Pattiani v. Industrial Acc. Com. , 199 Cal. 596 ( 1926 )

I dissent. According to my understanding of the record the petitioner in substance alleged in his application for compensation and undertook to show before the Commission that he contracted typhoid fever by exposure to that disease during an epidemic thereof in New York. Evidence was introduced tending to show the existence of the epidemic and the cause thereof. The Commission found that "there was prevalent in said locality an epidemic of typhoid fever," but "that the evidence does not establish as a fact that said epidemic was caused or aggravated by contaminated oysters." I am at a loss to understand in what manner the latter part of the finding tends to negative the allegation that the applicant contracted the disease because of the epidemic thereof. It is not even a finding that the applicant did not contract the disease by eating contaminated oysters, and if the issue is whether the disease was contracted by eating contaminated oysters, then the Commission failed to find upon that issue. If, as I believe to be true, the issue is whether the disease was contracted because of the epidemic, then the Commission either found that the disease was so contracted or failed to find upon that issue. It is the duty of the Commission "to make and file its findings upon all facts involved in the controversy." (Workmen's Compensation Act, sec. 20; ShipbuildingCo. v. Industrial Accident Com., 70 Cal. App. 495, 497 [233 P. 392].) It appears clear to me, however, that the reasonable interpretation of the findings is that the applicant contracted the disease during the epidemic thereof in New York and because of the existence of such epidemic. The finding that "the evidence does not establish as a fact that said epidemic was caused or aggravated by contaminated oysters" is immaterial. The eating of raw oysters by petitioner and the infection of oysters then being sold in the New York market are not ultimate but evidentiary facts, tending to prove the ultimate fact found by the Commission that the disease was contracted in New York during the existence of the epidemic in that city. The finding that "the fact that applicant was required by his employment to visit or sojourn in a locality where there was an epidemic of disease does not constitute a special exposure arising out of the employment," in my opinion refutes itself. It is axiomatic that to go from a place of safety into a place of danger is to incur a special risk, and if one's employment requires him to incur such risk any injury resulting therefrom certainly arises out of the employment. The language of the majority opinion implies that if the Commission had found that the disease was contracted by eating contaminated oysters the petitioner would be entitled to compensation. I am unable to distinguish between such a case and that disclosed by the findings. Typhoid fever is not communicable by mere personal contact with a person afflicted with that disease as in many infectious diseases, such as smallpox or scarlet fever, but is contracted only by taking the germs of the disease into the alimentary canal, usually by means of food or drink. Under petitioner's contract of employment, he was furnished his traveling expenses, including his board and lodging. The situation is the same as if these necessaries had been supplied by the employer on the latter's premises, and eating and drinking, as well as sleeping, were incidental to the employment, and any injury therefrom arose out of the employment. (Brodin's Case, 124 Me. 162 [126 A. 829]; Frankamp v.Fordney Hotel, 222 Mich. 525 [193 N.W. 204]; Ames v. LakeIndependence Lumber Co., 226 Mich. 83 [197 N.W. 499];Wasmuth-Endicott Co. v. Karst, 77 Ind. App. 279 [133 N.E. 609]; Scott Howe Lumber Co. v. Industrial Commission ofWisconsin, 184 Wis. 276 [199 N.W. 159]; Vennen v. New DellsLumber Co., 161 Wis. 370 [Ann. Cas. 1918B, 293, L.R.A. 1916A, 273, 154 N.W. 640]; see, also, State Compensation Ins. Fund v.Industrial Acc. Com., 194 Cal. 28, 35 [227 P. 168];Associated Oil Co. v. Industrial Acc. Com., 191 Cal. 557, 559 [217 P. 744]; Judson Mfg. Co. v. Industrial Acc. Com.,181 Cal. 300, 302 [184 P. 1]; Harival v. Hall-Thompson Co.,98 Conn. 753 [120 A. 603]; Stansberry v. Monitor Stove Co.,150 Minn. 1 [20 A.L.R. 316, 183 N.W. 977].) It seems to me to be immaterial whether the germs of the disease were contained in one kind of food or another or that it was impossible to determine what particular food or drink was contaminated. Such proof is rarely possible. The discase does not become manifest for several days after the germs have been taken into the system. Where one goes into a place in which a communicable disease is epidemic, from a place where such an epidemic does not exist, and at the end of the normal period of incubation thereafter the presence of the disease in his system becomes manifest, from these facts, in the absence of a showing of any other exposure, the mind naturally, and at first blush, logically draws the inference that the disease was contracted at the place of and because of such epidemic, even though it might be conjectured that the disease was otherwise contracted from some unknown source.

It is true that an injury by disease, claimed to have been contracted during an epidemic thereof, like an injury caused by the elements, is not compensable in the absence of a showing of a special risk, but this means no more than that the risk or danger must be materially greater than that of the general public. (McManaman's Case, 224 Mass. 554 [113 N.E. 287]; CentralIllinois Pub. Serv. Co. v. Industrial Com., 291 Ill. 256 [13 A.L.R. 967, 126 N.E. 144].) The term "general public," however, is flexible. It may include the inhabitants of a large territory or only those of a small area, depending upon the connection in which it is used. If petitioner's regular employment had been in New York City, then, under the findings, he would not be entitled to compensation, because his risk would have been no greater than that of the general public of that city of which he would have been a part. But since his regular employment was in San Francisco, where there was not an epidemic of typhoid fever, and he was required to go, on a temporary and special mission, to New York, where typhoid fever was epidemic, the general public whose risk is to be compared with that of petitioner should, in my opinion, include the people of San Francisco as well as those of New York. If that be true, there is no escape from the conclusion that petitioner incurred a special risk by going to New York. If it were established in any case that an employee was required in the discharge of his duties to go into a home in which a patient was afflicted with a contagious disease and that there contracted the disease from such patient, it would not be contended, I take it, that the injury was not compensable. I can see no difference in principle between such a case and one where the employee is required to go from a place of safety into a place where a contagious disease is epidemic and there contracts the disease. It is true that the cause of the infection in the latter case would probably be more difficult of proof, but, being satisfactorily proved, as is shown by the findings in this case, the rule should be the same. If, under the circumstances of this case, the petitioner had suffered a physical injury through violence, as in a railroad or street-car accident, no one would contend that he was not entitled to compensation. Why should the rule be different where the injury is by disease, the effects of which may be more serious and lasting than those of an injury through violence?

Prior to the enactment of the Workmen's Compensation Act it was held that "if the employer have knowledge or information showing that the particular employment is from extraneous causes known to him hazardous or dangerous to a degree beyond that which it fairly imports or is understood by the employee to be, he is bound to inform the latter of the fact or put him in possession of such information. . . . The nature or character of the agency or means through which the danger of injury to the employee is to be apprehended can make no difference in the rule. . . . And if the employer have such information or knowledge and withhold it from the employee and the latter afterward be injured in consequence thereof, the employer is liable to him in damages therefor." (Baxter v. Roberts, 44 Cal. 187, 192 [13 Am. Rep. 160].) If an employee is set to work, without warning, in a room in which a patient is sick with typhoid fever and the employee thereby contracts the disease, "he being ignorant of the danger, and unable to know of it by the exercise of ordinary care, the master is liable if he either knew, or in the exercise of ordinary care ought to have known of the danger." (Kliegel v.Aitken, 94 Wis. 432 [59 Am. St. Rep. 901, 35 L.R.A. 249, 69 N.W. 67].) It will probably be conceded that if the employee had been sent, under similar circumstances, into a place where an epidemic of a contagious disease was prevalent, and had there contracted the disease, the rule would be the same. If, under the facts and circumstances stated, an injured employee would have had a cause of action for negligence, it would seem to follow that, under the terms of the Workmen's Compensation Act, he would be entitled to compensation upon proof of all of such facts and circumstances except that of the employer's knowledge or negligence, the right to compensation under the act being in no manner dependent upon such knowledge or negligence.

While the questions here presented may, in some respects, be distinguishable from those in the Dryden and Shepherd cases, I prefer to place my dissent frankly, though with the greatest respect, upon the ground that, assuming the effect of those decisions to be as stated in the majority opinion, they are erroneous and ought to be overruled. In the opinion of the Commission in the Dryden case it is said: "It is certain that compensation could not be allowed for an injury sustained in the form of a contagious or infectious disease where the risk of such a contagion or infection was a risk of the commonalty. . . . Of course, the commonalty did not have access to No. 314 Locust Street, San Francisco, but the risk of infection from that source was a risk participated in by every person who for any reason did enter that home during the interim between the two periods of quarantine, and therefore and for that reason the risk was not a very special one appertaining to the industry in which applicant was engaged." A very small percentage of the inhabitants of a large city ever have occasion to enter any one particular home and the comparatively few who do enter it in no sense constitute the general public. Under the rule stated by the Commission, an employee whose duties take him into a home in which there is a contagious disease can never recover compensation for injury resulting from the exposure, however clearly it may be proved that he contracted the disease there, because all other persons who enter the home take the same risk. The fallacy of the argument is in comparing the employee's risk, not with that of the general public, but with the limited number thereof who may enter the home. Applying the same rule to injuries through violence, it would preclude a recovery in all accidents incident to travel. Excluding cases involving epidemics, the right to compensation in cases of injury by disease should be determined, in my opinion, upon the principles which are applicable to other accidents which occur through human agencies. Since the means and sources of infection must usually be based upon observed conditions, inferences from which may or may not be correct, it is reasonable to require clear proof of such means and sources, but, when satisfactorily established, no different rule should be applied than in other cases. Where the disease is contracted during an epidemic thereof, a different rule applies, and an employee claiming compensation must show that his employment exposed him to a materially greater risk of contracting the disease than that of the general public. But this rule, as it appears to me, presupposes that the employee was a part of such general public. The reasoning of the Commission in the Shepherd case, in my opinion, is fallacious in that it compares the risk of the employee, who was in Denver temporarily and for a special purpose, with that of the general public of Denver, where the epidemic of smallpox was raging. But for his employment, the employee would not have been in Denver or have incurred the risk, and therefore his risk was special.

It has been said that the theory of the Workmen's Compensation Act "is that the risk of injury to workmen in the industries governed by the law should be borne by the industries, rather than by the individual workman alone." (Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 694 [151 P. 398, 401].) Section 69 of the act provides: "Whenever this act, or any part or section thereof, is interpreted by a court, it shall be liberally construed by such court with the purpose of extending the benefits of the act for the protection of persons injured in the course of their employment." It appears to me that, without resorting to a liberal construction of the act, the petitioner is entitled to compensation under the facts found by the Commission. To award compensation in a case such as this is not to make a health insurance law out of the act. To be compensable, the injury must arise "out of and in the course of the employment." This limitation will prevent a recovery on account of diseases generally.

Rehearing denied.