WISCONSIN SUPREME COURT. Claire, Wisconsin. In connection with its establishment the defendant maintained an FRIEDA VENNEN, Admrx., etc., of Ger- outhouse and two toilets for its employees hard Vennen, Deceased, Appt., V. NEW DELLS LUMBER COMPANY, -) Wis. —, Respt. 154 N. W. 640.) Master and servant - workmen's compensation act — liability for typhoid fever. 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 defend1. Typhoid fever contracted by an emant was negligent in placing its intake pipes ployee through the negligent contamina- in such location that they carried into the tion of drinking water furnished by the boilers water that was contaminated by the employer is within an act providing compensation for injury accidentally sustained by an employee while performing service growing out of an incident to his employ ment. Statement by Siebecker, J.: 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. em The defendant is a corporation organized under the laws of the state of Wisconsin. The deceased, Gerhard Vennen, was ployed 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 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 Vennen, 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 here in question had more than four employees engaged in a common employment, and that it had filed notice of election to accept the provisions of the workmen's compensation act, and that the plaintiff's intestate had never filed any election not to accept the Plaintiff demurred to provisions thereof. this defense on the ground that it did not state facts sufficient to constitute a defense. The circuit court ordered that the demurrer be overruled. From such order, this appeal is taken. Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585; McNicol's Case, 215 Mass. 497, post, 306, 102 N. E. 697, 4 N. C. C. A. 522; Craske v. Wigan [1909] 2 K. B. 635, 78 L. J. K. B. N. S. 994, 101 L. T. N. S. 6, 25 Times L. R. 632, 53 Sol. Jo. 560, 2 B. W. C. C. 35; Hoenig v. Industrial Commission, 159 Wis. 646, post, 339, 150 N. W. 996, 8 N. C. C. A. 192; Steel v. Cammell, L. & Co. [1905] 2 K. B. 232, 74 L. As to the construction and ap-J. K. B. N. S. 610, 53 Week. Rep. 612, 93 plication of the workmen's compensation L. T. N. S. 357, 21 Times L. R. 490, 2 Ann. act generally, see annotation, ante, 23. Cas. 142; Adams v. Acme White Lead & As to whether compensation is recoverable for incapacity caused by a disease contracted while the workman is acting within the scope of his employment, see annotation, post. 289. Note. Color Works, 182 Mich. 157, post, 283, 148 The workmen's compensation act should be construed liberally in favor of its purposes, and not strictly as a statute in dero|gation of the common law. Sadowski v. Thomas Furnace Co. 157 Wis. 443, 146 N. W. 770; Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, post, 366, 142 N. W. 271, Ann. Cas. 1915B, 877. The contracting of disease is a personal injury. State ex rel. McManus v. Policemen's Pension Fund, 138 Wis. 133, 20 L.R.A. (N.S.) 1175, 119 N. W. 806. An accident covers all injuries accidentally sustained caused by negligence, as well as those occurring without the fault of any human agency. Y. 304, 20 Am. St. Rep. 748, 9 L.R.A. 617, 20 Am. St. Rep. 748, 25 N. E. 399; Smith v. Travelers' Ins. Co. 219 Mass. 147, L.R.A. 1915B, 872, 106 N. E. 607; Ludwig v. Preferred Acci. Ins. Co. 113 Minn. 510, 130 N. W. 5; Sherwood v. Johnson, 5 B. W. C. C. 686; Broderick v. London County Council [1908] 2 K. B. 807, 77 L. J. K. B. N. S. 1127, 99 L. T. N. S. 569, 24 Times L. R. 822, 15 Ann. Cas. 885; Fenton v. J. Thorley & Co. [1903] A. C. 443, 72 L. J. K. B. N. S. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314, 19 Times L. R. 684, 5 W. C. C. 1; Brintons v. Turvey [1905] A. C. 230, 74 L. J. K. B. N. S. 474, 53 Week. Rep. 641, 21 Times L. R. 444, 92 L. T. N. S. 578, 6 Ann. Cas. 137; Marshall v. East Holywell Coal Co. 93 L. T. N. S. 360, 21 Times L. R. 494; Hichens v. Magnus Metal Co. 35 N. J. L. J. 327; Re Sheeran, 28 Ops. Atty. Gen. 254.cago & N. W. R. Co. 112 Wis. 150, 56 L.R.A. Typhoid infection does not arise out of and is not peculiar to the discharge of the duties which the intestate was to perform. Hoenig v. Industrial Commission,. 159 Wis. 646, post, 339, 150 N. W. 996, 8 N. C. C. A. 192; Amys v. Barton [1912] 1 K. B. 40, [1911] W. N. 205, 81 L. T. J. N. S. 65, 105 L. T. N. S. 619, 28 Times L. R. 29; McNicol's Case, 215 Mass. 497, post, 306, 102 N. E. 697, 4 N. C. C. A. 522; Byrant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585; Craske v. Wigan [1909] 2 K. B. 635, 78 L. J. K. B. N. S. 994, 101 L. T. N. S. 6, 25 Times L. R. 632, 53 Sol. Jo. 560, 2 B. W. C. C. 35. There is nothing in the act itself to indicate that the intent or purpose of this enactment was to provide compensation in all cases where an action might otherwise be maintained for the recovery of damages. Steel v. Cammell, L. & Co. [1905] 2 K. B. 232, 74 L. J. K. B. N. S. 610, 53 Week. Rep. 612, 93 L. T. N. S. 357, 21 Times L. R. 490, 2 Ann. Cas. 142; Adams v. Acme White Lead & Color Works, 182 Mich. 157, post, 283, 148 N. W. 485, 6 N. C. C. A. 482; Broderick v. London County Council [1908] 2 K. B. 807, 77 L. J. K. B. N. S. 1127, 99 L. T. N. S. 569, 24 Times L. R. 822, 15 Ann. Cas. 885; Fenton v. J. Thorley & Co. [1903] A. C. 443, 72 L. J. K. B. N. S. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314, 19 Times L. R. 684, 5 W. C. C. 1. Messrs. Sturdevant & Farr, for respond ent: Where the conditions of compensation exist for any personal injury or death, the right of recovery of such compensation pursuant to the provisions of the act is exclusive. Milwaukee v. Althoff, 156 Wis. 68, post, 327, 145 N. W. 238, 4 N. C. C. A. 110; Smale v. Wrought Washer Mfg. Co. 160 Wis. 331, 151 N. W. 803. Milwaukee v. Industrial Commission, 160 Wis. 238, 151 N. W. 247; Ullman v. Chi 246, 88 Am. St. Rep. 949, 88 N. W. 41. The workmen's compensation act applies to injuries caused by disease, if the disease was the result of an accidental injury. Voelz v. Industrial Commission, Wis. 152 N. W. 830; Heileman Brewing Co. v. Schultz, Wis., 152 N. W. 446; Klawinski v. Lake Shore & M. S. R. Co. Mich., post, 342, 152 N. W. 213. A person walks, runs, eats, and drinks voluntarily, and yet he may sustain an accidental injury in doing either of such acts. United States Mut. Acci. Asso. v. Barry, 131 U. S. 100, 33 L. ed. 60, 9 Sup. Ct. Rep. 755; H. P. Hood & Sons v. Maryland Casualty Co. 206 Mass. 223, 30 L.R.A. (N.S.) 1192, 138 Am. St. Rep. 379, 92 N. E. 329; Higgins v. Campbell [1904] 1 K. B. 328, 73 L. J. K. B. N. S. 158, 68 J. P. 193, 52 Week. Rep. 195, 89 L. T. N. S. 660, 20 Times L. R. 129; Ismay v. Williamson [1908] A. C. 437, 77 L. J. P. C. N. S. 107, 99 L. F. N. S. 595, 24 Times L. R. 881, 52 Sol. Jo. 713. Siebecker, J., delivered the opinion of the court: This appeal presents an important question as to the liability and nonliability of employers under the provisions of the workmen's compensation act. The ruling upon the demurrer to the answer assumes that the facts stated in the pleading exist as alleged, regardless of evidence in respect thereto. Section 2394-3, subd. 3, provides that, where the right to compensation under the provisions of the workmen's compensation act exists for personal injury or death, it shall be the exclusive remedy against the employer for such injury or death. Milwaukee v. Althoff, 156 Wis. 68, post, 327, 145 N. W. 238, 4 N. C. C. A. 110; Smale v. Wrought Washer Mfg. Co. 160 Wis. 331, 151 N. W. 803. By § 2394-3 it is enacted: the compensation act, referring to a personal injury accidentally sustained by an "Liability for the compensation herein- employee while performing services growafter provided for, in lieu of any other lia-ing out of and incidental to his employbility whatsoever, shall exist against an em- ment, include all accidental injuries, whether ployer for any personal injury accidentally happening through negligence or othersustained by his employee, and for his wise, except those intentionally self-indeath, in those cases where the flicted. following conditions of compensation con cur: "(2) Where the employee is performing service growing out of and incidental to his employment. The inquiry is: Was the disease from which it is alleged Vennen died proximately caused by accident? Do the facts and circumstances alleged in the case set forth the conditions to entitle an employee to "(3) Where the injury is proximately compensation "for any personal injury accaused by accident, and is not incidentally sustained," which was "proxitentionally self-inflicted." mately caused by accident" while "perform The facts alleged show that the parties ing services growing out of and incidental to the action were subject to the compensa- to his employment?" We have already notion act. The inquiry then is: Was Venticed that the alleged injury was, under the nen's death proximately caused by accident facts stated in the pleadings, received by while he was "performing services growing deceased while in plaintiff's employ, and out of and incidental to his employment?" while he was "performing services growing The inference from the alleged facts is rea-out of and incidental to his employment." sonably clear that Vennen at the time of Whether or not the alleged accidental inthe alleged injury resulting in his death was jury caused Vennen's death is sufficiently "performing services growing out of and in-pleaded, and remains a question for detercidental 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 Commission, 154 Wis. 97, post, 366, 142 N. W. 271, Ann. Cas. 1915B, 877: "In giving construction to such statutes words are to be taken and construed in the sense in which they are understood in common language, taking into consideration the text and subject-matter relative to which they are employed." mination from the evidence at the inquest of the case. There remains the important inquiry: Do the allegations state a case showing that Vennen's death is attributable to "accident" in the sense of the compensation act? It is urged that the contracting of typhoid disease under the facts and circumstances stated does not show that his death was due to an accidental occurrence. The term "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 injury to the employee. Such an occurrence may be due to purely acci"A very large proportion of those events dental causes, or it may be due to overwhich are universally called accidents hap-sight and negligence. The fact that depen 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." The words should be given, as intended by the lawmakers, their popular meaning. Sadowski v. Thomas Furnace Co. 157 Wis. 443, 146 N. W. 770. ceased 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 unin 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, 1 Am. Rep. 157, 7 Am. Neg. Cas. 174. The intention of the legislature to include accidental injuries resulting from negligence within tended and unexpected mishap incident to 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 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 I think it is very improbable that the legislature intended to give compensation where death resulted from an accident and 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 medi he was "performing services growing out of tentionally self-inflicted;" and (2) for and incidental to his employment.' It is death where the employee is performing alleged that the consequences of this alleged such service, and where the injury causing accident resulted in afflicting Vennen with death is "proximately caused by accident," typhoid disease, which caused his death. and not intentionally self-inflicted. To jusDiseases caused by accident to employees tify recovery under this statute, where while "performing services growing out of death does not ensue, there must be a perand incidental to his employment" are in-sonal injury actually sustained, which injuries within the contemplation of the work- jury is proximately caused by accident. men's compensation act. This was recog- Where recovery is sought for death, the nized in the case of Heileman Brewing Co. statute does not in express terms say that v. Schultz, Wis. —, 152 N. W. 446, and a personal injury must actually be susVoelz V. Industrial Commission, Wis. tained, but only that there must be an in152 N. W. 830. The English compensation jury "caused by accident." 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 contrac-deny it in case of mere disability, and that tion of a disease may be caused by accident. See the following cases: Brintons v. Turvey [1905] A. C. 230, 74 L. J. K. B. N. S. 474, 53 Week. Rep. 641, 92 L. T. N. S. 578, 21 Times L. R. 444, 2 Ann. Cas. 137. A workman became infected through a bacillus from the wool which he was assort-cal attendance in case of recovery. If this ing, resulting in giving him the disease of be so, then two things must occur as a conanthrax, of which he died, and it was held dition precedent to recovery: There must that it was a case of "injury by accident." be a personal injury; and it must be caused Alloa Coal Co. v. Drylie [1913] S. C. 549, by accident. If the taking of typhoid germs 50 Scot. L. R. 350, 6 B. W. C. C. 398, 1 into the system is a "personal injury” and Scot. L. T. 167, 4 N. C. C. A. 899. Drylie, an "accident," within the meaning of the a workman in a coal pit, through accident, | law, then the decision is right. If there can 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 lia-ditions bility has been found distinguished between worked. If I understand the opinion cordisease resulting from accidental injury and rectly, most, if not all, diseases may be acdisease which results from an idiopathic cidental, and recovery may be had on accondition of the system, and not attributa- count of the same, except those of an ble to some accidental agency growing out "idiopathic" character. "Idiopathy" is deof the employment. The latter class of fined as "a morbid state or condition not diseases are held not to be within the preceded and occasioned by any other discontemplation of the act. We are of the opin-ease; an individual or personal state of ion that the decision of the trial court hold-feeling; a mental condition peculiar to one's ing that the facts pleaded show that Ven- self." "Idiopathy" is defined as "of or pernen's death was caused by accident while taining to a morbid state; not performing service growing out of and inci- secondary or arising from any other disdental to his employment is correct, and ease; as an idiopathic affection." Century that the demurrer was properly overruled. | Dict. The order appealed from is affirmed. Barnes, J., dissenting: 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 con in the surroundings in which he 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 in- double them. If the legislature so intend By § 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 ed, well and good. I cannot bring myself vide compensation for sickness not resulting to believe that it did so intend. from external bodily violence. Wisconsin It is a matter of common knowledge that was one of the pioneers in this kind of legcases of sickness and disease are much islation. It was known that it would enmore, numerous than cases of what are com- tail large burdens on our manufacturers, monly known as accidents. The compensa- who would thus be placed at a disadvantion act was passed after an exhaustive tage in competing with employers in other study of the subject of industrial insurance states where no such law was then in exby a committee of the legislature, whichistence. The law was an optional one, and covered a period of two years. There were is so yet. As was expected, there was a two classes of acts in operation in other great deal of hesitancy on the part of emjurisdictions, one covering diseases and ac-ployers about coming under it. Had it been cident, the other not, in terms at least, supposed that it provided compensation for covering disease. If it had been the pur- disease or sickness, it is probable that the pose of the legislature to include the large purpose of the law would have been pracclass of cases that would result from sick- tically nullified. The effect of the decision ness, it is fair to presume that it would in this case is, of course, conjectural, but have done so in express and unmistakable it is not without the range of possibilities terms, and not by the use of language that that some at least of those who are now unis at least popuarly understood not to in-der the act will exercise their election not clude them. In the numerous discussions to remain under it. It is now a generally on the proposed law before the legislature, which are fresh in mind, it does not appear to have occurred to anyone 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. 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 Now, the words "personal injury" are that the act passed has been stretched by words commonly and ordinarily used to des- construction so as to add to it in all probignate injury caused by external violence, ability as large a class of claims and liaand they are not used to indicate disease. bilities as that actually included in the Neither do we speak of sickness as an "ac-original act. cident" or an "injury." When we hear that The great weight of authority is contrary someone has suffered an accident, we at to the decision in this case. In Fenton v.. once conclude that he has suffered some J. Thorley & Co. [1903] A. C. 443, 72 L. more or less violent external bodily injury. J. K. B. N. S. 787, 52 Week. Rep. 81, 89 It is in this sense, I think, that the words L. T. N. S. 314, 19 Times L. R. 684, 5 W. "personal injury” and "injury C. C. 1, it is said that the words "by accicaused by accident” are used in the statute. dent" are used to qualify the word "inWhen our neighbor has typhoid fever, we jury," confining it to certain classes of do not think of classifying his ailment as injuries and excluding other classes, as, for an "accident," an "injury," or a "personal instance, injuries by disease or injuries selfinjury." It is only by an extremely far- inflicted by design. In Broderick v. Lonfetched and, I believe, illogical construction | don County Council [1908] 2 K. B. 807, 77 of the words referred to, that they can be held to include disease not resulting from some external violence. L. J. K. B. N. S. 1127, 99 L. T. N. S. 569, 24 Times L. R. 822, 15 Ann. Cas. 895, the inhalation of sewer gas by which an em It is well-nigh a demonstrable certainty ployee contracted enteritis was held not to that the legislature never intended to pro- be a personal injury by accident. Paraly |