(dissenting). The statutes, as they were before the amendment of 1933, did not provide for an award *248in such a case as this. The trend of opinion as reflected in legislation and judicial opinion, was toward the recognition of a relationship between employer and employee under certain circumstances that amounted to a status, and it was indicated in decisions in this court that this status might be the •basis of a valid claim during intervals when the employee was not actually present at his work. This court, so far as it could with propriety, suggested needed legislation. In 1933, sec. 102.01 (2), Stats., was amended by chs. 314 and 402, Laws of 1933, and, as amended, now reads, so far as material here: “. . . ‘Injury’ is mental or physical harm to an employee caused by . . . disease. . . . ‘Time of injury,’ ‘occurrence of injury,’ ‘date of injury’ is the date of . . . the last day of work for the last employer whose employment caused-disability.”
The opinion by the court holds that before the injury complained of can be fixed at any specific point of time, the employment must have cáused disability; that is, a wage loss. The word “disability” is held in the opinion to mean the same disability as was recognized prior to the amendment, which meaning this court was obliged to accord to the word as then used in order to make the previous legislation workable and effective. See Zurich Gen. Acc. & L. Ins. Co. v. Industrial Comm. 203 Wis. 135, 233 N. W. 772; North End Foundry Co. v. Industrial Comm. 217 Wis. 363, 258 N. W. 439. Because this term “disability” had been so definitely defined, it may be regretted that the legislature did not more clearly state its purpose by redefining that term at the time of the adoption of the amendment, at least so as to have avoided occasion for misunderstanding over the purpose of the legislature to do away with wage loss as a sole test of disability.' An adherence to the meaning of the word “disability” in the compensation act. prior to the amendment leads logically to the conclusion reached by my brethren, and unless from the context it can be said that the word as now *249used, is not used with the meaning theretofore given the word, this dissenting opinion is not justified. It must be conceded that under the statutes and decisions prior to 1933, construing it, the word “disability” had a plain' and unambiguous meaning, and that this meaning still attaches, and the word is presumed to be used in that sense unless it clearly appears that it was not intended so to be used. Nolan v. Milwaukee, Lake Shore & Western R. Co. 91 Wis. 16, 64 N. W. 319; Nekoosa-Edwards P. Co. v. Minneapolis, St. P. & S. S. M. R. Co. 217 Wis. 426, 259 N. W. 618.
I believe the sound rules of construction enable us to discover the legislative intent to be that “injury” in industrial disease actions occurs when the employee is definitely affected with the disease. The statutes now say “injury” is physical harm to an employee caused by disease; that the time of the injury is to be fixed as the last day of work for the last employer whose employment caused disability. The meaning of disability is shown by the preceding words to be physical harm/and the date is fixed as the time the employment is terminated. The language of the amendment clearly indicates that the burden of this human breakdown shall be borne by the employer in whose interest the employee was engaged when he contracted the occupational disease which grew out of and was incidental to that employment. I may quote here from an opinion in which Mr. Justice Owen spoke for this court as follows:
“It is apparent that by this amendment the legislature intended the accomplishment of some purpose. That it was the legislative intent to compensate occupational disease there can be no question. If this obvious purpose comes into collision with a provision of the act the literal application of which will defeat the legislative purpose of providing compensation for occupational disease, we are confronted with "a problem of statutory construction.
“The most salient principle of statutory construction is to give effect to the obvious legislative intent. To accomplish this end is one of the gravest duties of the judiciary.” Wis*250consin Granite Co. v. Industrial Comm. 208 Wis. 270, 242 N. W. 191.
I am of the opinion that the amendment clearly discloses a purpose of using the word “disability” in a different sense than that previously used; that now injury is physical harm caused by disease. This, by the plan of the amendment, gives an added importance to the relationship in the whole scheme of sec. 102.12, Stats., which contains, among other provisions, this one:
“Absence of notice shall not bar recovery if it is found that there was no intention to mislead the employer, and that he was not misled thereby. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application filed with the commission within two years from the date of the injury or death, or from the date the employee or his dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor shall be barred.”
In the cases which have come to our attention, the complete injury has, for all fair purposes, appeared with sufficient exactness, and I believe in each instance was susceptible of proof as to cause, development, and existence.
By following this construction of the amendment, we can place the burden with sufficient accuracy and more exact justice where it actually belongs. Following this rule, it would be possible to escape the confusion arising where an employer discharges a sick man whose disease has advanced to the-point where definite,-impairment is certain-'Sho'rtly to result. Under any other ruling, an employer who discharges an employee may escape responsibility and shift an undue burden to a new employer who may chance to hire the already injured man, or in case the man is not rehired compensation would fail entirely. This construction will also avoid the consequences following a case of absolute discharge from hazardous employment and re-employment in an industry not carrying the same hazard. Hayes v. Industrial Comm. 202 Wis. 218, 231 N. W. 584.
*251I apprehend no difficulty in working out the scheme on the basis here suggested. The employer knows or ought to know of these hazards, ofttimes being better advised, at least as to the possibilities of industrial diseases, than the employee.
The protective practices now inaugurated by employers not only show their desire to protect their employees, but also show their recognition of the slow and insidious impairment of health possibly attendant upon certain occupations. Masks, air suction, powerful ventilating devices are visible evidences of industrial sense of responsibility. Some employers arrange their work so as to limit the time exposure of men to operations that carry the menace of industrial disease. To accept any construction which furnishes a bridge over which the liability created by a careless or indifferent employer may pass to one who has the same hazard in his business, but has reduced it to a minimum, does not seem to recognize the real intention of the legislature as expressed in the amendment.
For the reasons here suggested, the finding of the commission that Czerwinski was physically disabled to the extent of forty or fifty per cent when he left the employment of appellant, and the finding that because of the injury caused by the disease respondent was unable to perform his usual and customary work in the ordinary way, fixes the liability upon appellant. 'If this reasoning is-sound, the judgment should be affirmed.
The following memorandum was filed February 4, 1936: