The claimant was an office clerk, counterman and packer in the wholesale meat market of the employer for thirteen years. His duties required him to go into a refrigerator from ten to twenty times a day. He noticed something wrong with his health for the first in the spring of 1936, when he learned that he had a " spot ” on his lung. He began to cough blood in June of that year, and stopped work on July fourth following. He was then infected with tuberculosis. No other fact was proved to indicate the origin of claimant’s disease.
In attending physician’s reports Dr. Shure stated his opinion to be that claimant’s work " caused activity of a Koch infection ” (tuberculosis); that he had known the claimant for ten years, and never before found evidence of that disease. It was his opinion, that entering a refrigerator several times a day resulted in claimant’s condition, and that the " accident as above described ” was a competent and producing cause " of the injury sustained.” He did not give the opinion that claimant’s work was the cause of his disease.
An award having been denied by the referee, claimant made an application in extenso to the State Industrial Board for a review, upon all of the evidence in the case, and this was denied. In that connection the Chairman of the Board wrote: "We have examined the record and we believe that the evidence adduced fails to indicate that the claimant’s condition is the result of an occupational disease within the meaning of the Workmen’s Compensation Law. Tuberculosis to be covered as an occupational disease must be peculiar and characteristic to the employment.”
Upon the evidence submitted on the merits the industrial board made the following finding: “3. The evidence and medical testimony adduced at the hearings establish that the disease from which the said John Bishop is suffering is not the result of an accidental injury or any of the occupational diseases within the meaning of the Workmen’s Compensation Law.”
Claimant now contends, upon the showing made, that the tuberculosis from which he suffered was, as a matter of law, an occupational disease within the meaning of the Workmen’s Compensation Law. There is no contention that an accident happened.
*499Section 3 of the Workmen’s Compensation Law has to do with compensation, and the cases in which it shall be payable. Subdivision I of that section is entitled “ Hazardous employments,” and contains the list of such employments; and subdivision 2 is entitled “ Occupational diseases,” and catalogues those occupational diseases which are compensable. Subdivision 7 of section 2 provides that injury and personal injury mean “ only accidental injuries * * * and such disease or infection as may naturally and unavoidably result therefrom.” Thus all of the benefits of the Workmen’s Compensation Law have for their bases one or the other of two facts, viz., an accidental injury, or an occupational disease. These are not only wholly different grounds for claim, but are entirely separate in origin. The first section mentioned reads:
“ § 3. * * * 1. Hazardous employments. Compensation shall be payable for injuries or death incurred by employees in the following employments: [Then follows the list of twenty groups of employment.] 2. Occupational diseases. Compensation shall be payable for disabilities * * * resulting from the following occupational diseases: * * *.
“ Description of Diseases Description of Process
“ 28. Any and all occupational diseases.
28. Any and all employments enumerated in subdivision one of section three of this chapter.”
" Any and all occupational diseases,” of course, do not include all diseases; and the statute provides that the only employments from which compensative occupational diseases may arise are those mentioned in subdivision 1 of section 3. Group 14 of subdivision 1 includes work in meat markets. The claimant here not only makes no claim that he suffered an accident, but, on the contrary, his testimony excludes the idea of an accident. And accordingly, if he is to recover in this proceeding it must be upon the theory that he has suffered an occupational disease in his employment in the meat market; not. only that he contracted tuberculosis there, but that the disease so contracted is occupational in character. That part of the statute under which the claim is made does not comprehend accidents.
Authority has defined an infectious disease as one caused by parasites, such as bacteria, which may be contagious or not, and has defined tuberculosis as an infectious disease caused by Mycobacterium tuberculosis. Tuberculosis is an infection that may be disseminated throughout the body, in many forms, affecting *500many tissues, bones and joints, including the skin, and the brain, and affecting also birds, chickens, ducks, and similar animals, and cattle. These and other types of the infection are sufficiently known and common to have their own respective scientific names. (American Illustrated Medical Dict. [16th ed. 1932].) Webster defines an infectious disease as one caused by the entrance, growth and multiplication of bacteria in the body; and he defines an occupational disease as one brought on by, and arising from the occupation of the patient.
That tuberculosis is a germ disease that attacks the human body in almost all of its organs and parts is not only generally accepted scientifically, but has become a part of our stock of general knowledge, known to all reasonably informed persons. A generation ago it was the subject of a State-wide campaign against the scourge, as it was called, with the slogan “No uncared-for tuberculosis in 1915,” and it was the subject of almost every form of advertising. And that campaign so far succeeded that there is now scarcely a hamlet or farm in the State where a case exists, or is suspected, which is not subject to visitation by a tuberculosis nurse.
A large part of article 16 of the Public Health Law is devoted to protection against, and the treatment of tuberculosis (§§ 319-332). The statute (§ 320, repealed by Laws of 1936, chap. 237) declares it to be an “ infectious and communicable disease, dangerous to the public health.” And as early as 1903 the State provided for the erection of hospitals for its isolation and care (§ 319), for disinfection of and prohibition against occupancy of premises after tuberculosis patients were removed, the restraint of careless patients, the protection of the family by doctors and health officers, mandatory report of cases, and penalties for failures in these particulars (§§" 320-332). In 1917 the State compelled every county to build a tuberculosis hospital, or contract with an adjoining county to care for county patients (County Law, § 45). In none of these intense and widespread endeavors, nor in the provisions of any of these laws, was the meat market, meat handlers, or other employees thereof the object of special attention; nor was any of these suggested as a special source or cause of the disease.
It well may be that the claimant contracted tuberculosis in the meat market, as a matter of accident. This might have happened if he drank, or absorbed through a wound, some infected liquid; if he had eaten a piece of bologna that was infected, if he had shaken hands with, or come into contact with the sputum of, a tubercular customer. If any such or similar thing happened, and he became infected, he would have contracted tuberculosis arising out of and in the course of his employment, but it would *501be an accident. The infection would not be, for those reasons, an occupational disease, but an accidental injury. As said by one of my brethren of this bench, the greatest hazard in a saw miH is the danger of being cut by the buzz saw; so also, one may fall downstairs in such a place. But these do not result in occupational diseases, they are accidents. The employee here is not claiming an accident.
No doubt a case of tuberculosis sometimes occurs in a meat market, or other hazardous employment; but that does not classify it as an occupational disease. It would not be so if a thousand cases occurred there; because a thousand other cases may occur also in each of a thousand other employments, or in no employment. Doubtless as many cases have occurred among housewives as among those of any other pursuit. But if the cause of the infection is not traceable to the work in question, so that it could be said that the nature of the work, in sese, usually produces the poisonous germ or usually transmits it, it is not an occupational disease. The mere infection of a person engaged in a meat market does not render his disease occupational, any more than blood poisoning from stepping on a rusty nail, broken arms from falling off roofs, ladders, or scaffolds constitute occupational diseases of carpentry. But they often happen.
The theory and argument have been presented that we all have germs in us, and that some of us have more than others, and are therefore more susceptible to disease; and that a frequent change of temperature may activate excessive tubercular germs. The difficulty with that theory and its arguments is that the statute does not comprehend them. The statute deals with certain classes of work, the nature of the work, and disease arising therefrom, and not with the peculiar susceptibilities of workmen. If the fact is that claimant’s infection was contracted elsewhere, and was activated by the peculiarities of his work, then the disease came from another source and was not occupational, but accidental. Accidents overtake one man where another would escape. Neither case would change the nature of the employment.
Under the statutes of Connecticut (Gen. Stat. 1930, § 5223) an occupational disease is one “ peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such; ” and the Rhode Island statute (Public Laws of 1936, chap. 2358) declares an occupational disease to be one “ which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment.” The statutes of Illinois and Wisconsin are so broad in their scope, and involve so many inclusions and exclusions, *502that they are of little service as a guide in a State where the Legislature has failed to require any special construction of the expression “ occupational disease.”
An occupational disease is the “ natural and unavoidable result of the employment.” (Lerner v. Rump Bros., 241 N. Y. 153, 155.) The courts of Ohio have limited the meaning of occupational disease to one “ contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incident to a particular employment.” (Industrial Commission v. Roth, 98 Ohio St. 34; 120 N. E. 172.) And in the State of Washington “ an occupational disease is one which is due wholly to causes and conditions which are normal and constantly present and characteristic of the particular occupation; * * *. Every worker in every plant of the same industry is alike constantly exposed to the danger of contracting a particular occupational disease.” (Seattle Can Co. v. Department of Labor & Industries, 147 Wash. 303, 309; 265 P. 739.) In Missouri an occupational disease is one “ contracted in the usual and ordinary course of events, which, from the common experience of humanity, is known to be incidental to a particular employment.” (Lobell v. Williams Bros., Inc., [Mo. App.] 50 S. W. [2d] 710, 713.) And in Iowa it is “ a disease which is the usual incident or result of the particular employment in which the workman is engaged.” (Gay v. Hocking Coal Co., 184 Iowa, 949; 169 N. W. 360.)
Under its statute, the Supreme Court of Errors of Connecticut held that tuberculosis was not an occupational disease, saying “ the disease must be a natural incident of a particular kind of employment, one which is likely to result from that employment because of its inherent nature,” as distinguished from the peculiar conditions surrounding it, such as lack of space, improper sanitation, etc. (Madeo v. Dibner & Bro., Inc., 121 Conn. 664; 186 A. 616); and so the same court held that pneumonia was not an occupational disease, because not “ peculiar to the occupation in which the employee was engaged.” (Galluzzo v. State, 111 Conn. 188; 149 A. 778.)
The claimant stresses, as supporting his claim, two cases in the State of Wisconsin, Thomson & Co. v. Industrial Commission (194 Wis. 600; 217 N. W. 327) and Wenrich v. Industrial Commission (182 Wis. 379; 196 N. W. 824). They were cases of tuberculosis, but have no application here. One of those cases arose from a continued inhalation of wheat dust and the other granite dust. In this State we would refer to grinders’ diseases now as silicosis cases. The American Illustrated Medical Dictionary defines silicosis as “ Pneumonoconiosis due to the inhalation of *503minute particles. It is attended by fibroid induration and pigmentation.” It is evident, those cases in their nature involved a direct deposit of a foreign and deleterious substance on the lungs; and in addition they were decided under a statute which compensated “ accidental injuries, all other injuries, including occupational diseases, growing out of and incidental to the employment.” It may be noted that that State has amended its statute twice since, in 1931 and 1933; so that compensation now may be awarded for “ mental or physical harm ” to an employee caused by accident or disease, thus substantially abandoning the notion of “ occupational disease.”
It has been suggested in the opinions of the prevailing justices that sections 39 and 40 of the Workmen’s Compensation Law deal generally with occupational disease. I am unable to find any such meaning in either of those sections. They do deal with the extent of compensation payable when an occupational disease, as prescribed in section 3, has been established, as herein indicated; but they do not in any degree determine when such a disease is present, nor of what an occupational disease consists, except by reference to section 3.
The only question necessary to decide here is whether the claimant contracted an occupational disease. in the meat market in which he was employed. He did contract tuberculosis in the course of his employment; but was the disease occupational? It would be difficult in this case, if not impossible, to catalogue by empiric and pragmatic definition, within the scope of the Workmen’s Compensation Law and to meet every case, all of the elements to be considered in determining what is an occupational disease. But in the common understanding of our language, from technical authority, and from the composite view of sister States, it is reasonable to say that an occupational disease generally is one contracted in the usual and ordinary course of a trade, occupation, or employment, and which is due to causes normally present in such pursuit in excess of the hazards of employment generally, and which from our common experience has been found to be peculiar to and characteristic of the nature of the work performed.
As has been suggested, tuberculosis is well known and shockingly prevalent, affecting persons of all ages and in every pursuit. It afflicts not only the human family, but the brute kingdom as well. The record in this case is wholly barren of any evidence that tuberculosis is peculiar to or characteristic of meat markets or the employees thereof, or that such employees are commonly or even frequently infected by the disease. There is no evidence that the disease inheres in the work of meat markets, or even that work *504in and out of coolers, cold storage plants, ice houses, or similar places is the source or cause of tuberculosis. Such evidence would be against common knowledge. But even if it were possible to submit credible evidence that tuberculosis was an occupational disease, naturally incident to work in a meat market, not only was there no proof of that character given, but none was offered. The claimant not only failed to prove his case, as a matter of law, but the facts presented did not justify an award in his favor.
The decision of the State Industrial Board should be affirmed, and the claim dismissed.
Crapser, J., concurs.