#### Vennen, Administratrix, Appellant, vs. New Dells Lumber Company, Respondent.

*September 16*

October *26, 1915.*

*Workmen's compensation: Statute construed: “Accident:" “Personal' injury:” Typhoid, fever.*

1. An employee wbo, as the result of drinking polluted water furnished by the employer at its factory, became sick with typhoid fever, was at the time of such injury “performing service growing out of and incidental to his employment,” within the meaning of sec. 2394 — 3, Stats.

2. A personal injury “accidentally sustained” or “proximately caused by accident,” within the meaning of sec. 2394 — 3, Stats., may be one which resulted from carelessness or negligence. The words should be given, as intended by the legislature, their popular-meaning.

*3713. Typhoid fever contracted by an employee as the result of drinking polluted water furnished by the employer is a “personal injury accidentally sustained” and “proximately caused by accident,” within the meaning of sec. 2394 — 3, Stats.

Barnes, X, dissents.

Appeal from an order of the circuit court for Eau Claire county: E. 0. Higbee, Judge.

*Affirmed.*

This is an action to recover damages alleged to have been sustained by the plaintiff as administratrix of her husband’s estate and as his widow on account of her husband’s death.

The defendant is a corporation organized under the laws of the state of Wisconsin. The deceased, Gerhard Yennen, was employed by the defendant during the spring and early summer of the year 1914. The defendant was engaged in operating a manufacturing lumber establishment located on the Chippewa river in the city of Eau Claire, Wisconsin. In connection with its establishment the defendant maintained an outhouse and two toilets for its employees working there and a toilet in its principal office building. All of the 'sewage from these toilets was discharged into the river near defendant’s establishment. The pleadings allege that the defendant in supplying water for its boilers not only secured water from the city waterworks, but also used water from the river, which was obtained by means of intake pipes; that the defendant wás negligent in placing its intake pipes in such location that they carried into the boilers water that was contaminated by the sewage, and that this water through defendant’s negligence became mixed with the water from the city waterworks because of improper connecting pipes. It is further alleged that the defendant negligently permitted and caused the employees to drink of this polluted water and thereby caused the deceased, Gerhard Yennen, to become sick with typhoid'fever, which resulted in his death on July 25, 1914.

The defendant alleges and claims that the court had no jurisdiction of the matter because the defendant at the time *372here in question bad more than four employees engaged in a common employment and tbat it bad filed notice of election to accept tbe pro-visions of tbe Workmen’s Compensation Act,, and tbat tbe plaintiff’s intestate bad never filed any election not to accept tbe provisions thereof.

, Plaintiff demurred to tbis defense on tbe ground tbat it did not state facts sufficient to constitute a defense. Tbe circuit court ordered tbat tbe demurrer be overruled. From sucb order tbis appeal is taken.

For tbe appellant there was a brief signed by *Fred*Arnold, attorney, and *Daniel H.*Grady, of counsel, and oral argument by *Mr. Grady.*

For tbe respondent there was a brief by *Sturdevant & Farr,*and oral argument by *L. M. Sturdevant.*

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. . . .

> *373“(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. *374personal 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 *375further 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 *376disease 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.

Barnes, J.

(dissenting). By sec. 2394 — 3 liability exists under the Compensation Act, where employer and employee are under it, (1) for “any *personal injury*accidentally sustained” by the employee while “performing service growing out of and incidental to his employment, . . . where the injury is proximately caused by accident, and is not intentionally self-inflicted,” and (2) for death where the employee is performing such service and where the injury causing death is “proximately caused by accident” and not intentionally self-inflicted.

To justify recovery under this statute, where death does not ensue, there must be a *personal injury actually*sustained, which injury is proximately caused by accident. Where recovery is sought for death, the statute does not in express terms say that a personal injury must actually be sustained, but only that there must be an injury “caused by accident.”

I think it is very improbable that the legislature intended to give compensation where death resulted from an accident and deny it in case of mere disability, and that by fair implication it was intended to allow compensation for death only where it resulted from “personal injury.” In other words, if recovery can be had in case of death from typhoid fever, then indemnity should be allowed for disability and *377medical attendance in case of recovery. If tbis be so, tben two things must occur as a condition precedent to recovery: there must be a personal injury and it must be caused by accident. If the taking of typhoid germs into the system is a “personal injury” and an “accident” within the meaning of the law, then the decision is right. If there can be a recovery in the case of typhoid fever, then the same result would follow for tuberculosis, pneumonia, smallpox, anthrax, ordinary colds, and other diseases, where the sick employee was able to trace the cause of his sickness to some unusual conditions in the surroundings in which he worked. If I understand the opinion correctly, most if not all diseases may be accidental, and^recovery may be had on account of the same, except those of an “idiopathic” character. Idiopathy is defined as “a morbid state or condition not preceded and occasioned by any other disease; an individual or personal state of feeling; a mental condition peculiar to one’s self.” Idiopathic is de-nned as “of or pertaining to a morbid state; not secondary or arising from any other disease; as an idiopathic affection.” Cent. Diet.

The peculiar concern of this court is to get at the legislative intent. When the court ascertains that intent, it has not only performed its full duty but has exhausted its legitimate powers. It has no right to curtail or extend the provisions of any statute.

The Compensation Act as now construed by the court will, I think, add materially to the liabilities popularly supposed to exist under the act, if it does not double them. If the legislature so intended, well and good. I cannot bring myself to believe that it did so intend.

It is a matter of common knowledge that cases of sickness and disease are much more numerous than cases of what are commonly known as accidents. The Compensation Act was passed after an exhaustive study of the subject of industrial insurance by a committee of the legislature which covered a *378period of two years. There were two classes of acts in operation in other jurisdictions, one covering diseases and accident, the other, not in terms at least covering disease. If it had been the purpose of the legislature to include the large class of cases that would result from sickness, it is fair to presume that it would have done so in express and unmistakable terms, and not by the use of language that is at least popularly understood not to include them. In the numerous discussions on the proposed law before the legislature, which are fresh in mind, it does not appear to have occurred to any one that diseases were included or intended to be included. In the four years that have elapsed since the original act was passed thousands of cases of sickness other than those of an “idiopathic” character must have arisen where there was ground for claiming that the sickness was contracted in the course of employment, and yet this is the first case where the claim was made that the Compensation Act applies to sickness. Even the representative of the deceased is not making such a claim here. On the contrary she is resisting it and insisting that she is free to pursue her common-law remedy.

Now the words “personal injury” are words commonly and ordinarily used to designate injury caused by external violence, and they are not used to indicate disease. Neither do we speak of sickness as an “accident” or an “injury.” When we hear that someone has suffered an accident we at once conclude that he has suffered some more or less violent external bodily injury. It is in this sense, I think, that the words “personal injury” and “injury . . . caused by accident” are used in the statute. When our neighbor has typhoid fever, we do not think of classifying his ailment as an “accident,” an “injury,” or a “personal injury.” It is only by an extremely far fetched and I believe illogical construction of the words referred to that they can be held to include disease not resulting from some external violence.

It is well nigh a demonstrable certainty that the legislature *379never intended to provide compensation for sickness not resulting from external bodily violence. Wisconsin was one of the pioneers in this kind of legislation. It was known that it would entail large burdens on our manufacturers, wbo would thus be placed at a disadvantage in competing with employers in other states where no such law was then in existence. The law was an optional one and is so yet. As was expected, there was a great deal of hesitancy on the part of employers about coming under it. Had it been supposed that it provided compensation for disease or sickness, it is probable that the purpose of the law would have been practically nullified. The effect of the decision in this case is of course conjectural, but it is not without the range of possibilities that some at least of those who are now under the act will exercise their election not to remain under it. It is now a generally accepted truism that many diseases attack those who are physically weak and run down rather than those who are strong and able to throw off unwelcome disease germs. The weak must work as well as the strong or else be taken care of by the public, and should they be discriminated against in the matter of securing employment much harm would follow. The question whether we should or should not have insurance against sickness is one of legislative policy. The manner of paying such insurance, if decided upon, is also a question of legislative policy within constitutional limits. I do not question the power of the legislature to pass an option law such as we have providing for indemnity against disease. What I do say is, that the legislature has not done so, and that the act passed has been stretched by construction so as to add to it, in all probability, as large a class of claims and liabilities as that actually included in the original act.

The great weight of authority is contrary to the decision in this case. In *Fenton v. Thorley & Co.*[1903] A. C. 443, it is said that the words “by accident” are used to qualify the word “injury,” confining it to certain classes of injuries *380and excluding other classes, as, for instance, injuries by disease or injuries self inflicted by design. In *Broderick v. London County*Council, [1908] 2 K. B. 807, 15 Am. & Eng. Ann. Cas. 885, the inhalation of sewer gas by which an employee contracted enteritis was held not to be a personal injury by accident. Paralysis resulting from exposure to contact with lead was held not to be an injury caused by accident. *Steel v. Cammell, L. & Co.*[1905] 2 K. B. 232, 2 Am. & Eng. Ann. Cas. 142. An abscess in the hand produced by continuous rubbing of a pick handle held not to be an injury produced by accident. *Marshall v. East Holywell C. Co.*93 L. T. Rep. 360. Working with a blistered finger among red lead and oil which produced an inflammation and swelling not an injury produced by accident. *Walker v. Lilleshall C. Co.*[1900] 1 Q. B. 488. Copper poisoning resulting from contact with dust produced by filing is not an injury produced by accident. *Hichens v. Magnus M. Co.*35 N. J. Law J. 327. Death from anthrax from handling animals that died from this disease held not injury caused by accident. *Sherwood v. Johnson,*5 Butterworth’s Workm. C. C. 686.

The Michigan court has held that since an accident is an "unforeseen event occurring without design, the Compensation Act of that state (which is similar to ours on the point under discussion) does not cover occupational diseases, which are diseases arising from causes incident to certain employments. *Adams v. Acme W. L. & C.*Works, 182 Mich. 157, 148 N. W. 485.

Kindred cases dealing with' the subject under consideration have arisen under policies of accident insurance. They hold that disease not resulting from or produced by external violence is not an accident for which recovery can be had under such contracts. *Bacon v. U. S. Mut. Acc.*Asso. 123 N. Y. 304, 25 N. E. 399; *Smith v. Travelers Ins. Co.*219 Mass. 147, 106 N. E. 607; *Sinclair v. Maritime P. A. Co.**381107 Eng. C. L. 478; *Dozier v. Fidelity & C. Co.*46 Fed. 446.

By sec. 2394 — 11, Stats., it is provided that no claim to recover compensation tinder secs. 2394 — 3 to 2394 — 31, inclusive, shall be maintained unless, within thirty days after the occurrence of the accident which is claimed to have uaused the injury or death, notice in writing he given to the employer stating the time and place of the injury. This must mean that the legislature had in mind something definite and tangible, something that could be located as to time .and place, where it used the word “accident.” I do not see how this statute can be complied with in a typhoid fever case.

The IsTew Jersey court, following what it conceives to he the English rule, holds that “where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident within the meaning of the compensation act.” *Liondale B., D. & P. Works v. Riker,*85 N. J. Law, 426, 89 Atl. 929.

The latest expression of the English courts on the subject to which attention has been called is *Eke v. Hart-Dyke,*[1910] 2 K. B. 677. There a laborer died from ptomaine poisoning caused by the inhalation of sewer gas. It was held that this was not an injury caused by accident, one of the concurring judges saying that there could be no recovery for injury by accident where you cannot give a date, and adding: “It is hardly a lawyer’s question.”

The *Brintons Case (Brintons v. Turvey,*[1905] A. C. 230) cited in the majority opinion is discussed in *Eke v. Hart-Dyke,*where it is referred to as an extreme case, the logic of which could be approved only on the theory that the anthrax germ which was floating in the air and which lodged in the eye of the deceased produced an abrasion which developed infection. In the decision the case is compared with a .spark flying from an anvil and injuring the eyesight.

The Scotch case cited in the opinion *(Alloa C. Co. v. Dry**382*lie,*[1913] 1 Scots L. T. 167, 4 N. & C. C. A. 899) is authority for affirming the decision in the present case, but is much more restricted in its application than is the present decision. The opinion of Lord DuNdas, which was concurred in by a majority of the judges, states:

> “The present case could never be fairly cited in the future as indicating that the court is willing to hold that a mere-ordinary disease *(e. g.*pneumonia) entitles a workman to compensation. The court must be satisfied . . .' that the-disease was attributable to some particular event or occurrence of an unusual and unexpected character incident to the employment, which could, in the light of the decisions, be fairly described as an accident.”

I think this is the only decided case to which attention has been called which tends to support the decision of the court, while the cases to the contrary are numerous. In the two Wisconsin cases cited the disease for which recovery was-allowed was proximately caused by an injury resulting from external violence.