Vennen v. New Dells Lumber Co.

154 N.W. 640, 161 Wis. 370, 1915 Wisc. LEXIS 218

Opinions

Siebecker, J.

Tbis appeal presents an important question as to tbe liability and nonliability of employers under tbe provisions of tbe Workmen’s Compensation Act. Tbe ruling upon tbe demurrer to tbe answer assumes tbat tbe facts stated in tbe pleading exist as alleged, regardless of evidence in respect thereto. Sub. (3), sec. 2394 — 3, Stats., provides tbat where tbe right to compensation under the provisions of tbe Workmen’s Compensation Act exists for personal injury or death, it shall be tbe exclusive remedy against tbe employer for sucb injury or death. Milwaukee v. Althoff, 156 Wis. 68, 145 N. W. 238; Smale v. Wrought Washer M. Co. 160 Wis. 331, 151 N. W. 803.

By sec. 2394 — 3 it is enacted:

“Liability for tbe compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employer for any personal injury accidentally sustained by bis employee, and for his death, in those cases where tbe following conditions of compensation concur: . . .

“(2) Where . . . tbe employee is performing service growing out of and incidental to bis employment. . . .

“(3) Where the injury is proximatoly caused by accident,, and is not intentionally self-inflicted.”

The facts alleged show that the parties to the action were-subject to the Compensation Act. The inquiry then is, Was. Vennen’s death proximately caused by accident while he was. “performing service growing out of and incidental to his employment” ? The inference from the alleged facts is reasonably clear that Vennen at the time of the 'alleged injury resulting in his death was “performing service growing out of' and incidental to his employment.” The contention that an. injury resulting from carelessness or negligence is not one-that can be said to have been accidentally sustained in the-sense of the Compensation Act is not well founded. As declared in Northwestern Iron Co. v. Industrial Comm. 154 Wis. 97, 142 N. W. 271. "In giving construction to such statutes words ate to taken and construed in the sense in which they are understood in common language, taking into> consideration ¿¡je text and subject matter relative to which they are enjoyed.” The words should be given, as intended, by the,'lawmakers, their popular meaning. Sadowski v. Thomas F. Co. 157 Wis. 443, 146 N. W. 770. “A very lar#e proportion of those events which are universally called ^.ficidents, happen through some carelessness of the party injured, which contributes to produce them. ... Yet such injuries, having been unexpected and not caused intentionally or by design, are always called accidents, and properly so.”' Accidents without negligence are rare as compared to accidents resulting from negligence. Opinion of Paine, J., in Schneider v. Provident L. Ins. Co. 24 Wis. 28. The intention of the legislature to include accidental injuries resulting-from negligence within the language of the Compensation Act is so manifest that there is no room to indulge in construction of the language employed. In the popular sense-the words as used in the Compensation Act, referring to a. personal injury accidentally sustained by an employee while performing services growing out of and incidental to bis employment, include all accidental injuries, whether happening through negligence or otherwise except those intentionally self-inflicted.

The inquiry is, Was the disease from which it is alleged Yennen died proximately caused by accident? Do the facts and circumstances alleged in the case set forth the conditions to entitle an employee to compensation “for any personal injury accidentally sustained” which was “proximately caused by accident” while “performing service growing out of and incidental to his employment” ? We have already noticed that the alleged injury was, under the facts stated in the pleadings, received4>y.deceased while in plaintiff’s employ and while he was “performisg-gervice growing out of and incidental to his employment.” WÜiürclier or not the alleged accidental injury caused Vennen’s death ^.sufficiently pleaded and remains a question for determination'fen the evidence at the inquest of the case. There remains the^portant inquiry, Do the allegations state a case showing thaNYennen’s death is attributable to “accident” in the sense of tÉ^ Compensation Act ? , It is urged that the contracting of typhoid disease, under the facts and circumstances stated, does not sB$w that his death was due to an accidental occurrence. The terni “accidental,” as used in compensation laws, denotes something unusual, unexpected, and undesigned. The nature of it implies that there was an external act or occurrence which caused the personal injury or' death of the employee. It contemplates an event not within one’s foresight and expectation, resulting in a mishap causing inj ury to the employee. Such an occurrence may be due to purely accidental causes or it may be due to oversight and negligence. The fact that deceased became afflicted with typhoid fever while in defendant’s service would not, in the sense of the statute, constitute a charge that he sustained an accidental injury, but the allegations go further and state that this typhoid affliction is attributable to the undesigned and unexpected occurrence of the presence of bacteria in the drinking water furnished him by the defendant as an incident to his employment. These facts and circumstances clearly charge that Vennen’s sickness was the result of an unintended and unexpected mishap incident to his employment. These allegations fulfil the requirements of the statute that the drinking of the polluted water by the deceased was an accidental occurrence while he was “performing service growing out of and incidental to his employment.” It is alleged that the consequences of this alleged acN cident resulted in afflicting Vennen with typhoid disease, which caused his death. Diseases caused by accident to employees while “performing service growing out of and incidental to his employment” are injuries within the contemplation of the Workmen’s Compensation Act. This was recognized in the case of Heileman B. Co. v. Industrial Comm., ante, p. 46, 152 N. W. 446, and Voelz v. Industrial Comm., ante, p. 240, 152 N. W. 830. The English Compensation Act made employers liable to employees for “personal injury by accident arising out of and in the course of the employment.” Under this act it has been held that contraction of a disease may be caused by accident. See the following cases: Brintons v. Turvey, [1905] A. C. 230. A workman became infected through a bacillus from the wool which he was assorting, resulting in giving him the disease of anthrax of which he died, and it was held that it was a case of “injury by accident.” Alloa C. Co. v. Drylie, [1913] 1 Scots L. T. 167, 4 N. & C. C. A. 899. Drylie, a workman in a coal pit, through accident was exposed to icy cold water up to his knees and became chilled which made him sick, resulting in pneumonia of which he died. Upon the evidence adduced the court found that the pneumonia was caused by the chill and that death resulted from “injury by accident.” The cases wherein liability has been found distinguish between disease resulting from accidental injury and disease wbicb results from an idiopathic condition of the system and not attributable to some accidental agency growing out of the employment. The latter class of diseases are held not to be within the contemplation of the act.

We are of the opinion that the decision of the trial court holding that the facts pleaded show that Vennen’s death was caused by accident while performing service growing out of and incidental to his employment is correct and that the demurrer was properly overruled.

By the Court. — The order appealed from is affirmed.