"Sunstroke," "heat stroke" and "frostbite" ucts, is not an injury by accident arising out of and in the course of the employment within the meaning of the New Jersey Act. Hichens v. Magnus Metal Co., Hudson Common Pleas, June 25th, 1912; 35 N. J. Law J. 327. In the last-mentioned case the court followed the construction of the English courts in relation to the British Compensation Act prior to the amendment allowing compensation for injuries due to occupational diseases, and stated: "Since the passage of this amendment to the English Act the English courts have sustained the right of recovery in cases such as here presented. The draftsmen of our Act evidently did not note the amendment to the English Act, or else the Legislature did not intend to permit the recovery of compensation in such cases. It is apparent that it is just as important to protect employés against such conditions as are here presented as to protect them against injuries arising from what are strictly termed accidents, but in the absence of a provision in the statute meeting this situation the court is unable to award a recovery. The statute should undoubtedly be amended to meet this sort of condition." 17. "Sunstroke," "heat stroke" and "frostbite." The weight of authority seems to be in favor of holding that "sunstroke" is an accidental body injury, although the question is not definitely settled in all jurisdictions in this country. On the other hand "frostbite" is generally held not to be an accidental injury, unless it is the result of undue or extraordinary exposure. On this subject also there is a conflict. Sunstroke, although classed as a disease, is not such a disease as may be contracted in the same sense as ordinary diseases may be, but is an injury of an accidental nature, and is covered by the Federal Act. Re J. J. Walsh, Op. Sol. Dep. C. & L., p. 193. The Solicitor stated that he had formerly been of the opinion that sunstroke was not an accident, but was a disease, and that he had based his deci "Sunstroke," "heat stroke" and "frostbite" sion on the cases of Sinclair v. Maritime Passengers' Assurance Co., 30 L. J. Q. B., 77; 4 L. T. 15; Dozier v. Fidelity & Casualty Co., 46 Fed. Rep. 446; Re Sheeran, 28 Op. At. Gen. 254; but that more recently he had come across some English cases under the British Workmen's Compensation Act, to wit, the cases of Ismay, Imrie & Co. v. Williamson, 99 L. T. 595; 1 B. W. C. C. 232, and Morgan v. Owners of S. S. "Zenaida", 25 T. L. R. 446; 2 B. W. C. C. 19, in which it was held that incapacity caused by sunstroke was covered by the English Compensation Act and therefore he was compelled to change his views. The case of Morgan v. Owners of S. S. Zenaida (1909), 25 T. L. R. 446; 2 B. W. C. C. 19, was decided by the Court of Appeal of England. The applicant, an ordinary seaman, while engaged in painting the vessel when she was lying at a port on the coast of Mexico was incapacitated by sunstroke. The medical evidence was to the effect that a seaman painting the outside of a ship is running a greater risk of sunstroke than when employed on deck, because he not only gets the direct rays of the sun, but he also gets the reflected rays from the ship's side. It was held, therefore, that he was entitled to compensation. A seaman employed as a trimmer on board the steamship Majestic while engaged in drawing ashes from the ship's furnace, had a "heat stroke" and died therefrom about two hours afterwards. The seaman was in a weakly state of health and of low vitality when he entered upon his duties, and consequently liable to such attack. It was held by the House of Lords, upholding the decision of the Court of Appeal in Ireland, that the "heat stroke" was a personal injury by accident. Ismay, Imrie & Co. v. Williamson (1908), 42 Ir. L. T. 213; 1 B. W. C. C. 232. In the last-mentioned case the Lord Chancellor said: "To my mind the weakness of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who has died from a heat stroke was by physical debility more likely than others so "Sunstroke," "heat stroke" and "frostbite" to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not. *** In my view this man died from an accident. What killed him was a heat stroke coming suddenly and unexpectedly upon him while at work. Such a stroke is an unusual effect of a known cause, often, no doubt, threatened, but generally averted by precautions which experience, in this instance, had not taught. It was an unlooked-for mishap in the course of his employment. In common language, it was a case of accidental death. I feel that, in construing this Act of Parliament, as in other cases, there is a risk of frustrating it by excess of subtlety, which I am anxious to avoid." Citing Fenton v. Thorley & Co. (1903), A. C. C. 443; 5 W. C. C. 1, with approval. A fireman on board ship was seen frequently drinking water while in the stoke hole. Soon after he was found to be very ill. He next became unconscious and died. No postmortem was held and the medical evidence as to the cause of death was conflicting. The County Court judge granted compensation, and on appeal it was held that the question as to whether or not the workman did, in effect, sustain a personal injury by accident, arising out of and in the course of the employment, was one of fact for the County Court judge to decide. Johnson and Others v. Owners of Ship Torrington" (1909), 3 B. W. C. C. 68. A seaman was on duty on a blackened steel deck for some hours in the blazing sun with no shade, in a port in Hayti, at a temperature of 108 degrees to 120 degrees Fahrenheit. He suffered from blindness, due to exposure to the sun. It was held that the employment involved special exposure to the risk of sunstroke and that the accident arose out of the employment, and the man was therefore entitled to compensation. Davies v. Gillespie (1911), 5 B. W. C. C. 64. In the last-mentioned case the court said: "I do not desire in the least to depart from what I said in Warner v. Couchman, 4 B. W. C. C. 32. We ought to be very careful to avoid saying "Sunstroke," "heat stroke" and "frostbite" anything which might be held to mean that anyone whose occupation exposes him to the roughness of the weather more than some other occupation, was entitled to compensation for injury thus incurred. The only question is whether this man was in such exceptional circumstances that he was more exposed by reason of his occupation than other people would have been. That is a question of fact. The judge says, in order to perform his duties, he was compelled to be on a steel deck where there was no awning from 6 A. M. until 11 A. M. with only half an hour for breakfast, and leaning over a hatchway. The medical referee informs the judge that he attached importance to the fact that the exposure was prolonged; that that materially increased the risk. I cannot say that the judge is wrong in the conclusion at which he arrived. It is a question of fact, not of law. There was evidence to justify the inference he has drawn." A man of impaired vitality was at work laying and jointing pipes in a trench in a road, during excessive summer heat. The work involved his stooping a good deal. He suffered from sunstroke. It was held that this was not an accident and did not arise out of the employment and compensation was refused. Robson, Eckford & Co. v. Blakey (1911), 49 Sc. L. R. 254; 5 B. W. C. C. 536. In the last-mentioned case it was urged that because the man had to bend at his work in the excessive heat of the sun, he was subjected to a peculiar danger. In reply to this argument the court said: Now, since the days when Adam was expelled from Eden, I think every outdoor laborer has had to bend at his work, and I think it would be the very climax of absurdity to say that because a man had to go into the open air, and because he had to stoop, he was exposed to a peculiar danger because of his employment. *** We all know that July, 1911, was a hot month; but to say that any one who works, as it has been called, 'Neath the baleful star of Sirius,' is necessarily exposed to an excessive or peculiar danger, is a proposition which has no foundation." 66 "Sunstroke," "heat stroke" and "frostbite" Sunstroke or heat prostration, contracted by decedent in the course of his ordinary duty as a supervising architect, is a disease and does not come within the terms of a policy of insurance against bodily injuries sustained through external, violent and accidental means. Dozier v. Fidelity & Casualty Co. 46 Fed. Rep. 446; (Circuit Court, Western Dist. of Mo., June, 1891). A journeyman baker, whose duty it was at times to drive his master's cart and deliver bread, was frost-bitten in the hand. The County Court judge found that there was nothing in the man's employment which exposed him to more than the ordinary risk of cold to which any person working in the open was exposed on the day in question, and that the accident did not arise out of the employment. Therefore compensation was refused. (House of Lords) Warner v. Couchman (1911) 5 B. W. C. C. 177; aff'g 4 B. W. C. C. 32. A seaman at work on his ship at Halifax, N. S., sustained frostbite. The judge found that the workman had not proved that the frostbite was due to any particular circumstance in connection with his employment, nor had he been exposed to more risk of frostbite than is usual in winter at Halifax, and it was held that the accident did not arise out of the employment. Karemaker v. Owners of S. S. “Corsican" (1911), 4 B. W. C. C. 295. In the last-mentioned case the court said: "Halifax is a place where people do receive frostbite, and therefore it is proper and necessary to take steps to guard against it. In that sense the liability to frostbite is one of the normal incidents to which everybody is subjected by reason of the severity of the climate." A laborer on river and harbor work was standing on a lock wall giving signals for operating a cable carrier, when both his feet were frozen. Notwithstanding this, he continued to work for two days before the soreness and swelling compelled him to quit work, as he did not realize that his feet were frozen until he got to the fire. It was held that this was an |