dissenting: Tbe original Workmen’s Compensation Act, cb. 120, Public Laws 1929, in sec. 2 (f) thereof, defines “injury” and “personal injury.” Tbe definition provides that tbe terms “shall not include a disease in any form, except where it results naturally and unavoidably from tbe accident.”
*779Under tbis provision “injury by accident” and “disease” are not synonymous but tbe terms are used in contrast to each other. If the framers of the act had intended disease, that is, where the disease is the injury itself, to have been included it would not have been necessary to have added the last clauses in the section and they are mere surplusage.
“Injury” in its broadest sense, perhaps, would include injury by disease. But the Legislature expressly excludes this interpretation. To be compensable the disease must naturally and proximately follow injury by accident. There must be first an injury by accident from which disease develops before there can be any compensation; that is, the injury by accident must precede the disease and be its producing cause. Richardson v. Greenburg, 176 N. Y. Supp., 651; Meade Fibre Corp. v. Starnes, 247 S. W. (Tenn.), 989; Hendrickson v. Continental Fibre Co., 136 Atl. (Del.), 375; Blair v. Ice & Storage Co., 165 N. W. (Neb.), 893, 11 A. L. R., 792. The Industrial Commission adopted this view in Stewart v. Rainey Hospital. See opinions of Industrial Commission II, 125.
The express mention of a disease which is the consequence of an injury would seem to exclude all other diseases which are not. Thus if an employee suffers a traumatic injury by accident arising out of and in the course of his employment and pneumonia naturally and proximately results, the injured employee would be entitled to compensation for disablement produced by the disease as a part of the result of the injury. But the essential link between the injury and the disease must be shown, and it is not sufficient to show that it probably exists, but that it does, in fact, exist.
Following the adoption of this statute this Court in McNeeley v. Asbestos Co., 206 N. C., 568, based its conclusion upon the negligence of the employer which, as to the employee, constituted an accident. In Swink v. Asbestos Co., 210 N. C., 304, the injury not being the result of negligence, compensation was denied.
Then the Legislature, probably for the purpose of clarifying the law, and its intent, following the decisions in the McNeeley and Swink cases, supra, by ch. 123, sec. 1, Public Laws 1935, materially amended ch. 120, sec. 2 (f), 1929. It is there provided that “the word 'accident/ as used in the Workmen’s Compensation Act, shall not be construed to mean a series of events in employment, of a similar or like nature, occurring regularly, continuously or at frequent intervals in the course of such employment, over extended periods of time, whether such events may or may not be attributable to fault of the employer, and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this article.”
By this act the Legislature included within the provisions of the Workmen’s Compensation Law all occupational diseases which are ex*780pressly mentioned and designated and specifically excluded all other diseases “even though such disease is attributable to the negligence of the employer” unless such disease naturally and proximately results from an injury by accident.
The act of 1929 as thus supplemented and amended by the 1935 act now leaves the law in this state: if the disease is occupational then compensation is allowed although the disease develops from a series of events of similar or like nature, whether such series of events is attributable to negligence of the employer or not. If. the disease is not occupational compensation is denied even though caused by the negligence of the employer, unless it results naturally and unavoidably from an injury by accident.
Thus, in deciding whether a non-occupational disease is compensable, we must bear in mind that: (1) The express mention of a disease which is the consequence of the injury excludes all diseases which are not; (2) the disease must be preceded by the injury; (3) the disease cannot constitute the injury itself; (4) in the statute “disease” and “injury by accident” are placed in contrast to each other; (5) disease is never comprehended in the term “injury by accident”; and (6) the accident and the disease cannot be the same transaction, event or series of events.
Pulmonary tuberculosis with which the plaintiff is suffering is not an occupational disease mentioned in the statute.
But the majority opinion proceeds upon the theory that the pulmonary tuberculosis from which the claimant is suffering is not the result of “a series of events in employment, of a similar or like nature, occurring regularly, continuously or at frequent intervals in the course of such employment, over extended periods of time.” It takes the position that there was one occurrence only, to wit, the accidental coughing of claimant’s fellow employee directly into claimant’s mouth as a result of which “I could feel something wet come all over my face and go into my mouth” and that this produced the tuberculosis. This position is not sustained either by the evidence or by the findings of fact of the hearing Commissioner and the Full Commission.
The evidence discloses that claimant was closely associated in his employment with a fellow employee who was suffering from active tuberculosis and that during working hours he was compelled to undergo continuous exposure and that at frequent intervals, in the course of such employment over an extended period of time, his fellow employee coughed and in so doing emitted spray. Claimant testified : “I was with Tyson (the infected fellow employee) from September, 1938, to February, 1939, during the course of my work with the Employment Compensation Commission with the exception of short periods while I was transferred to some other department in the building. During February, *7811939, in tbe course of my work at tbe Commission I worked witb Tyson at tbe west end of tbe a,ddressograph bank of files, pulling plates from frames, witb tbe exception of a few days wbicb I worked in another department, that is, witb these few days in tbe first part of February — • associated witb him constantly during tbe month of February, 1939, witb tbe exception of tbe first few days of tbe month.
“During January and February, 1939, I noticed that Tyson coughed oftener than be bad been before. . . . During February, 1939, be bad fits of coughing and be coughed very often, I’d say be coughed incessantly throughout tbe day. I was in very close contact witb him during that month. We were working on a very small improvised stand wbicb was about 3 feet square, and our work necessitated us sitting across from each other or side by side and I remember him coughing right in my face, of course accidentally, but several times.”
Then tbe claimant described a particular occurrence some time in February as follows : “I remember on that particular day we were working down at tbe west bank of files pulling plates be accidentally coughed directly into my mouth wbicb happened to be open at that time. . . . We were working side by side, and it just happened my bead was turned toward him when be coughed ... we were sitting side by side and engaged in conversation and I turned to ask him a question and at tbe moment I turned to him be coughed in my face, and bis bands, be was using bis bands to pick up a drawer at that time. That' is tbe reason I remember be didn’t have his bands over bis mouth. I remember that I could feel something wet come all over my face and go into my mouth.” He then testified: “I remember other particular occasions in wbicb be coughed and I was in tbe area of the spray from tbe mouth, any number of times; I don’t remember any particular occasions, no particular dates, but I was in bis spray any number of days. I mean that I felt bis breath and bis spray go into my face.”
This testimony clearly indicates a series of events occurring over a period of time within tbe meaning of sec. 1, ch. 123, Public Laws 1935.
Tbe claimant does not undertake to say, and we may as well concede that be could not truthfully say, that be was inoculated at any particular time or as tbe result of any particular coughing.
Tbe physicians who testified in behalf of claimant did not undertake to say that claimant became infected at any particular time or as a result of any particular occurrence.
Tbe majority opinion, in its statement of facts, quotes in full tbe hypothetical question asked one of tbe expert witnesses, and apparently relies upon tbe answer thereto as evidence of inoculation as tbe result of a particular incident. An analysis of this question and tbe answer does not justify this conclusion. Tbe question was not confined to one *782incident. It included the suppositious finding that claimant worked during part of the time or upon various occasions with Frank Tyson who developed symptoms of tuberculosis in the form of coughing and other symptoms during February, 1939, and that about the middle of February, 1939, Tyson unexpectedly and involuntarily coughed directly into the face of Neill MacRae, expectorating sputum or spray into his mouth. The doctor answered: “My opinion is that MacRae contracted his tuberculosis from Frank Tyson as a result of his working in close proximity with Tyson. ... I think that MacRae’s working in close proximity to Tyson undoubtedly caused his tuberculosis.” He was then asked: “Do you think the sputum that went into his mouth and the sprays that went into his face caused it?” (Note. The sprays went into his face on numerous occasions.)
“A. You are trying to make the point that this one particular cough produced the disease in MacRae?”
“Q. Based upon those findings and remembering the facts, I am trying to clarify it.
“A. Yes, sir, I think he got his tuberculosis as a result of Tyson’s coughing into his face or near enough for him to inhale the organisms. . . . I cannot answer as to which is the most likely to produce it, the large dosage or the numerous small doses. . . . "We do not have a record of human tuberculosis authentic to draw a conclusion of that, as to whether we can attribute the development of the disease to small dosages over a period of time or the reception of a large dose at a single instance wherein sufficient time the disease developed.”
If the hypothetical question is to be construed as relating to the one incident only, then it was prejudicial in that it ignores other evidence of causation offered by plaintiff. Even so, the witness declined to confine the cause to this one incident. He said: “I think he got his tuberculosis as a result of Tyson’s coughing into his face or near enough for him to inhale the organisms.” And the plaintiff testified that Tyson coughed “right in my face . . . several times ... he coughed incessantly throughout the day during February. ... I was in very close contact with him during that month working on a stand 3 feet square.”
If the question is to be so considered the defendant, as it had a right to do, examined him as to the other evidence of causation. Va. Beach Bus Line v. Campbell, 73 F. (2d.), 97; S. v. Stewart, 156 N. C., 636, 72 S. E., 193; S. v. Holly, 155 N. C., 485, 71 S. E., 450; Godfrey v. Power Co., 190 N. C., 24, 128 S. E., 485. In his answers to the additional questions propounded by counsel for the claimant and by counsel for the defendant the witness made it very clear that he was not confining the cause of infection to any one incident.
*783I may here note that it is a matter of common knowledge that what goes into the month usually reaches the alimentary, and not the respiratory, tract. In this connection this witness testified: “It is the presence of fine droplets of moisture coming out of the lung of the coughing patient and going into the respiratory tract of the recipient and inhaled in the lung” that causes the tuberculosis. And again: “I don’t have positive proof he was infected at that time, no. I will testify that it is possible he did and in my opinion, likely he did.”
Dr. Combs, witness for the employer, being tendered to and examined by claimant, testified: “My opinion is that Mr. MacRae’s condition, chronic pulmonary tuberculosis, is attributable to his exposure to Mr. Frank Tyson while at work in view of the fact that there is no other history of contact.” This answer was given in response to a hypothetical question similar to the one propounded to Dr. Brian. This witness testified further: “I couldn’t attribute to that one case or one exposure when he had been exposed over a period of time; that may be a factor. . . . I’d say that would be an important factor but I couldn’t say that would be the proximating factor because he could have developed the tuberculosis from the other exposure he had.”
Thus it appears that each expert witness examined declined to give as an opinion that the one occurrence when Tyson coughed into the face of the claimant causing sputum to go into his mouth caused the tuberculosis. There is no evidence that such sputum as entered the mouth of the claimant was charged with tubercular germs or that he became inoculated at that time, and there is no sufficient evidence from which the existence of these facts may be assumed.
The individual Commissioner did not so find. After finding the facts in relation to the plaintiff’s exposure to Tyson and that Tyson was during the month of February suffering from an active case of pulmonary tuberculosis, he further found, “that they had to work in such close proximity to each other that when the said Frank Tyson coughed — • which he did frequently, the vapor and spray from his mouth would fly into the face of the plaintiff Neill MacRae; and that on one occasion, on or about the 15th of February, 1939, that the said Frank Tyson coughed while suffering with active pulmonary tuberculosis and that some of the sputum from his cough flew into the mouth of the plaintiff Neill MacRae.” He further found “the Commissioner finds as a fact from the evidence and the greater weight of the evidence that the reception of the sputum sprays and the sputum itself from the mouth of Tyson into the face and mouth of the plaintiff was the cause of the development of the tuberculosis in the plaintiff; and, the Commissioner further finds as a fact that the reception of said spray and sputum flying through the air under the circumstances as described in the evi*784dence in tbis case, amounted to an injury by accident.” This finding must be related to the evidence which discloses that the sprays were constantly flying through the air and into claimant’s face over a considerable period of time.
The findings and conclusion of the hearing Commissioner were approved by the Full Commission. In addition the Commission made the following finding: “In the instant case, the Commission is of the opinion that the coughing and the sputum accidently hitting the plaintiff and entering his mouth constituted an injury by accident.”
This finding is somewhat ambiguous. If related to the evidence it refers necessarily to the coughing over a period of time. If we arbitrarily confine it to one incident, the one incident intended is not made very clear. And if we assume that it refers to the one incident now relied on by plaintiff there is no finding that the claimant’s infection resulted. No doubt the coughing into the face of the plaintiff under the circumstances outlined in the evidence was repulsive and offensive and could be classified as an injury. Even so, it does not follow, and it is not found, that the inoculation then occurred. To so find would require a degree of omniscience not possessed by man for, as testified to by the expert witness, in substance, we are constantly exposed to disease-producing germs and the medical science has not yet pointed the way to determine the exact moment or occasion of infection.
Apparently the majority recognize the defect in the findings of fact and the absence of that finding which, if supported by evidence, is essential to the plaintiff’s claim. The majority opinion seeks to supply the missing link. It is there stated: “Plaintiff’s tubercular disability is directly attributable to his infection when Tyson involuntarily and unexpectedly coughed spray and sputum into plaintiff’s face and mouth.” This finding of fact is not incorporated in either the opinion of the individual Commissioner or in the opinion of the Full Commission and it is not supported by evidence. Nor are we, if I understand the rules clearly, permitted to make such a finding of fact.
It is again later stated in the opinion: “We think that plaintiff’s disease was proximately produced by infection from germs transmitted to him in droplets of spray and sputum coughed up and expectorated into his face and mouth by a negligent employee in the course of his employment by defendant; that the unusual circumstances and conditions under which said injury was produced constituted an accident arising out of his employment.” Neither this finding of fact nor this conclusion is to be found either in the opinion of the hearing Commissioner or in the opinion of the Full Commission. Nor is there any evidence sufficient to support the finding by this Court, even if we had the power to so supplement the record.
*785We may concede tjiat claimant probably contracted tuberculosis in tbe course of bis employment. Tbis is not sufficient. It must be shown tbat be did in fact become inoculated in tbe course of bis employment and by accident.
How can it be said tbat tbe transmission of bacilli from one person to another, tbe whole operation being invisible, intangible and without any situs of inception, and which takes place without tbe knowledge of tbe employee receiving tbe bacilli and unknown to tbe employee from whom tbe bacilli are contracted, assumes tbe proportion and classification of an accident? Tbe whole transaction from tbe inception to tbe time tbe disease becomes' clinically recognizable is one indivisible and connected operation. Tbe whole transaction is progressive. Tbe disease may be received in the system and never become active; it may progress to tbe point tbat lesions are formed, and it is impossible to say at what point tbe accident occurred.
Bacteria are daily received into tbe body, by contact or inhalation, without resultant disease. Tbe fact of their presence is not tbe fact of disease. Is it possible to say tbat there is a blow, a traumatism, or a violent act when microscopic organisms whose bodies are not visible, whose touch cannot be felt and whose presence cannot be known passes into tbe lungs with tbe air by which they are carried ?
Granted tbat there is an impact of bacteria whenever they enter tbe body so tbat accidental injury occurs, then every day of our lives we receive accidental injuries; and on tbe testimony in tbis case tbe claimant received such injuries practically every hour during which be was on duty throughout tbe full month of February. Richardson v. Greenburg, supra. To attempt to so classify such an occurrence is comparable to undertaking to put big threads through tbe eyes of little needles.
Further, it must appear that tbe injuries (and disease, under tbe act is not treated as an injury but as tbe result of tbe injury) arose out of the employment. Tbe term “arising out of” excludes an injury which cannot fairly be traced to tbe employment as a contributing proximate cause and which comes from a hazard to which tbe workman would have been equally exposed apart from tbe employment. Tbe causative danger must be peculiar to tbe work and not common to tbe neighborhood. It must be incidental to tbe character of tbe business and not independent of tbe relation of master and servant. Tbe event must appear to have bad its) origin in a risk connected with tbe employment and to have flowed from tbat source as a rational consequence. Harden v. Furniture Co., 199 N. C., 733; Plemmons v. White’s Service, Inc., 213 N. C., 148; Walker v. Wilkins, 212 N. C., 627.
*786Tbe “storm” of bacilli, Walker v. Wilkins, supra; tbe “bite” of tbe tubercular germ, Plemmons v. White’s Service, Inc., supra; tbe “assault” by a fellow employee, Harden v. Furniture Co., supra, were not incident to tbe employment. Tbe hazard was common to life. In no sense did tbe causative danger arise out of tbe employment.
To bold that plaintiff’s disease is compensable will convert tbe "Workmen’s Compensation Act into a species of compulsory medical insurance as against tbe infectious and contagious diseases. If tbe employer is responsible for pulmonary tuberculosis tben be would also be responsible for a case of influenza, common colds or poliomyelitis whenever tbe evidence tends to show there was an exposure to an infected fellow employee during working hours. These are risks not connected with any business and against which no employer can guard.
Tbe employer assumes only tbe risks incident to tbe business or employment. Chambers Oil Co., 199 N. C., 28; Beavers v. Power Co., 205 N. C., 34; Goodwin v. Bright, 202 N. C., 481.
It may be well to note further that if we consider tbe additional findings by the Full Commission to be supplemental of and in addition to tbe findings of tbe bearing Commissioner so as to confine “tbe injury-by accident” to tbe one incident tben there is a conflict of findings by tbe Full Commission. It adopted tbe findings and conclusions of tbe individual Commissioner and tben, on this theory, made a contrary finding.
Tbe language in tbe opinion of tbe bearing Commissioner, approved by the Full Commission, clearly indicates that tbe Commission realized that in allowing compensation it was skating on thin ice. Notice is served therein that tbe decision in this cause is not to be considered a precedent. I agree that tbe condition of claimant is unfortunate and tbe circumstances under which be apparently contracted bis disease are regrettable. However, tbe law that applies to one must apply to all. Tbe Legislature has excluded tbe disease with which tbe claimant is suffering from tbe list of diseases compensable under tbe act. In my opinion tbe judgment below should be reversed.
Stacy, C. J., and WiNbobNE, J., concur in dissent.