), after about forty years' struggle with Lord Macnaghten's dictum in Fenton v. Thorley, has come to the conclusion that they could not "make disability alone stand for injury, in the sense of the statute" and has said that however difficult, the distinction between accident and injury and between injury and incapacity must be observed.
The court's findings in the case at bar may be condensed into the statement that the inhalation of the smoke and gases thrown off by the motor reduced the resistance of Stevenson to such an extent that the pneumococci germs were enabled to multiply and become active in the body of Stevenson, resulting in pneumonia. The court finds that the truck that Stevenson was operating had been discharging a larger amount of fumes and smoke than other trucks on the same job, but that there was no unusual or excessive amount of fumes and smoke given off by the truck No. 54 on March 19th, the amount of fumes and smoke given off by the truck being substantially the same as the amount given off for a period of approximately thirty days. The court further found, "There was no accident and no unusual or unexpected occurrence on that date." The evidence fully supports this finding, and it is impossible to find any sudden or violent upset to the physical structure of the claimant *Page 395 Stevenson on that date. Stevenson made no complaint during the entire day to anybody about the work he was doing, and in his claim for compensation says: "I told the grade foreman, Dick Gentry, that I was feeling badly that night when I came into Roswell after work. I did not tell him what made me so sick because I didn't really think it was serious until about three or four hours after I got home." This is like the Kansas case of Hoag v. Kansas Independent Laundry, supra, where compensation was denied.
The case of Landers v. City of Muskegon, 196 Mich. 750,163 N.W. 43, 44 L.R.A. 1918A, 218, is useful at this point. In that case a city fireman, a part of whose regular duties it was to help extinguish fires, and in doing which it was not unusual for him to get wet, and who contracted pneumonia after becoming wet at a fire, did not die from an "accident" which means an unlooked for mishap or an untoward event not expected or designed. The court quoted the definition of accident given in Fenton v. Thorley as follows: "The expression `accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed."
The court went on to say that since it was not unusual for firemen to get wet at a fire:
"We must therefore conclude that pneumonia was brought on, not by an unexpected event, but by an event which was an incident to his regular employment.
* * * * * * "If it can be said in the present case that the diplococus germ was dormant in the system of the deceased, and that it was aroused to activity by his exposure at the fire, the case must fail, because the thing which aroused the germ into activity was caused by events which were incident to his regular employment, and not by the unusual and unexpected event."
That is exactly the case at bar. In addition to the findings of fact by the court, the claimant is of course bound by his own claim for compensation. He says that he had a hard day, that he breathed dust and smoke and gas from the work he was doing in constructing a road. Undoubtedly, as we have all had an opportunity to observe, excavating and grading a road with a heavy truck produces a good deal of dust and it is hard work. If added to this is the smoke and gas fumes from the truck while in operation, it seems to me that it would be rather expected than otherwise that the driver of such truck would suffer from exhaustion, but there is not the slightest evidence that the claimant Stevenson did not expect to breath dust and gas and smoke, and no reasonable man could expect not to suffer a reduction of resistance to any bacterial diseases which might assail under such favorable circumstances. As the Kansas court points out, the workman either misjudged his own resisting powers or misjudged *Page 396 or ignored the circumstances or condition. If it be claimed that this misjudging by the workman, either of his powers of resistance or as to possible consequences of becoming excessively fatigued and having his powers of resistance reduced alone constitutes an accident, then I entirely agree with the Kansas court that the question should be answered in the negative.
In the case of Lanphier v. Air Preheater Corporation, decided in 1938, the New York Court of Appeals, in a per curiam opinion, reported in 278 N.Y. 403, 16 N.E.2d 382, said: "Pneumonia is a disease for which, under the Workmen's Compensation Law * * *, compensation may be awarded only when it is the result of an accidental injury. The inception of the disease must be assignable to something `catastrophic or extraordinary.' A chill resulting from exposure to conditions which are normal in the conduct of the business in which the workman is employed, though followed by pneumonia, is not an accidental injury. Matter of Lerner v. Rump Bros., 241 N.Y. 153, 149 N.E. 334, 41 A.L.R. 1122."
The court went on to say: "The deceased knew that while working in a closed preheater the heat was great. He had previously told his wife that the temperature at the plant where he was working was at times between 130° and 150° . The heat on the day when the deceased suffered the chill was perhaps a little greater than usual, but there is nothing in the evidence which suggests that the difference was significant. * * * He was exposed to this great heat because he accepted employment which would normally include repair jobs where the heat would be great. That circumstance distinguishes this case from the case of Matter of Hocke v. Emdee Management Corp., 245 A.D. 882,282 N.Y.S. 324, affirmed 269 N.Y. 592, 199 N.E. 687, where through an unexpected accident a superintendent of an apartment house was compelled to enter a room filled with steam from a valve which had accidentally become defective."
In the case at bar counsel for the appellant says of course Stevenson knew that he was going to breathe a lot of dust and smoke and gas, but he didn't know that he was going to catch pneumonia. Counsel entirely misses the point. The pneumonia is not the injury that we have to deal with. The pneumonia may be the supervening consequence of Stevenson's injury, if he received an injury. The injury, if any, was the exhaustion and lowered resistance which Stevenson received in the course of his employment. But was it accidental? By none of the tests was it accidental. There was nothing sudden about it. He worked all day under the same conditions. He knew that if he worked on a road job driving a heavy truck, and particularly the truck in question, that he would have to breathe a lot of dust and smoke and gas. There was nothing unusual about that and the court has so found.
I think it appropriate to close this opinion with the observation that I think the *Page 397 majority opinion does the workingmen a distinct disservice. Lord Shaw of Dunfermline, who in Clover, Clayton Co. v. Hughes, [1910] A.C. 242, vigorously warns against extending the doctrine of Fenton v. Thorley by putting "an interpretation upon interpretation" upon the statute so as to land very far away from the meaning of the statute itself. He warns against permitting compassion for the injured or the bereaved to veer the judge toward a strained interpretation of the statute. He also confirms a view I have frequently put forward in conference, that it is hardly sound policy to create a situation by interpretation in which only the most robust and fit may obtain employment, perhaps after submitting to a rigorous physical examination by the employer. He says: "Nor do I think it altogether without a bearing on the sound construction of the statute, that if a different interpretation be put upon the words cited, then a new peril will have been introduced into the lives of many workers who, notwithstanding debility and chronic disease, are most anxious and willing to devote their remaining powers to earning an independent livelihood. Should such persons be held to carry with them into and upon employment the serious additional liability alluded to, employment may become for such persons, often the most needy and deserving of the population, more difficult to obtain."
All of the foregoing considerations impel me to dissent.