37

was held that an internal injury caused to a person in a normal state of health was a fortuitous and unforeseen event, where he suddenly tore several fibers of the muscles of his back while lifting a heavy beam. It was likewise held in another case that a workman in his master's field, who, finding that the grain had been trodden down by bullocks, stooped to raise it and sprained his left leg, was within the remedies of this Act. The language of the British Act is "personal injury by accident arising out of and in the course of employment." The English cases make no distinction between an accident and a fortuitous event as used in some acts; for it is said in the case last mentioned, in answering the contention there made that an injury, to be within the British Act, must be caused by some fortuitous and external event, that: "The word 'accident' is a popular word of very wide meaning. Originally a grammarian's word, it has been used from Dr. Johnson's time until to-day to mean 'that which happens unforeseen, casualty, chance.' For four years this man had successfully used these muscles to lift this weight; owing, perhaps to carelessness, perhaps to a slip, perhaps to some other cause, except disease, he snaps the fibers of the muscles that had always successfully done the work, and if any ordinary person had been asked what had happened to him, he would have said that the man had had an 'accident,' and I think the word would have been rightly used. To me it is the same as if he had been using a rope strong enough for the purpose, and by overstrain or sudden jerk the rope had snapped and the beam had fallen upon him. That would be an accident. In one case the work is done by a rope; in the other, by a set of muscles. In each case the machinery is normally fit for the work, but the unexpected happens, the rope or muscle snaps and there is an accident. To my thinking, there is in the word 'accident' always an element of injury. *

As to the word 'fortuitous,' I do not think I need trouble much about it. If the injury were caused by disease, it is clear that the

37 Boardman v. Whitworth, 3 W. C. C. 33.

applicant could not recover, but I find as a fact that the man was not in any way diseased. Indeed, it was not seriously contended that he was. 'Fortuitous' means 'accidental,' 'casual,' 'happening by chance;' and I have already said that, in my opinion, this injury was caused by an accidental and fortuitous event.

"38

In determining whether the injury has been caused by an accident or not, one must discriminate between that which must occur and that which need not necessarily occur in the course of the employment. If the thing must happen, it is not an accident, but if it need not happen, then there is the fortuitous element, and there is an accident.” Another English case arose out of these circumstances: The workman, while turning a wheel attached to a press, "suddenly felt something which he describes as a tear in his inside, and upon examination it was found that he was ruptured. There was no evidence of any slip, wrench, or sudden jerk." It was held below, following Hensey v. White, 2 W. C. C. 1, that there could be no recovery because of "an entire lack of the fortuitous element." This contention was overruled, and it was said. that the word "accident," as used in the British Act, was used in its popular ordinary sense as denoting an unlooked for mishap of an untoward event which is not expected or designed."

Whether an injury is an "accident" is a mixed question of law and fact. When applied to ascertained facts it is a question of law."1

40

38 Purse v. Hayward, 85 L. T. 502.

39 Fenton v. Thorley & Co., 5 W. C. C. 1.

40 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Roper v. Greenwood (1900) 83 L. T. 471.

41 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Fenton v. Thornley & Co. (1903) A. C. 443, 19 L. T. R. 684.

§ 92. Definition

DIVISION II. PERSONAL INJURY

The words "personal injury” have been given in many connections a comprehensive definition.42 They had a well-defined meaning in the law prior to the passage of the Compensation Acts, and, under the rule that words of common and approved meaning should be given such meaning in the construction of a statute, they retain this meaning in the Compensation Acts. They include, as

43

42 In re Hurle, 217 Mass. 223, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919.

43 In re Madden, 222 Mass. 487, 111 N. E. 379. In this case the court, in discussing a construction of these words as used in the Massachusetts Act, said: "It is argued that grave economic consequences of far-reaching effect may follow from the Act as thus construed. It is said that persons not in good health may be altogether excluded from employment, to their severe hardship, while the cost of conducting commercial and industrial enterprises may become prohibitively large, all to the detriment of the general welfare and of the financial resources of the commonwealth. These considerations are of great public moment. But these factors relate to legislative questions, and the arguments founded on them are distinctly legislative arguments. They may be entitled to attention and deliberation at the hands of the legislative department of government. In the present forum they cannot have decisive significance, even if it were plain that the enumerated consequences were inevitable. The function of the judicial department of the government is simply to determine whether an act is within the power vested by the Constitution in the Legislature, and then to enforce it according to its true meaning in cases as they arise. While the consequences to which a particular construction or application of a statute would lead have an important bearing in determining what may have been the intent of the Legislature in using words of doubtful import (Greene v. Greene, 2 Gray [Mass.] 361, 364, 61 Am. Dec. 454), they cannot control a plain rule of positive law established by clear language in a legislative mandate. The words 'personal injury' had meaning in the law prior to the passage of the Workmen's Compensation Act sufficiently definite and well defined clearly to include the kind of personal harm here disclosed, so that it hardly can be assumed under all the circumstances that the Legislature used them in a different or unusually constricted sense. There are no conditions which warrant a judicial interpretation of the words 'personal injury' in the Act as meaning the same as 'personal injury by accident,' or as excluding from the scope of 'personal injuries' HON.COMP.-19

used therein, whatever lesion or change in any part of the system produces harm or pain or a lessened faculty of the natural use of any bodily activity or capability. Heat prostration sustained in the course of employment is an "injury," within the meaning of the Compensation Acts.45 As used in the Nevada Act, the words "injury" or "injured" refer to an event or mishap not expected or designed."

The acceleration or aggravation of a pre-existing ailment may be a personal injury.47

The word "injury" is used comprehensively in the federal Act to embrace all the cases of incapacity to continue the work of the

those instances where a diseased physical condition may have invited, or rendered the employé unusually susceptible to, 'personal injury.' It may be that the Legislature intended a more narrow field than actually was described by the words used. But, if that be so, the remedy must be sought from the Legislature. There are no means by which the court can ascertain the purpose and effect of a statute, except from the words used when given their common and approved meaning." Bergeron, Pet'r, 220 Mass. 472, 475, 107 N. E. 1007.

44 Compensation was properly allowed for permanent incapacity of both legs from paralysis, due to an injury to the spinal cord, though, in a technical sense, there was no direct injury to the legs. The word "injury," as it should be construed in this connection, includes whatever lesion or change in any part of the system produces harm or pain or a lessened faculty of the natural use of any bodily activity or capability. (St. 1911, c. 751, pt. 2, § 11, amended by St. 1913, c. 696) In re Burns, 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787. Where an employé, after carrying a heavy bag of coal and while reaching for another, falls to the ground in a dying condition in consequence of the muscles of his heart being overtaxed by his exertion, his death is caused by an "injury" within the meaning of the Workmen's Compensation Act. In re Fisher, 220 Mass. 581, 108 N. E. 361.

An unusual exertion or strain, resulting in incapacity for work, is an

45 Ress v. Youngstown Sheet & Tube Co., vol. 1, No. 7, Bul. Ohio Indus. Com. p. 194.

46 Rep. Nev. Indus. Com. 1913-14, p. 25.

47 Hartz v. Hartford Faience Co., 90 Conn. 539, 97 Atl. 1020. See § 98, post.

48

employment, including all cases where as a result of the employé's occupation he becomes unable to carry on his work. Where a bodily affliction is not the result of a gradual process or slow accumulation of trifling hurts or of a constant repetition of known or injurious effects, but, though caused without definite accident, develops rapidly and is recurrable to a fixed time, and is neither a necessary result nor a result reasonably to be feared, it is an injury within the federal Act, regardless of the fact that it is the natural result of surrounding conditions.49 But a disability referable to no definite accident or occurrence, though arising in the course of employment, involving chiefly a gradual weakening, wearing out, or breaking down of the employé, is not an injury within the Act.50 An employé obeying orders of his superior and submitting to vaccination, and disabled thereby, is injured within the Act, as is a plate printer following his usual occupation and sustaining a sprain of the wrist and a rupture of the synovial sac.52 Frozen feet constitute an injury. An injury caused by a strain due to the condi

53

51

injury within the meaning of the Compensation Act. Hackford v. Veeder & Brown, The Bulletin, N. Y., vol. 1, No. 8, p. 10.

48 In re Clark, 27 Op. Atty. Gen., Op. Sol. Dept. of L. (1915) 200.

49 In re Irving, Op. Sol. Dept. of L. 249. Where claimant was engaged in scaling the inner plating of a caisson, and particles of the red lead being scaled became imbedded in sore spots on the face or were inhaled into the system, causing incapacity, it was held to be an injury. In re Thayer, Op. Sol. Dept. of L. 266.

50 In re Hewitt, Op. Sol. Dept. of L. 248.

The statute, if not restricted to injuries of an accidental nature, is at least confined to injuries which are referable to some particular event capable of being fixed in point of time. In re Clark, Op. Sol. Dept. of L. 188. In re Flora, Op. Sol. Dept. of L. 226.

51 An employé, vaccinated by direction of his superior officer upon recommendation of local health authorities and the public health service, is injured within the act if incapacity follows. In re Haley, Op. Sol. Dept. of L. 255.

52 In re Clark, Op. Sol. Dept. of L. 188.

53 In re Luttrell, Op. Sol. Dept. of L. 219.