
    BUCHANAN et al. v. MARYLAND CASUALTY CO.
    (No. 717-4639.)
    (Commission of Appeals of Texas, Section B.
    Nov. 24, 1926.)
    1. Master and servant <&wkey;346 — Compensation Law does not depend on negligence.
    Compensation Law does not depend on negligence.
    2. Master and servant &wkey;>373 — Typhoid fever contracted from impure water’or food furnished by employer, held not accidental injury under Workmen’s Compensation Act.
    Under Workmen’s Compensation Act (Rev. St. 1925, art. .8306 et seq.), typhoid fever, contracted by employee as result of impure water or food furnished by employer, is not an accidental injury.
    3. Master and servant <&wkey;373 — Typhoid- fever, contracted from impure water or food furnished by employer, held not compensable injury under Workmen’s Compensation Act.
    Under Workmen’s Compensation'Act (Rev. St. 1925, art. 8306 et seq.), typhoid fever, contracted, by employee as result of impure water or food furnished by employer, is not compensa-ble injury. ,- . ,, •
    
      Certified Questions from. Court of Civil Appeals of Tenth Supreme Judicial District.
    Proceeding under the Workmen’s Compensation Act by O. M. Buchanan and others (for the death of their son, O. M. Buchanan, Jr.), claimants,- against the Maryland Casualty Company. Appeal was taken from an award of the Industrial Accident Board and demurrer to plaintiff’s cause of action was sustained. Upon appeal to Court of Civil Appeals, the judgment, of the district court was affirmed. Pending hearing on motion for rehearing, Court of Civil Appeals certified questions to Supreme Court.
    Questions answered.
    H. B. Davis, of Corsicana, and Bryan & Maxwell, of Waco, for appellants.
    Hitzfeld & Lynch, of San Antonio, Davis, Jester & Tarver, of Corsicana, and Jos. W. Hale, of Waco, for appellee.
   POWELL, P. J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Tenth District:

“O. M. Buchanan, Jr., the son of appellants, was working for the J. K. Hughes Development Company in the oil fields of Navarro county, and while so engaged was stricken with typhoid fever, from which he died. The J. K. Hughes Development Company was at said time employing more than three men and was operating under the Workmen’s Compensation Act, having taken out a policy of insurance with ap-pellee under the provisions of said act.
“Appellants filed their claim with the Industrial Accident Board, claiming that their son contracted typhoid fever from which he died by reason of the food or drinking water which his employer J. K. Hughes Development Company, was required to and did furnish him under his contract of employment. The Industrial Accident Board made an award, from which an appeal was taken by appellee to the district court, which sustained a general demurrer to appellants’ cause of action, holding, in effect, that typhoid fever contracted by Buchanan while in the employment of Hughes Development Company, and as a result of the water and food furnished him by it, was not a compensable injury.
“At a former day of this term of court we affirmed the judgment of the trial court, and the cause is now pending before us on motion for rehearing. By reason of the importance of the question involved, and because of the insistence on the part of appellants that our opinion is in conflict with the case of Millers Indemnity Underwriters v. Heller, 253 S. W. 853, in which case a writ of error was refused by the Supreme Court, and because we have some doubt with reference to the correctness of our holding, we deem it advisable to certify to the honorable Supreme Court for determination the following questions material to the disposition of this appeal:
“First Question. Under the Workmen’s Compensation Act, is typhoid fever, contracted by an employee as a result of impure water or food furnished by an employer, an accidental injury under the terms of said act?
“Second Question. Under ■ the Workmen’s Compensation Act, is typhoid fever, contracted by an employee as a result of the impure water or food furnished by an employer, a com-pensable injury?
“Third Question. Was the trial court correct in sustaining the general demurrer of ap-pellee to appellants’ petition, and was it error for this’court to affirm the holding of the trial court in said respect?
“In our opinion we followed what we thought was the holding in the ease of Texas Employers’ Insurance Association v. Jackson (Tex. Com. App.) 265 S. W. 1027, which appellants contend is in conflict with the Heller Case, supra, and if not in conflict therewith, that the Heller Case should control in. the disposition of this case.”

We think the Court of Civil Appeals correctly decided this case. A copy of its opinion accompanies the record. We quote from that opinion as follows:

“A number of the states have Workmen’s Compensation Acts. No two of them, however, are, so far as we have found, exactly the same, and there have been many decisions written by the courts of the different states attempting to construe said acts. Our Workmen’s Compensation Act defines what is to be construed as an injury in section 5 of article 8309 of the Statutes, which reads:
“‘The terms “injury” or-“personal injury’’ shall be construed to mean damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom.’
“In those states where the Workmen’s Compensation Act provides that an injury is com-pensable which is caused by accident and which grows out of and is incidental to the servant’s employment, the weight of authority seems to be that a disease is a compensable injury if it was contracted by the employee while engaged in and as a result of his employment. Ætna Life Insurance Co. v. Portland Gas Co., 229 F. 552, 144 C. C. A. 12, L. R. A. 1916D, 1027; Yennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273, Ann. Cas. 1918B, 293; Wasmuth-Endicott Co. v. Karst, 77 Ind. App. 279, 133 N. E. 609; H. P. Hood & Son v. Maryland Casualty Co., 206 Mass. 223, 92 N. E. 329, 30 L. R. A. (N. S.) 1192, 138 Am. St. Rep. 379; Columbia Paper Stock Co. v. Fidelity & Casualty Co., 104 Mo. App. 157, 78 S. W. 320. Where, however, as under our statute, the terms ‘injury’ and ‘personal injury’ are defined to mean ‘damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom,’ the authorities seem to hold that before an employee who contracts a disease is entitled to compensation it must be shown that the disease is the direct result of the injury. The definition of ‘injury’ contained in the Workmen’s Compensation Law of New York (Consol. Laws, c. 67) is very similar to ours, and the Supreme’ Court of that state, in Richardson v. Greenberg, 188 App. Div. 248, 176 N. Y. S. 651, held that a disease which was not superinduced by an injury inflicted upon the body was not compensable, and in said case held that an employee who contracted glanders by handling horses which had said disease could not recover. To the same effect is the holding in State ex rel. Fairbault Woolen Mills Co. v. District Court, 138 Minn. 210, 164 N. W. 810, L. R. A. 1918F, 855; Renkel v. Industrial Commission of Ohio, 109 Ohio St. 152, 141 N. E. 834; Industrial Commission of Ohio v. Cross, 104 Ohio St. 561, 136 N. E. 283. The Supreme Court of Texas, speaking through the Commission of Appeals, in Texas Employers’ Insurance Association v. Jackson, 265 S. W. 1027, held that pneumonia contracted by the employee while engaged in his employer’s business and caused by the negligence of his employer was not a compensable injury.
“Since the Legislature has limited, by its definition, diseases of employees for which compensation is allowable to such diseases as naturally result from an injury as defined above, we do not think said act should be construed to or that it does cover diseases contracted by the employee which are not caused by an injury, although, the disease may have been caused by the conditions under which he was forced to work. The courts have not the power to enact laws; they can only construe them.”

It is quite clear that the great weight of authority, under a statute similar to ours, is in line with the opinion of the Court of Civil Appeals in this case. Even in one of the cases under dissimilar statutes, where typhoid fever was involved, the dissenting justice said that the great weight of authority was contrary to the decision even in that case. We refer to the Wisconsin case of Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640. In fact, even in the two or three instances where, under more favorable statutes to the employee, recovery in typhoid fever cases has been permitted, there has usually been a dissenting opinion. At least, that was true in the Indiana case. There is no decision which we have been able to find allowing recovery in this kind of a case under a statute similar to ours.

Under statutes similar to ours, it is the uniform holding of the courts that before any disease is comp'ensable, it must be the direct result of an injury. Not only so, but that injury must be to the physical structure of the body. This language has been construed to mean that the disease must result from violence upon the external portion of the body. This latter construction has been recently upheld by our Supreme Court. We refer to the cases of Texas Employers’ Insurance Association v. Jackson, 265 S. W. 1027, and that of Ætna Life Insurance Co. v. Graham, 284 S. W. 931. The Jackson Case was by Section A of the Commission of Appeals and the Graham Case by this court. The latter case was written subsequent to the drafting of the opinion of the Court of Civil Appeals in the instant case.

In the Jackson Case, an employee was forced by his duties to expose himself to incessant rains without proper protection fur- : nished by his employer. He was drenched by water.' It soaked in through his skin and body. He was chilled and contracted pneumonia. But, in that case, it was held that there was no external violence to his body and he was not permittted to recover. In the Graham Case, a girl employee contracted tuberculosis as the result of gas fumes she inhaled while performing her duty in dye works. But in that case it was held that she died from an occupational or industrial disease which was not due in any sense to any external violence. In neither of these cases was the decision influenced in any way by the question as to whether or not the employer was negligent; The Compensation Law does not depend upon negligence. It was merely held that there was no accidental injury within the purview of our statute. The two decisions just reviewed by us are not in conflict with the Heller Case mentioned in the certificate. In that case, it appears that the injury was caused by external violence. A man had severed the skin on his hand. The dirt and lint from the cotton seed with which he was working was forcibly injected into that wound on his hand. From the injection of this poison, blood poison set up. The refusal of the writ of error in that case is in entire harmony with the holdings in the two recent cases by the Commission.

The decision of the Court of Civil Appeals in the case at bar is in line with the authorities in other states which have statutes most similar to ours. It is in line with the former •decisions of the Commission of Appeals.

In view of what we have said, we recommend that the first question certified be answered in the negative. We recommend that the second question be answered in the negative. We recommend that the third question be answered to the effect that the trial court correctly sustained the general demurrer and that the Court of Civil Appeals reached the right conclusion in affirming such action by the trial court.

CURETON, C. J. The opinion of the Commission of Appeals answering certified questions adopted, and orde'red certified to the Court of Civil Appeals. 
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