I dissent. I am unable to concur with the majority opinion in spite of the fact that many previously decided cases have indicated a trend away from what I believe should be the holding in this case. I believe that acts such as this should be liberally construed within the framework of the act, but should not be extended beyond the structure that has been erected by the legislature. To do so is not liberal interpretation. It is judicial extension. I further believe that if we have crept beyond the framework of the act we should stop at the first reasonable resting place.
Section 42-1-43, U.C.A. 1943 provides as follows:
"Every employee mentioned in section 42-1-41 who is injured, and the dependents of every such employee who is killed, by accident arising out of or in the course of his employment, wheresoever such injury occurred, provided the same was not purposely self-inflicted, shall be entitled to receive, and shall be paid, such compensation for loss sustained on account of such injury or death, and such amount for medical, nurse and hospital services and medicines, and, in case of death, such amount of funeral expenses, as is herein provided."
For the purposes of this case, this section requires that the employee be injured by an accident arising out of or in the course of his employment. The only issue of any moment centers around the phrase "injured * * * by accident" as all other important matters are conceded.
Mr. Justice Wade in his opinion gives a resume of the testimony and the only portions I care to emphasize are those dealing with the facts and circumstances surrounding the claimed accident. The record bears out the fact that the *Page 26 applicant was doing his work in the customary, usual and ordinary way. There was no unusual incident, no fortuitous circumstance, no overexertion, no jarring, jerking or shaking, or external force. The injury was precipitated by ordinary movement and the medical testimony is to the effect that the slightest movement or motion by the applicant would have brought about the same result. If so little movement were to light up applicant's physical illness, then unless he had always remained immobile, the same results would have necessarily followed.
As announced by Mr. Justice Wade, the sole question is whether or not an injury brought about in such a way is made compensable by a reasonable interpretation of our statute. I believe it can be fairly stated that the courts of England and those of the United States have encountered great difficulty in interpreting the various statutes involved, and out of the many decisions an irreconcilable conflict has arisen. In many of the statutes "injury," "injured," or "personal injury" are used alone and not qualified by "accident" or "accidental." The statutes of some jurisdictions cover only personal injuries by accidents caused by violent or external means. Other jurisdictions have statutes using the same phraseology as that used by our legislature. It is only from the latter jurisdictions that helpful assistance can be obtained in interpreting our act.
This court in Dee Memorial Hospital Ass'n v. IndustrialCommission, 104 Utah 61, 138 P.2d 233, considered some of the cases dealing with the interpretation of statutes, similar to the one enacted in this state, and reached the conclusion that an employee injured by overexertion was entitled to an award of compensation. In that case the court quoted with approval the principles announced in English cases. Clour, Clayton Co. v.Hughes, A.C. 242, 3 B.W.C.C. 275, 34 Digest 273, 2316; Fenton v. Thorley Co., Ltd., A.C. 443, 34 Digest 266, 2264; andOrmond v. C.D. Holmes Co., Ltd., 2 A.U.E.R. 795. Undoubtedly these cited *Page 27 cases correctly define the word "accident" as an unexpected event but they hold the injury itself to be the event.
Many jurisdictions in this country have followed the English rule and we have already committed ourselves to follow the principle, at least insofar as strain and overexertion are concerned. This in spite of the fact that the wording in our statute commands a contrary conclusion.
In ordinary usage, the word "accident" can be used to denote an unexpected occurrence which produces an injury. It can also be used to denote an unexpected injury. The word "injury" always denotes a result and not a cause. Had our legislature used only the word "accident," then it could reasonably be contended that the legislature had intended to cover both the cause and the result. Had it used only the word "injury" without the word "accident," then it would have covered all results regardless of the cause. However, the legislature used both the words "injury" and "accident" so that it appears to me we must treat the word "accident" as dealing solely with the cause and not with the result. To do otherwise deletes one of the two words from the statute and leads to conflicting results unless every sudden death, injury or illness is considered an accident.
Perhaps the best analysis of a statute similar to Section 42-1-43, U.C.A. 1943, is contained in the case of Pierce v.Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017, 1020. In view of the similarity in wording of the two statutes and because I believe the opinion correctly interprets the wording used by our legislature, I quote at length:
"It is obvious that while `injured' always implies a result, the word `accident' may mean either a cause or a result, and which it is must be determined by the context. The preposition `by,' which is found between the word `injured' and the word `accident,' supplies the answer. Used as it is, it can only mean `by medium of, in consequence of, or through the agency of,' and the `accident' is therefore the cause of the injury. To illustrate, if A says `I had an accident; I injured my arm,' it is natural to presume that by the word `accident' he referred to the result to his arm, but if on the contrary he says `I injured my arm by accident,' the ordinary reasonable man would undoubtedly *Page 28 believe that `accident' so used referred to the cause of the injury to the arm and not to its condition.
"And yet if the cases which attempt to define `accident' are carefully read and analyzed, it is apparent that many of them have utterly overlooked the qualifying effect of the preposition and have considered the word `accident' as though it stood alone.
"The original Workmen's Compensation Law was adopted by the British Parliament in 1897. In 1903 in the case of Fenton v.Thorley, (1903) A.C. 443, the question arose as to the meaning of the word `accident' in the phrase `injury by accident'; it being contended on the one hand that it referred to the cause of the injury alone and not to the injury itself, while on the other hand it was urged that it referred to the injury as well as to the cause. The case was carried to the House of Lords, and it was finally held that the word included an unexpected injury regardless of the cause. The opinion is too long to be quoted in full, but a careful reading and analysis thereof will show that the court considered the word `accident' as though standing alone. The following quotation shows that it clearly understood that the word `accident' in some cases is used to signify the cause and in other cases the result.
"`The word "accident" is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word "accident" is also often used to denote both the cause and the effect, no attempt being made to discriminate between them. * * *'
"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 29
I believe a reference to a few of our cases will illustrate the difficulty encountered by this court because we held the injury to be the accident and attempted to differentiate on the theory that compensation was controlled by fixing the incidents leading to the injury with certainty. In Bamberger Coal Co. v.Ind. Comm., 66 Utah 203, 240 P. 1103, we held that death contributed to by overexertion was not compensable. InFredrickson v. Ind. Comm., 1926, 68 Utah 206, 249 P. 480,481, we held that even though a physical ailment was exaggerated and accelerated by overexertion, there was no accident within the meaning of the statute and compensation was denied. In Hammond v. Ind. Comm., 84 Utah 67, 34 P.2d 687, we held that death contributed to by everexertion was compensable. In ContinentalBaking Co. v. Ind. Comm., 92 Utah 438, 69 P.2d 268, we held that a hernia brought on by extra exertion was an accident within the meaning of the statute and therefore compensable. In DeeMemorial Hospital Ass'n v. Ind. Comm., supra, and inRobertson v. Ind. Comm., 109 Utah 25, 163 P.2d 331, we again held death contributed to by overexertion was compensable. InYoung v. Salt Lake City, 97 Utah 123, 90 P.2d 174, we held that an employee who died as a result of lead poisoning caused by exposure to air laden with particles of paint did not die by reason of an accident. In Andreason v. Ind. Comm., 98 Utah 551,100 P.2d 202, we held that an employee who died as the result of contracting a disease attributed to bacillous interiditis had suffered an injury by accident.
In those cases where compensation was awarded, we sustained the award on the theory that the evidence was sufficient to establish that the injury was sudden, unexpected, undesigned, and at a definite time and place. In those cases where compensation was denied, the time and place of injury were not limited to a single happening, although the injury or death was unexpected.
It may be possible by refined mental process to distinguish these cases on a different basis than the one I suggest, but *Page 30 I rather believe not. I believe that by interpretation this court has extended the coverage beyond that anticipated by the legislature and at the same time has tried to limit coverage by conditions not reasonably inferable from the act. By such a process we are now confronted with the necessity of further stretching the legislative enactment or stopping at the present phase line.
Regardless of my ideas as to the proper interpretation of our act, for some 25 odd years this court has adopted a contrary interpretation. I must, therefore, accept the fact that many judges have believed the legislature intended to use the word "accident" in a sense that it denoted sudden and unexpected injury. The law, having become fixed over a period of years, the doctrine of stare decisis influences me to stand by the decided cases. However, it does not logically follow that I need extend the law which is fixed, definite and known. From what is said in the prevailing opinion, I need not emphasize the fact that the law as now announced by the majority of this court has not been previously fixed or known.
If we limit our act to the question under discussion and accept it as interpreted by our decisions, the act would in substance now read:
"Every employee who is injured by accident or by overexertion shall be entitled to compensation."
I do not believe it should be further extended to read:
"Every employee who is injured by injury shall be entitled to compensation."
To so amend the act opens the flood gates and every internal failure becomes an accident just because it happens.
PRATT, C.J., concurs in the views expressed by LATIMER, J. *Page 31