In re Hurle

• Decision Date: 28 February 1914
• Citation: 217 Mass. 223,104 N.E. 336
• Parties: In re HURLE; In re PLYMOUTH CORDAGE CO.; In re AMERICAN MUT. LIABILITY INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 223

104 N.E. 336

In re HURLE; In re PLYMOUTH CORDAGE CO.; In re AMERICAN MUT. LIABILITY INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1914.

Appeal from Superior Court, Suffolk County.

Claim under the Workmen's Compensation Act by William Hurle, employé, against the Plymouth Cordage Company, employer, and American Mutual Liability Insurance Company, insurer. From a decree of the Superior Court, made on the findings and decisions of the Industrial Accident Board ordering the insurer to pay certain amounts to the employé, the insurer appeals. Affirmed.

Sawyer, Hardy & Stone, of Boston (Edward C. Stone, of Boston, of counsel), for appellant.

Edwin A. Howes, Jr., of Boston, for appellee.

RUGG, C. J.

This is a case under the Workmen's Compensation Act. The facts as found by the Industrial Accident Board are that the employé is totally incapacitated for work by personal injury which arose out of and in the course of his employment, and which caused total loss of vision in both eyes, and which resulted from an acute attack of optic neuritis induced by poisonous coal tar gases. His work was about furnaces for producing gas by the burning of coal, in the top of which were several holes through which after opening a cover he could watch the fire. It was his duty to see that the furnaces were supplied with coal and burning evenly and to prevent incandescent spots caused by the burning by forced draft. It was necessary for him to open one or another of these holes about 70 times a day, and whenever these holes were opened poisonous gases were given forth. The inhalation of these caused his blindness.

The question to be decided is whether this was a ‘personal injury arising out of and in the course of his employment’ within the meaning of those words in St. 1911, c. 751, p. 2, § 1. Unquestionably it arose out of and in the course of his employment. The only point of difficulty is whether it is a ‘personal injury.’

The words ‘personal injury’ have been given in many connections a comprehensive definition. They are broad enough to includethe husband's right to recover for damage sustained by bodily harm to his wife, the alienation of a husband's affections, the seduction of one's daughter and other kindred tortious acts. Mulvey v. Boston, 197 Mass. 178, 83 N. E. 402,14 Ann. Cas. 349, and cases there cited; Riddle v. MacFadden, 201 N. Y. 215, 94 N. E. 644;New York, Philadelphia & Norfolk R. R. v. Waldron, 116 Md. 441, 82 Atl. 709,39 L. R. A. (N. S.) 502;Jefferson Fertilizer Co. v. Rich, 182 Ala. 633, 62 South. 40;McDonald v. Brown, 23 R. I. 546, 51 Atl. 213,58 L. R. A. 768, 91 Am. St. Rep. 659;Tomlin v. Hildreth, 65 N. J. Law, 440, 445, 47 Atl. 649;Sharkey v. Skilton, 83 Conn. 503, 510, 77 Atl. 950. They are not confined to the instances where the wrong can be described technically as trespass to the person vi et armis. The statement in Com. v. Mosby, 163 Mass. 291, 294, 39 N. E. 1030, that a ‘threat to injure the person of another naturally means a threat to use actual physical force,’ is not at variance with this idea. There were special reasons why the word ‘injury’ was given a constricted meaning in 28 Opinions of the Attorneys General of the United States, 254. It has been interpreted broadly in policies of accident insurance. Freeman v. Mercantile Mutual Accident Ass'n, 156 Mass. 351, 30 N. E. 1013,17 L. R. A. 753.

[1] At common law the incurring of a disease or harm to health is such a personal wrong as to warrant a recovery if the other elements of liability for tort are present. Hunt v. Lowell Gas Light Co., 8 Allen, 169, 85 Am. Dec. 697;Allen v. Boston, 159 Mass. 324, 34 N. E. 519,38 Am. St. Rep. 423;Larson v. Boston Elev. Ry., 212 Mass. 267, 98 N. E. 1048;Deisenrieter v. Kraus-Merkel Malting Co., 92 Wis. 164, 66 N. W. 112;Wagner v. H. W. Jaynes Chemical Co., 147 Pa. 475, 23 Atl. 772,30 Am. St. Rep. 745. See also Gossett v. Southern Ry., 115 Tenn. 376, 89 S. W. 737,1 L. R. A. (N. S.) 97, 112 Am. St. Rep. 846. Damages of this sort have been held not recoverable under the mill acts, although an independent action would lie if a nuisance were created. Eames v. N. E. Worsted Co., 11 Metc. 570;Fuller v. Chicopee Mfg. Co., 16 Gray, 46. See also Wellington v. Boston & Maine R. R., 158 Mass. 185, 189, 33 N. E. 393. The preponderance in recent years of actions grounded upon some physical violence has tended to emphasize the aspect of injury which depends upon visual contact or direct lesion. But that is by no means the exclusive signification of the word either in common speech or in legal use.

The English Workmen's Compensation Act affords compensation only where the workman receives ‘personal injury by accident.’ It adds to the personal injury alone required by our act the element of accident. Yet it has been held frequently that disease induced by accidental means was ground for recovery; as for example, a rupture resulting from over exertion, Fenton v. Thorby & Co., Ltd., [1903] A. C. 443; infection of anthrax from a bacillus from wool which was being sorted, Brintons, Ltd., v. Turney, [1905] A. C. 230; heat from a furnace, Ismay Imrie & Co. v. Williamson, [1908] A. C. 437; sunstroke, Morgan v. S. S. Zenaida, 25 L. T. R. 446, s. c. 2 W. C. C. 19; pneumonia, induced by inhalation of gas, Kelly v. Anchenlea Coal Co., Ltd., [1911] S. C. 864, s. c. 4 B. W. C. C. 417. See also Brown v. George Kent, Ltd., [1913] 3 K. B. 624, and Alloa Coal Co., Ltd., v. Drylie, 6 B. W. C. C. 398, s. c. 50 S. L. R. 350. We lay these cases on one side, however, because it is plain from the third schedule of 6 Edward 7, c. 58, that certain occupational diseases were intended to be included within the English act.

Hood & Sons v. Maryland Casualty Co., 206 Mass. 223, 92 N. E. 329,30 L. R. A. (N. S.) 1192, 138 Am. St. Rep. 379, goes far toward deciding the case at bar. That was an action by an employer of labor against an insurer who had contracted to indemnify against damages sustained by the employer by reason of liability to its employés for ‘bodily injuries accidentally suffered’ by them in their employment. The employer had been obliged to respond in damages to one Barry, an employé, who had become infected by glanders while cleaning a stable. It was said in the opinion, at page 225 of 206 Mass., and page 330 of 92 N. E. (30 L. R. A. [N. S.] 1192, 138 Am. St. Rep. 379): ‘It is plain that Barry suffered bodily injury in consequence of becoming infected with glanders; as much so as if he had had a leg or an arm broken by a kick from a vicious horse. Indeed, it is possible that the bodily injury caused by glanders was greater and more lasting than that caused by a broken leg or arm would have been.’ That case related to the kind of bodily injuries which arise from the relation of master and servant. It was decided about one year before the enactment of our Workmen's Compensation Act. It relates to the same...