by injury was not meant disease merely, and upon this point the courst said (138 Wis. 135, 119 N. W. 807, 20 L. R. A. (N. S.) 1175):

"The word 'injury, in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with its etymology. It meant a wrongful invasion of legal rights, and was not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar law phrases damnum absque injuria. In common parlance, however, it is used broadly enough to cover both the damnum and the injuria of the common law, and indeed is more commonly used to express the idea belonging to the former word, namely the effect on the recipient in the way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one. Hence, unless some reason to the contrary is presented, it should be so understood in these statutes. Subdivision 1, Section 4971, Stats. (1898). The respondent contends that, nevertheless, the word should be limited to the results of external violence. By itself the word 'injury' or 'injure' has no more application to the result of violence than to the result of any other injurious influence. A disease resulting from negligence of a physician in failing to give treatment is just as much an injury in common phrase as if it resulted from affirmative maltreatment of external violence.'

"The following cases, in none of which was the element of violence present, are along the same line: Alloa Coal Co. v. Drylie, 6 B W. C. C. 398 (death by pneumonia); Hood v. Maryland etc., Co. 206 Mass. 223, 92 N. E. 329, 30 L. R. A. (N. S.) 1192, 138 Am. St. Rep. 379 (contracting of glanders); Dove v. Alpena, etc., Co., 198 Mich. 132, 164 N. W. 253 (death by anthrax); Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916 A. 273, Ann. Cas. 1918B, 293 (death by typhoid fever).

"Finally there is the decision in this state in Hartford, etc., Co. v. Industrial Accident Commission, 32 Cal. App. 481, 163 Pac. 225, where an employee engaged in handling pulverized grain, and who contracted an affection of the nose and throat from the grain, was allowed compensation. The sole point discussed in the opin

W. C.-26

ion, to be sure, is as to whether the disease was caused by the man's employment, but nevertheless it is a decision that cannot be justified unless the word 'injury' is broad enough to include the harm done by disease.

"As between these two conflicting lines of decision it is not necessary to determine where the weight of authority lies, or which cases are the better reasoned. If those which give the broader meaning to the word 'injury' do not lay down the better rule, they at least establish this, that it cannot be said that the broader meaning is an impossible or unreasonable one. The situation then, as it presents itself in connection with our constitutional provision, is at least that both by general usage and by the decisions of the courts the word 'injury' may have either of two meanings, and that either is reasonable and possible. In such a situation, where a constitutional provision may well have either of two meanings, it is a fundamental rule of constitutional construction that, if the Legislature has by statute adopted one, its action in this respect is well-nigh, if not completely, controlling.''55

§ 208. Inhalation of Noxious Gases.-Deceased was employed as a watchman in the store yard and tool house of defendants plant. On the afternoon of the day of the accident he was found dead in the office. Gas was escaping from a disconnected supply pipe leading to the gas heater. It was concluded that deceased's death occurred from gas poisoning. In reversing an award the court said: that, conceding that the business of the employer was of a hazarduous nature, and one within the New York Workman's Compensation Act, still the deceased was employed as a watchmen at the tool house and material storage plant where none of defendant's business was carried on, and was not in any way subject to the hazards of the business, and was not an employee

Cal.,

(1920),

55. City & County of San Francisco v. Indus. Comm. 191 Pac 26, 6 W. C. L. J. 428; In re Victor Frey, 3rd A. R. U. S. C. C. 125; In re Enice Miller, 3rd A R. U. S. C. C. 149; In re Patrick E. Burk, 3rd. A. R. U. S. C. C. 140.

in a hazardous employment, within the contemplation of the Workmen's Compensation Act.5"

Where a laborer was ordered to do some painting, and, in following instructions, heated the paint in an enclosed room and became poisoned from the gases, given off in the process of heating, which caused his death, the court held that this was not an occupational disease, for that term must be restricted to a disease that is not only incident to an occupation, but the natural, usual, and ordinary result thereof; and held not to include one occasioned by accident or misadventure while heating the paint in a small, unventilated room, where the deadly fumes pervaded the atmosphere the employee was compelled to breathe.57

Deceased was employed as a fireman at furnaces in a smelter for fifteen years, about six days before his death he became ill, and the medical testimony was to the effect that death was due to arsenical poisoning. The industrial board concluded that death was due to acute arsenical poisoning not of a chronic nature. The circuit court affirmed this award on the ground that death was due to an accident and not to an occupational disease.58

Where a carpenter died as a result of the inhalation of poisonous fumes of chemicals while doing odd jobs about his employer's plant, compensation was denied because claimant failed to prove that death resulted from an injury arising out of the employment.5 59

Where a miner entered a portion of a mine, against orders and despite danger marks, for the purpose of obtaining a machine

56. Kehoe v. Consolidated Telegraph and Electrical Subway Co., 176 N. Y. App. Div. 84, 162 N. Y. Supp. 481, 16 N. C. C. A. 640; John A, Roebling's Sons Co. v. Ind. A. C. of Cal., 36 App. Div. 10, 171 Pac. 987, 16 N. C. C. A. 891.

57. Ind. Com. of Ohio v. Roth et al., 98 Ohio St. 34 120 N. E. 172, 17 N. C. C. A. 342, 2 W. C. L. J. 829; Holnagle v. Lansing Fuel & Gas Co. Mich. 166 N. W. 843, 1 W, C. L. J. 1010.

58. Mattheissen and Hegeler Zinc Co. v. Ind. Board of Ill., 284 Ill. 378, 120 N. E. 249, 17 N. C. C. A. 788, 2 W. C. L. J. 876; Bishop v. City of Chicago, 1 Ill. Ind. Bd. 96, 10 N. C. C. A. 274.

59. In Re Murphy, 230 Mass. 99, 119 N. E. 657, 17 N. C. C. A. 249; Bennett v. Barnardino Laundry Co., 3 Cal. I. A. C. 229; In re Wm. C. Schaeffer, 3rd A. R. U. S. C. C. 124.

previously left there, and met death from inhaling noxious gases, the court held that deceased's death was due to an accident arising out of his employment, and his disobedience in this case was mere negligence and not sufficient to bar compensation.60

An electrician, while engaged in stringing wires in an ash cellar under defendant's boiler room, became ill from coal gas, and died three months later of pulmonary tuberculosis. Upon evidence tending to establish that the coal gas was the primary cause of the death, compensation was awarded.61

An employee, working about furnaces for producing gas, was required, in the performance of his duties, to look into holes in the cover of the furnace about seventy times per day, and the inhalation of gases which escaped from these holes caused an acute attack of optic neuritis, resulting in his becoming totally blind. It was held that his blindness was a personal injury, and compensable under the Massachusetts Workmen's Compensation Act.62

Where a stevedore, in attempting to rescue an unconscious man from the hold of a ship, was overcome by inhaling carbonic acid gas and died, the court held that the deceased's death was due to an accident arising out of his employment.63

Compensation was awarded for the death of a miner, whose death resulted from the inhalation of poisonous gases while working in the mines.64

Death from lombar pneumonia, following inhalation of smoke, and a wetting received by a member of a fire brigade while fighting fire to protect his employer's property, was caused by an injury arising out of the employment.65

60.

A. 943.

Gurski v. Susquehanna Coal Co., 262 Pa. 1, 104 Atl. 801, 17 N. C. C.

61. Odell v. Adirondack Elec. Power Co., 223 N. Y. 686, 119 N. E. 1063, 17 N. C. C. A. 877.

62. In Re Hurle, 104 N. E. 336, 217 Mass. 223, 4 N. C. C. A. 527, L. R. A. 1916A. 279, Ann. C. 1915C, 919.

63. London & E. Shipping Co. v. Brown, 10 N. C. C. A. 483, 7 F. 488, 42 S. C. L. R. 357.

64. Giacobbia v. Kerns Donnewald Coal Co., Bull, No. 1, Ill. Pg. 196. 65. In re McPhee, 222 Mass. 1, 109 N. E. 633; Kelley v. Auchenlea Coal Co., 48 Scotch L. R. 768, 4 B. W. C. C. 417.

Involuntary inhalation of gas has been held to be an accidental. injury within the meaning of a policy insuring an individual against accidental injury."

An employee developed a case of acute bronchitis and lead poisoning as a result of the inhalation of gas fumes from an oxyacetylene-burning machine, and it was held that the incapacity was due to an injury.67

Claimant was engaged in scaling the inner plating of a caisson. Particles of red lead being scaled became embedded in sore. spots on his face or were inhaled into the system, causing incapacity. This was held to be an injury.68

Injury to an employee from inhaling poisonous gases and fumes, which defendant had failed to remove by ventilators, fans, etc. was held to be an accidental injury by the common-law court, but recovery was denied because the decision of the commission, finding that there was no accident, was res adjudicata in a common-law action for damages.69

A plumber, in searching for a gas leak, lit a match, and an explosion followed. After the fire was extinguished he continued his search for the leak by the sense of smell, when he suddenly toppled over and died. The death was due to a combination of asphyxiation. and excitement, and was held to be an injury arising out of the employment."

Where a blacksmith inhaled gas fumes from a forge, and the sickness that followed was a gradual development covering a period of several years, it was held that this was not such an injury as entitled the workman to compensation."1

66. Paul v. Travelers Ins. Co., 112 N. Y. 472, 20 N. E. 347; Pickett v. Pac, Mut. Life Ins. Co., 144 Pa. St. 79, 22 Atl. 871; Pollock v. United States Ins. Co., 102 Pa. St. 230; United States, etc. Assoc. v. Newmans, 84 Va. 52; Sinclair v. Maritime Passengers Ins. Co., 3 Ellis and Ellis 476.

67. In Re claim of C. M. Arata, Op. Sol. Dep. (1915), 264. 68. In Re claim of Randolph A. Thayer, Op. Sol. (1915) 266.

69. Naud v. King Sewing Mach. Co., 95 Misc. Rep. 676, 159 N. Y. Supp. 910.

70. Coady v. Igo, 1 Conn. C. D. 576, 91 Conn. 54, 98 Atl. 328.

71. Hagden v. The Comm. Co., Conn. Com'r, Third Dist., June 16, 1916. (Unreported).

See Asphyxiation, also Eye Injuries.