I dissent. While the result reached in the Court's opinion is in accord with the social philosophy underlying Workmen's Compensation Acts, and it would be difficult to assign any reason why the dependents of a workman whose death results from a disease which has a direct causal connection with the employment, should not be partially insured against the pecuniary hardship resulting therefrom to the same extent as the dependents of a workman killed by an explosion or a falling rock; nevertheless, I am of the opinion that the legislature — whose function it is to make provision for such insurance — has not so provided. Clearly as to occupational diseases it has not. Pinyon Queen M. Co. v.Ind. *Page 560 Comm., 59 Utah 402, 204 P. 323. And the reasons which argue for the inclusion within the provisions of the Act of a disease arising out of the employment, other than an "occupational" disease, are equally compelling as to the latter.
Under paragraph 5, Section 42-1-42, R.S.U. 1933, quoted in the opinion of the court, I am of the opinion that the legislature has specifically excluded the plaintiffs in this case from the benefits of the Act. Such paragraph states that "`personal injury by accident arising out of or in the course of employment' * * * shall not include a disease, except as it shall result from the injury." Note that it does not say "except as it shall result from an accident." There must be a causal connection not only between the disease and the employment, but between the disease and "the injury." If the disease be the injury, it is difficult to see how it could be also the "result" of the injury. In seeking — pursuant to the statute — the cause of the result, we find that to be the result itself. The wording of the statute clearly expresses to the writer the thought that before a disease shall be included within the meaning of the quoted paragraph, two factors must concur: (1) An injury; and (2) a disease. And the latter must be the result of the former. A disease which causes injury — and all diseases do — though it may be considered as accidental, is not alone sufficient. Tintic Milling Co. v.Industrial Commission, 60 Utah 14, 206 P. 278, 23 A.L.R. 325;Adams v. Industrial Commission, 95 Utah 507, 82 P.2d 693, are not contrary. In fact, they support the contention here advanced. In each case there was an injury and a disease.
The quoted provision of our statute is not a part of the law in those jurisdictions from which excerpts are quoted in the court's opinion. The writer concedes that "accidental bodily injury" might properly be construed to include disease — absent a legislative definition excluding it. In Hood v. Maryland Co.,206 Mass. 223, 92 N.E. 329, 30 L.R.A., N.S., 1192, 138 Am. St. Rep. 379 (cited in the opinion of the court), an insurance policy was so construed. Yet the *Page 561 decisions of the Massachusetts court, in construing its Workmen's Compensation Act, are apparently in harmony with the conclusion of the writer as to disease being excluded therefrom, except as such disease results from an injury. See Minns' Case,286 Mass. 459, 190 N.E. 843 (and cases cited therein).