PER CURIAM.

Upon consideration of appellant's motion for rehearing the original opinion is withdrawn and the following substituted:

BRICE, Chief Justice.

Appellant Stevenson, a truck driver employed by appellee company, a road building contractor, became ill after driving and operating for one day one of the heavy trucks of the company, claiming that he inhaled excessive dust from the road work and fumes and gases from the motor exhaust, and that he quickly developed pneumonia by which he was incapacitated for some three months, and from which he would probably continue to be unable to work for some time in the future. He asks for workmen's compensation, as provided by the Workmen's Compensation Act, Chapter 156, N.M.S.A., 1929, and amendments.

Compensation was refused upon the ground that no accident was suffered by appellant which would, under the act, be compensable. The lower court found for appellees, the companies (the contractor and his surety), and appellant appeals.

The following are the findings and conclusions of the trial court having reference to the injury and the circumstances leading thereto:

"That on March 19, 1938, Lee Moor Contracting Company as employer of C.R. Stevenson, furnished to be driven by said C.R. Stevenson a large heavy duty International Truck of ten ton or more capacity for hauling excavated matter, * * *.

"That said truck was an old truck and so worn from long usage that about four and one-half gallons of oil were used in it in seven hours of running on said day, said amount of oil, on account of the worn condition of the motor of said truck, being necessary for the operation of the said truck.

"That the exhaust pipe discharged gases, fumes and smoke from the motor at a point under the truck about even with the seat-back of the driver's seat, and from the exhaust manifold where a gasket should have retained the exhaust fumes but there being no exhaust gasket the fumes escaped into the air on the right side of the motor. Smoke and fumes also escaped from the breather wherein oil is poured into the motor and from the coupling connecting the exhaust manifold and the exhaust pipe on the right side of the motor.

"That the said motor created and discharged an excessive amount of smoke and gases as compared with the other trucks on the job. That the fumes and gases thrown off by the said motor were inhaled by the plaintiff.

"That the inhalation of the smoke and gases from the motor irritated the respiratory tract of the plaintiff.

"That the inhalation of the smoke and gases thrown off by the motor reduced the resistance of C.R. Stevenson to such an extent that the pneumo-cocci germs were enabled to multiply and become active in the body of C.R. Stevenson, resulting in pneumonia.

"That the inhalation by C.R. Stevenson of smoke and gases emitted by the truck were an exciting cause of the development of pneumonia which followed.

"That the inhalation by C.R. Stevenson of the smoke and gases emitted by the truck precipitated the activity of pneumo-cocci germs which resulted in pneumonia.

"On March 19, 1938, plaintiff, C.R. Stevenson, was operating a truck known as Truck No. 54 of the Lee Moor Contracting Company; Truck No. 54 for a period of approximately 30 days prior to this time had been discharging a larger amount of fumes and smoke than other trucks on the same job. All trucks of the character of Truck No. 54 give off fumes and smoke when used in heavy duty. On said date, a large amount of fumes and smoke was given off by said truck, but there was no unusual or excessive amount of fumes and smoke given off by said truck on that date, the amount of fumes and smoke given off by the truck being substantially the same as the amount given off for a period of approximately thirty days. There was no accident and no unusual or unexpected occurrence on that date.

"On or about the 20th day of March, 1938, the plaintiff, C.R. Stevenson suffered an attack of pneumonia which is a disease caused by a specific germ. Any disability suffered by the plaintiff was due to disease and not to an industrial accident."

We reduce these findings, by eliminating repetition and non-essentials, to the following material statements of the facts:

That on March 19, 1938, the employer (appellee Lee Moor Contracting Company, hereinafter called "employer") furnished the employee (appellant) an old heavy-duty truck to be driven in excavation work in the course of his employment, so worn from long usage that it required four and a half gallons of oil for its operation for a day of seven hours.

All trucks of the type of said truck give off some gases and fumes when used in heavy duty; but said truck discharged an excessive amount of gases compared with other trucks on the job. The fumes and gases not only escaped through the exhaust pipe, but from the exhaust manifold, because of the lack of a gasket that was required to prevent it; also from the breather, and the coupling connecting the exhaust manifold.

The appellant inhaled gases emitted from the truck which irritated his respiratory tract and reduced his resistance to such an extent that the pneumococci germs present were enabled to multiply and become active, resulting in pneumonia. "That the inhalation by C.R. Stevenson of the smoke and gases emitted by the truck precipitated the activity of pneumococci germs which resulted in pneumonia." (Emphasis ours.)

The findings of the court, when reduced to the smallest compass, are that the appellant was furnished by his employer with an old, defective truck that emitted excessive gases and fumes (more than any other on the job), which he breathed while operating the truck, the effect of which was to precipitate "the activity of pneumococci, which resulted in pneumonia."

The trial court made no separate conclusions of law. In two findings requested by appellee it is stated "There was no * * * accident on that date," and "any disability suffered by the plaintiff was due to a disease caused by specific germs, not an industrial accident." It is plain that these are conclusions of law deduced from the specific facts theretofore found. While a conclusion that there was no accident under certain findings may be a mixed conclusion of fact and law, in this case it is clearly a conclusion of law and calls for the construction of the meaning of the word "accident" as used in the Workmen's Compensation Act. Birdwell v. Three Forks Portland Cement Co., 98 Mont. 483, 40 P.2d 43.

It was the view of the trial court that, as pneumonia is a disease caused by a "specific germ," under the terms of the Workmen's Compensation Act, an employee is not entitled to compensation, no matter what caused or precipitated the disease. Of course, pneumonia is a germ disease, and any disability plaintiff suffered was due to the disease; but it does not follow, as the trial court concluded, that appellant's injury was not "by accident," if the proximate cause of the disease, and therefore the injury, was an accident.

The appellant's attack of pneumonia was not an occupational disease; that is, one gradually contracted in the ordinary course of employment, and due wholly to causes and conditions that are normal and constantly present and known from experience to be incidental and characteristic of the particular occupation. Cannella v. Gulf Refin. Co. of Louisiana, La. App., 154 So. 406; Associated Indemnity Corp. v. State Industrial Accident Comm., 124 Cal.App. 378, 12 P.2d 1075; Birmingham Elec. Co. v. Meacham, 234 Ala. 506, 175 So. 322; Industrial Comm. of Colorado v. Ule, 97 Colo. 253, 48 P.2d 803. The facts found support the conclusion that it was not an occupational disease.

Our Workmen's Compensation statute was enacted in 1917 and re-enacted with amendments as Ch. 92, L. 1937. Our references and citations will be to the latter act. It is provided in Sec. 1 that under conditions described therein the employer will become liable to a workman "injured by accident arising out of and in the course of his employment." This provision was in the original act and retained in the amendment. Sec. 4 of the 1937 act is new, and was copied verbatim from, and is identical with, Sec. 15 of the Workmen's Compensation Act of Colorado, enacted in 1919 (Sec. 294, Ch. 97, Colo. Sts.Ann. 1935) and is as follows:

"The right to the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:

"(a) Where, at the time of the accident, both employer and employee are subject to the provisions of this act; and where the employer has complied with the provisions thereof regarding insurance.

"(b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment.

"(c) Where the injury or death is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted." (Emphasis ours.)

Sec. 3 refers to claims "for a personal injury sustained by an employee while engaged in the line of his duty"; Sec. 6( l) refers to "injuries sustained in extra-hazardous occupations or pursuit" which includes "death resulting from injury, and injuries to workmen, as a result of their employment * * * "; Sec. 7 requires the workman to give written notice "of such accident and of such injury * * *;" Sec. 8 employs the phrase "injury from accident"; Sec. 12 uses the phrase "injured by accident"; Sec. 14 makes it the duty of certain employers of labor to report all compensable "accidental injuries" to the Labor Commissioner.

From the above it will be noticed that "injury by accident," "injury accidentally sustained," "injury proximately caused by accident," "injury sustained * * * while engaged in the line of * * * duty," "injury sustained in extra hazardous occupations," "injury from accident," and "accidental injury" are indiscriminately used to indicate injuries that are compensable. But Sec. 4 of the act, hereinbefore quoted in full, states the specific conditions upon which the workman is entitled to compensation, among which is the condition that the injury or death must be "proximately caused by accident," etc.

The only question is whether the court erred in holding that under his findings of fact appellant's injury was not "proximately caused by accident," as the phrase is used in Subsec. (c) of Sec. 4 of the 1937 act, supra. The proper construction of the phrase "injury * * * proximately caused by accident" will solve that question.

We are committed to the doctrine that our Workmen's Compensation Act should be construed liberally in favor of claimants. Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903; Baltimore P.S.B. Co. v. Norton, 284 U.S. 408, 52 S.Ct. 187, 76 L.Ed. 366. In view of the settled policy of this court to so construe the Workmen's Compensation Act, the phrase should be liberally construed in favor of the workman. 71 C.J. Sec. 325, p. 560, and cases cited under note 71.

"Within the general rule that workmen's compensation acts are to be accorded a broad and liberal construction in order to effectuate their evident intent and purpose, where such acts provide compensation only for injury by accident the word 'accident' should be liberally construed; the words 'accidental injury' should likewise be liberally construed." 71 C.J. p. 571. McNeil v. Panhandle Lbr. Co., 34 Idaho 773, 203 P. 1068; Rue v. Eagle, etc., Co., 225 Mo. App. 408, 38 S.W.2d 487.

It has been said regarding the word "accident": "No legal definition has been given or can be given which is both exact and comprehensive as applied to all circumstances." Peru Plow Wheel Co. v. Industrial Comm., 311 Ill. 216, 142 N.E. 546, 548; also that the word "accident" is "susceptible of being given such scope that one would hardly venture to define its bounddaries"; that it has been discussed and defined more than any word in the English language; Bystrom Bros. v. Jacobson, 162 Wis. 180, 155 N.W. 919, 920, L.R.A. 1916D, 966. We call attention to the many definitions of the word "accident" in 1 C.J.S., beginning at p. 426, and in the cumulative supplement to that volume, and cases cited; also see the definitions in Words and Phrases, Perm.Ed., vol. 1, p. 250 et seq.

It is asserted that this phrase, "injury by accident," was correctly construed by the Supreme Court of Arizona in Pierce et al. v. Phelps Dodge Corporation, 42 Ariz. 436, 26 P.2d 1017, 1021, in which it was held that the word "accident" referred to the cause of the injury and not the injury itself. That court said:

"We conclude that on reason, notwithstanding there are many authorities to the contrary, in the phrase 'injured * * * by accident' as found in our Compensation Act, the word 'accident' refers to the cause of the injury and not to the injury itself.

"Following this rule, in order that an employee be entitled to compensation there must be a result, an injury or damage, which is caused by 'an event that takes place without one's foresight or expectation; an undesigned, sudden and unexpected event.'"

We are provided with the following guide to assist us in the construction of such phrases as "injury by accident," as it is used in our Workmen's Compensation Act:

"In the construction of statutes, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute:

"First. Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such meaning." Sec. 139-102, N.M.Sts. 1929.

Some years before any of the American states had adopted the English Workmen's Compensation Act or its substance, the phrase in question had "acquired a peculiar and appropriate meaning in law" in England. The English act, like that of New Mexico, contained convertible terms, all referring to compensable injuries. The very question raised here was decided in Fenton v. Thorley, [1903] A.C. 443, by the House of Lords, fourteen years before the enactment of New Mexico's workmen's compensation statutes. We quote from Lord Macnaghten's opinion, as follows: "The 1st section of the Act, sub-s. 1, declares that 'if in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman,' his employers shall be liable to pay compensation. Now the expression 'injury by accident' seems to me to be a compound expression. The words 'by accident' are, I think introduced parenthetically as it were to qualify the word 'injury' confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design. Then comes the question, Do the words 'arising out of and in the course of the employment' qualify the word 'accident,' or the word 'injury,' or the compound expression 'injury by accident'? I rather think the latter view is the correct one. If it were a question whether the qualifying words apply to 'injury' or to 'accident,' there would, I think be some difficulty in arriving at a conclusion. I find in s. 4 the expression 'accident arising out of and in the course of their employment.' In s. 9 I find the words 'personal injury arising out of and in the course of his employment,' while in s. 1, sub-s. 2(b), the qualifying words seem to be applied to the compound expression 'injury to a workman by accident.' The truth is that in the Act, which does not seem to have had the benefit of careful revision, 'accident' and 'injury' — that is, injury by accident — appear to be used as convertible terms; for instance, in s. 2 'notice of the accident' has to be given, and that notice is referred to immediately afterwards as 'notice in respect of an injury under the Act.' I come, therefore, to the conclusion that the expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed."

The question in Fenton v. Thorley was whether a workman was entitled to compensation who, in the performance of his labors in the usual and customary manner, was ruptured by straining to turn a wheel that was stuck.

The doctrine of that case was followed and extended by the House of Lords in Clover-Clayton Co. v. Hughes, [1910] A.C. 242. The workman was suffering from an aneurism in such an advanced state as that it might burst from exertion at any time. While tightening a nut with a spanner the strain, which was not unusual in his work, ruptured the aneurism, from which he died. It was held that the workman was "injured by accident."

We quote from Lord Macnaghten's opinion, as follows: "My Lords, in this case your Lordships have heard a very able and ingenious argument upon the construction of the 1st section of the workmen's compensation acts. I need hardly say that it is not from any want of respect to the learned counsel who advanced it that I pass that argument by. It has been disposed of already. It was advanced and rejected in the case of Fenton v. Thorley, [1903] A.C. 443. There the court of appeal had held that if a man meets with a mishap in doing the very thing he means to do the occurrence cannot be called an accident. There must be, it was said, an accident and an injury; you are not to confuse the injury with the accident. Your Lordships' judgment, however, swept away these niceties of subtle disquisition and the endless perplexities of causation. It was held that 'injury by accident' meant nothing more than 'accidental injury' or 'accident,' as the word is popularly used * * *." (Emphasis ours.)

The case of Glasgow Coal Co., Ltd. v. Welsh, [1916] 2 A.C. 1, Ann.Cas. 1916E, 161, decided by the House of Lords just a year before the enactment of our first workmen's compensation law, refers with approval to the cases of Fenton v. Thorley and Clover, Clayton v. Hughes. The facts were these:

The respondent, an employee of a colliery, was directed to bale water from a pit which had accumulated because the pump used to remove it had broken down. In performing this work it was necessary to stand in water up to his chest for eight hours. As a result of the "extreme and exceptional exposure" to which he was subjected, he suffered from subacute rheumatism. The question was whether the disease was an injury by accident. Separate opinions were rendered by each of the Lords sitting, from some of which we quote:

Viscount Haldane: "* * * Indeed, it is plain that he went into the water to bale it out of the pit under directions from his employer, and he does not appear to have entertained such apprehension of danger to himself as to induce him to disobey those directions. Had he died suddenly while so exposed, say of heart disease caused by the shock, there can be no doubt that this would have given a title to his dependants to claim on the footing of injury from accident. I am unable to see why a claim in respect of a less serious mishap should be excluded by the circumstance that the miscalculated action of entering the water took time to produce its consequences. This miscalculated action of entering the water in the present case must be taken to have constituted a definite event which culminated in rheumatic affection. It was the miscalculation which imported into that event the character of an accident within the meaning of the Act."

Lord Kinnear (after stating that the breaking of the pump, if an accident, was too remote upon which to base compensation):

"* * * The finding which I take to be conclusive is 'that the rheumatism from which the respondent suffered was caused by the extreme and exceptional exposure to cold and damp to which he was subjected on the occasion in question.' * * * On the particular occasion described the man exposed himself, in performance of his duty to his employer, to an extreme and exceptional degree of cold, and damp, the character and effects of which he had miscalculated or through inadvertence had failed to foresee. If the sheriff-substitute thought that this was an untoward and unlooked for mishap which was not expected nor designed, I see no ground in law for disturbing his decision.

"The learned counsel for the appellants argued that in order to satisfy the Act there must be some distinct event or occurrence which taken by itself can be recognized as an accident, and then that the injury must be shown to have followed as a consequence from that specific event. But this is just the argument that was rejected in Fenton v. Thorley. It is unnecessary to say more; but I venture to add that the argument seems to me to rest upon a misreading of the statute, which can only have arisen from a failure to give any exact attention to the actual words. The statute does not speak of an accident as a separate and distinct thing to be considered apart from its consequences, but the words 'by accident' are introduced, as Lord Macnaghten says, parenthetically to qualify the word 'injury.' The question, therefore, is whether the injury can properly and according to the ordinary use of language, be called accidental. * * * It is said that a disease is not an accident and is therefore excluded from the scope of the enactment. This seems to be suggested by an ambiguity in the use of the word 'accident,' which may either denote a cause or an effect; and the argument, assuming the latter meaning to be intended, is that no injury can be called accidental unless it be a visible hurt to the body, apparently caused by some external force. But there is no support for this notion to be found in the statute."

Lord Shaw of Dunfermline:

"* * * The sheriff finds 'that the rheumatism was caused by the extreme and exceptional exposure to cold and damp to which he was subjected on the occasion in question.'

"I do not see how it can be argued that this finding was not one of fact; nor do I see how, that being so, it did not justify the finding in law that the words of the statute were affirmed, namely, that the appellant sustained 'an injury by accident arising out of and in the course of his employment.'

"Injury by accident is a composite expression. It includes a case like the present, namely, the contraction of disease arising from extreme and exceptional exposure."

Lord Parmoor: "* * * The immersion in water, under conditions of extreme and exceptional exposure to cold and damp, may be regarded either as an unforseen, or an untoward, event, and in either alternative as an accident. This being so, it was within the competency of the sheriff-substitute to find in favour of the respondent. The miscalculation of conditions, or carelessness as to conditions, is a common cause of accident, as in the case of a person being accidentally drowned through miscalculation of the depth of the water into which he has entered, or through carelessness in making no calculation as to its depth. There is no error in law, and this ends the case."

Lord Wrenburg:

"* * * If a man undresses on the beach in order to enjoy a bathe in the sea, goes voluntarily into the water, and is drowned by reason of the existence of a strong current, no one could deny that his death was accidental, that his death was by accident. In this case his going into the water was not accidental; the existence of the current was not accidental; but there was a factor which caused his death to be 'by accident,' and that was that unintentionally — perhaps by ignorance — he miscalculated the forces with which he had to do; he did not know of the current, or he thought that he was a strong enough swimmer to cope with it. He was wrong. The mishap which resulted from his bathing in this dangerous place was accidental. He had no intention or thought of going to his death. No other person intervened to conduce to the result. The sufferer's death was an unexpected event, an untoward result; it was by accident. * * *

"* * * 'That the rheumatism from which the respondent suffered was caused by the extreme and exceptional exposure to cold and damp, to which he was subjected on the occasion in question.' Suppose the events had been that under directions given by the employer the man had gone into the water, and it had proved unexpectedly to be eight feet deep, and that he had been drowned. No one, I think, would dispute that his death would have been by accident. The accident would have arisen from miscalculation or ignorance as to the depth of the water, by reason of which the man was exposed to danger and was drowned. Is there any difference of principle between the case in which the water went over his head and caused death and the case in which the water extended as high as his chest and caused rheumatism? * * * Here the sequence of the language in the case after the finding which I have quoted shows that the arbitrator's finding is that the rheumatism was an injury caused by the extreme and exceptional exposure to cold and damp; in other words, that the extreme and exceptional exposure to cold and damp was that which caused the personal injury to be by accident. I take this to mean that neither employer nor man anticipated that the cold and damp would have been so extreme as to cause the illness; that the exposure of the man to it was an untoward event; that the result was unexpected; that the outcome was a mishap; and that consequently the injury was by accident."

To bring the English cases to date, we call attention to Fife Coal Co. Ltd. v. Young, decided by the House of Lords, March 14, 1940, and published in the Times Law Reports of March 29, 1940. The facts were as follows: A workman was employed in building pillars to support the roof of the underground workings of a colliery. The height of his place of work was from two and a half to three feet. The crouching position in which he labored daily for more than a month caused repeated pressure on the outside of the right knee over the peroneal nerve, resulting in a condition known as "dropped foot," a paralysis of the muscles of the leg that deprives one of the power to raise the front part of the foot. The workman, it was held, was injured by accident.

The case of Walker v. Bairds and Dallmellington, Ltd. (1935 S.C. (H.L.) 28, at p. 30) was cited with approval in the Fife Coal Company case. The Lord Chancellor said: "The workman, a colliery foreman, had died from bronchial pneumonia caused by a chill contracted through exposure to cold and water while cleaning a sump. His widow was held entitled to an award on the ground, as Lord Tomlin said, that the disease — namely, the pneumonia — resulted from the sudden and unexpected onset of a chill contracted in conditions which were normal in carrying out his job in the accustomed manner and had been frequently experienced by him on previous occasions without ill results. The onset of the chill was 'an untoward event' and not 'expected or designed.'"

An article by Prof. Francis H. Bohlen entitled "The Drafting of Workmen's Compensation Acts," 25 Harvard Law Review 328, often quoted by the courts, sums up the holding of the British courts in workmen's compensation cases as follows:

"Since the case of Fenton v. Thorley, nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. It is no longer required that the causes external to the plaintiff himself, which contribute to bring about his injury, shall be in any way unusual; it is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected and so if received on a single occasion occurs 'by accident' is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing. * * * The element of unexpectedness, inherent in the word 'accident' is sufficiently supplied either if the incident itself is unusual, the act or conditions encountered abnormal, or if, though the act is usual and the conditions normal, it causes a harm unforeseen by him who suffers it."

The doctrine of Fenton v. Thorley has been generally referred to with approval by the courts of many American states. The New Mexico statute (Sec. 4 of Ch. 92, N.M.L. 1937) had been so construed a number of times by the Supreme Court of Colorado prior to its adoption by New Mexico. On the identical question, in Carroll v. Industrial Comm., 69 Colo. 473, 195 P. 1097, 1098, 19 A.L.R. 107, the Colorado court said: "Our statute used the expressions 'personal injury or death accidentally sustained' and 'injury proximately caused by accident' in providing for what injuries or deaths compensation shall be allowed. By the term 'injury' is meant, not only an injury the means or cause of which is an accident, but also an injury which is itself an accident. The expressions above quoted are the equivalent of 'injury by accident,' which is frequently used in the decisions. The word 'by' may mean 'through the means, act, or instrumentality of.' 9 C.J. 1109. Therefore 'injury by accident' and 'injury caused by accident' are terms or expressions which can be used interchangeably."

The court of Errors and Appeals of New Jersey, in Hentz v. Janssen Dairy Corp., 122 N.J.L. 494, 6 A.2d 409, in construing the same phrase followed the English decisions, citing recent decisions of the House of Lords and other English cases.

While the fact that the phrase had been judically defined by the English courts long before the statute was adopted by New Mexico (Sec. 139-102 N.M.Sts. 1929), as well as the fact that our statute was an adaptation of the English Act to our conditions (Palmer v. Farmington, 25 N.M. 145, 179 P. 227), would justify our following their construction; yet being satisfied that such construction is grammatically correct; and as it is more in accord with the spirit of the Workmen's Compensation Acts, it should be followed by us.

Such is the weight of authority in this country. Fidelity Cas. Co. v. Industrial Comm., 177 Cal. 614, 171 P. 429, L.R.A. 1918F, 856; Columbine Laundry Co. v. Industrial Comm., 73 Colo. 397, 215 P. 870; Industrial Comm. v. Ule, 97 Colo. 253, 48 P.2d 803; Tintic Milling Co. v. Industrial Comm., 60 Utah 14, 206 P. 278, 23 A.L.R. 325; Cherdron Const. Co. v. Simpkins, 61 Utah 493, 214 P. 593; Continental Baking Co. v. Industrial Comm., 92 Utah 438, 69 P.2d 268; Young v. Salt Lake City, 97 Utah 123, 90 P.2d 174; Andreason v. Industrial Comm., 98 Utah 551, 100 P.2d 202; Hentz v. Janssen Dairy Corp., supra; Brown v. Lumbermen's, etc., Co., 49 Ga. App. 99, 174 S.E. 359; McDougal's Case, 127 Me. 491, 144 A. 446; Patrick v. Ham Co., 119 Me. 510, 111 A. 912, 13 A.L.R. 427; Layton v. Hammond-Brown-Jennings Co., 190 S.C. 425, 3 S.E.2d 492; King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 53 A.L.R. 1086; In re Case of Scrogham, 52 Wyo. 232, 73 P.2d 300; Gilliland v. Ash Grove, etc., Co., 104 Kan. 771, 180 P. 793; Barker v. Shell Pet. Corp., 132 Kan. 776, 297 P. 418; Manning v. Pomerene, 101 Neb. 127, 162 N.W. 492.

Much reliance is placed upon that provision of the statute which requires notice to be given by the injured employee to the employer, which states that he "shall give notice in writing of such accident and of such injury," etc. The argument is that there must be an accident separate from the injury or else there would be no meaning to this statute. This is not the compensatory statute, in controversy in this case, and it is not material except as it may throw light upon the meaning of Sec. 4 of the Workmen's Compensation Act, supra.

The two statutes are consistent; for in every case of accidental injury there is both an accident and an injury. In the majority of cases the accident and injury are separate, such as injuries resulting from the breaking of machinery, explosions, etc. But there are many cases in which the accident and injury constitute one happening, such as hernia, blood clots and hemorrhages, resulting from exertions or strain; sprained ankle, overheating, sunstroke, breathing dust, freezing, etc. It is quite evident that in giving notice of the happening, both the accident and the injury are included. In other sections of the act, as hereinbefore noted, a compensable injury is referred to as "injury accidentally sustained," "injury sustained * * * while engaged in the line of * * * duty," "injur[y] sustained in extra-hazardous occupations," "accidental injury," etc., each of which indicates that no distinction between injuries from an agency separate from the accident and an accidental injury was intended.

The states of Georgia, Maine, South Carolina, Tennessee, Wisconsin, Wyoming and Utah have compensatory statutes substantially like that of New Mexico, and a notice statute identical in meaning with that now being considered. The courts of each of these states have construed the compensatory statute exactly as here, and no significance was given to the fact that the notice statute required a report of the accident and of the injury. Brown v. Lumbermen's, etc., Co., supra; McDougal's Case, supra; Patrick v. Ham Co., supra; Layton v. Hammond-Brown-Jennings Co., supra; King v. Buckeye Cotton Oil Co., supra; In re Case of Scrogham, supra.

We are satisfied with the conclusions of these courts, and hold that "injury by accident" means nothing more than an accidental injury, or an accident, as the word is ordinarily used. It denotes "an unlooked for mishap, or an untoward event which is not expected or designed." Fenton v. Thorley, supra.

That the injury to appellant occurred in the course of his employment is not questioned. The only question is whether, consistently with our construction of the compensation statute, such injury was "proximately caused by accident," or was accidental.

It is asserted that appellant's injury was not accidental, in that it could not be traced to a definite time, place, and cause. The injury to appellant occurred upon a day certain, and was the proximate result of breathing poisonous fumes and gases in excessive quantities for seven specific hours on that particular day, while working in the course of his employment. It is not necessary that the injury should result momentarily, to be accidental. It may be the result of hours, even a day, or longer, of breathing or inhaling gases, depending upon the facts of the case. Columbine Laundry Co. v. Industrial Comm., supra; Industrial Comm. v. Ule, supra; Sullivan Min. Co. v. Aschenbach, 9 Cir., 33 F.2d 1; Riley v. City of Boise, 54 Idaho 335, 31 P.2d 968; Ross v. Ross, 184 Okla. 626, 89 P.2d 338; Moore v. Rumford Printing Co., 88 N.H. 134, 185 A. 165; Zwiercan v. International Shoe Co., 87 N.H. 196, 176 A. 286. The time, place and cause were definite and certain.

It is asserted that appellant's injury was not an accident, because he inhaled the fumes and gases that caused him to have pneumonia, while performing labor in the course of his employment, and there was no "unlooked for event which was not expected or designed", as an accident is usually defined.

When an injury results from some fortuitous happening, such as the breaking of machinery, explosions, collisions, etc., the accidental nature has never been questioned. But in cases where there was no accident separate and distinct from the injury that caused it, the courts are not in accord. Such are strains causing back injuries, ruptures, blood clots, hemorrhages, etc.; ordinarily the unintended result of an intentional act of the person injured. These injuries are also held compensable by all courts so far as we are advised, when received in the course of the workman's employment, since Fenton v. Thorley.

But the courts are not in harmony on the question of whether injuries suffered by workmen to which they did not contribute by any specific act and which happened while they were performing their usual and customary duties under usual, ordinary and expected conditions and circumstances, are injuries "by accident." Such are injuries or death caused by lightning, exposure to the elements and changing temperatures; sunstroke; breathing fumes, gases, dust, etc.; and from diseases resulting therefrom. The majority of the courts that have decided the question have applied to it the doctrine of Fenton v. Thorley, and held such injuries are by accident. To the writer of this opinion it appears that no other conclusion could consistently be reached, since we accept the construction of the statute as enunciated in that case.

The Supreme Court of Colorado, whence came our statute, has held that the statute contemplates that the injury, not the cause of it, should be unexpected. It was stated in Industrial Comm. v. Ule, supra [ 97 Colo. 253, 48 P.2d 804], regarding a workman who was disabled from the fumes of a substance called "dope" which he applied to the body and wings of airplanes by a spray gun:

"The exposures to which Ule was subjected on May 21, 22, and 23 were unusual; the number of spray guns used on those days was double the number previously used, and the emission of 'dope' spray correspondingly increased. It produced effects that were not intended, foreseen, or expected; hence it was an accident. * * *

"The fact that Ule had inhaled the 'dope' spray in smaller quantities on previous occasions and had felt the effect thereof does not make the injury caused by the unusual and excessive inhalation on May 21, 22, and 23 any the less an accident."

And In Carroll v. Industrial Comm., supra, it was held that a workman who inhaled dust from pitching hay, which brought on a heart attack that caused his death, suffered an accidental injury. The Colorado court quoted with approval 25 Harvard Law Review, 340, as follows: "'Since the case of Fenton v. Thorley, nothing more is required than that the harm that the plaintiff has sustained shall be unexpected. * * * It is enough that the causes, themselves known and usual, should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected, and so, if received on a single occasion, occurs "by accident," is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing.'"

Since we adopted the Colorado statute we should not lightly refuse to follow its construction by the Supreme Court of that state.

Under similar facts, the authorities generally uphold our conclusion, that the appellant suffered a compensable injury by accident. See the British and other cases above cited, and Tintic Milling Co. v. Industrial Comm., supra (latent tuberculosis aggravated by gases); Maryland Casualty Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867 (pneumonia resulting from the inhalation of dust); Maryland Cas. Co. v. Broadway, 5 Cir., 110 F.2d 357 (welder died of pneumonia caused by inhalation of sulphur dioxide gas escaping from pipes which he was welding); Waite v. Fisher Body Corp., 225 Mich. 161, 196 N.W. 189 (pneumonia resulting from a bruised toe, traced by the evidence to the injury); Birdwell v. Three Forks, etc., Co., 98 Mont. 483, 40 P.2d 43 (workman cleaning a kiln chute suffered a heat stroke caused by excessive heat); Johnson v. Industrial Comm., 63 Ohio App. 544, 27 N.E.2d 418 (the laborer subjected to excessive heat in a storage tank, resulting in pneumonia, from which he died); Senlock v. Philadelphia, etc., Co., 104 Pa. Super. 156, 158 A. 663, (death from pneumonia caused by extraordinary exposure in cold water); Anderson v. Industrial Comm., 116 Wn. 421, 199 P. 747 (claimant cut his foot with an axe. In going home he was exposed to excessive cold, from which he developed pneumonia and died); Bergstrom v. Industrial Comm., 286 Ill. 29, 121 N.E. 195; Robertson v. Industrial Comm., 114 Or. 394, 235 P. 684; Brown v. Watson, 7 B.W.C.C. 259; Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288 (a construction engineer, securing engineering data was required to wade in water, which resulted in pneumonia, from which he died); Walsh v. River Spinning Co., 41 R.I. 490, 103 A. 1025, 13 A.L.R. 956 (death from heat stroke caused by excessive heat in a boiler room); Lane v. Horn Hardart Baking Co., 261 Pa. 329, 104 A. 615, 13 A.L.R. 963 (heat prostration); Lacey v. Washburn Williams Co., 105 Pa. Super. 43, 160 A. 455 (workman employed in a refrigerator room for an hour resulting in pneumonia, from which he died); New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360 (coal miner injured from breathing carbon dioxide gas); Brown v. St. Joseph Lead Co., 60 Idaho 49, 87 P.2d 1000 (rock driller in a silica mine became sick with silicosis from breathing dust); Beaver v. Morrison-Knudsen Co., 55 Idaho 275, 41 P.2d 605 (miner injured by revival of latent tuberculosis, due to inhaling silica dust); Utilities Coal Co. v. Herr, 76 Ind. App. 312, 132 N.E. 262 (workman afflicted with chronic heart disease inhaled smoke in a mine, which proved fatal); Joliet v. Industrial Comm., 291 Ill. 555, 126 N.E. 618 (workman, an engineer, was overcome by heat and died of heat stroke while working in a heated room on a hot day); Gilliland v. Ash Grove, etc., Co., 104 Kan. 771, 180 P. 793 (workman breaking rock with a heavy sledge suffered a pulmonary hemorrhage and died); Cannella v. Gulf Refin. Co., La. App., 154 So. 406 (truck painter became suddenly ill from acute lead poisoning); Adler v. Interstate Power Co., 180 Minn. 192, 230 N.W. 486 (stoker in an engine room, subjected to an unusual amount of fumes from coal and coke, from which he died); Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601 (traveling salesman removed a flat tire from his automobile, in his garage, jacked up the car and started running the engine, and died from monoxide gas poisoning); Schulz v. Great A. P. Tea Co., 331 Mo. 616, 56 S.W.2d 126 (deceased was overcome by heat while performing labor for master); Dove v. Alpena Hide Leather Co., 198 Mich. 132, 164 N.W. 253 (employee breathed dust from handling hides in his usual labor, causing septic infection, resulting in death); McNeely v. Carolina Asbestos Co., 206 N.C. 568, 174 S.E. 509 (workman inhaled asbestos dust in performing his regular duties, resulting in pulmonary asbestosis); Dondeneau v. State Indus. Acc. Comm., 119 Or. 357, 249 P. 820, 50 A.L.R. 1129 (employee's eyes became inflamed from smoke in fighting a forest fire, which resulted in glaucoma); Tarr v. Hecla Coal Coke Co., 265 Pa. 519, 109 A. 224 (employee, assisting in putting out a fire, lost his life by asphyxiation); King v. Buckeye Cotton Oil Co., supra (fireman stricken by heat prostration, died of pneumonia); Barron v. Texas Employers' Ins. Ass'n, Tex.Com.App., 36 S.W.2d 464 (tuberculosis brought on by inhalation of hydrogen sulphide gas); Andreason v. Industrial Comm. supra (workman butchering animals contracted disease from contact with diseased meat); Hentz v. Janssen, etc., supra; Ciocca v. National Sugar Refin. Co., 124 N.J.L. 329, 12 A.2d 130; see annotations in 6 A.L.R. 1466; 23 A.L.R. 335; 90 A.L.R. 619, entitled "Injury from Fumes or Gas as Accident or Occupational Disease." Some of these decisions are from courts which hold that the word "accident" in the statute has reference to the cause of the injury, and not the injury itself.

The facts in King v. Buckeye Cotton Oil Co., supra, were in substance, that a fireman, while in the boiler room, was stricken by heat prostration and died in four days, of pneumonia. The room was well ventilated and the boilers in good condition. The court said [ 155 Tenn. 491, 296 S.W. 5, 53 A.L.R. 1086]: "We do not think, however, that heat exhaustion or heat prostration can be said to be a necessary incident or an expected result of employment as a fireman in a boiler room. * * * The fireman expected to become hot, but he did not expect to become overheated to the point of exhaustion or prostration. The difference may be one only of degree, but we see no reason why such a difference may not make the boundary between the expected or anticipated and the unexpected or fortuitous. Certainly it marked the boundary, in the case of the deceased workman, between safety and misfortune."

It was held that heat prostration, under the facts, was an injury by accident.

We do not decide whether appellant would have been entitled to compensation had his injury been sustained while performing his labor under the usual and ordinary conditions of his employment. On this question the courts are not in harmony.

But his injury occurred under most extraordinary conditions. The finding of the court that the truck in question discharged excessive fumes and gases, compared with other trucks on the job, the breathing of which caused pneumonia, was supported by the witnesses of appellant and appellees. The undisputed testimony in support of the extraordinary conditions under which appellant labored is to the effect that the truck "smoked all over"; that the fumes were so obnoxious that others would not stand near it. Truck drivers following appellant in loading were forced to wait until the smoke cleared away before moving their trucks into its place. The smoke came from the motor as well as the exhaust; it smoked more than any truck one of the witnesses had ever seen. The ordinary truck consumes from two to three quarts of oil a day but this one consumed (as the court found) four and a half gallons per day.

Appellee's mechanic foreman in charge of trucks testified:

"Q. As a matter of fact wasn't that truck more or less a joke the way it smoked? Wasn't there a lot of wisecracks made about that truck? A. I will admit it was smoking more than the rest of them. It was an older model. No argument to that.

"Q. Was there any other truck that threw out anywhere near the amount of smoke? A. I would say some smoked as much as fifty per cent or better of what it did.

* * * * * *

"Q. Did you ever notice smoke coming from the motor straight up where the driver would sit? A. I know that that truck smoked in excess of other trucks; more than the other trucks did, * * *."

It is common knowledge that the breathing of fumes and gases by truck drivers performing such labor does not ordinarily cause pneumonia. We have heard of no similar case. That such fumes are deadly poison we know, but under ordinary conditions they are not dangerous when the truck is operated in the open.

The effect of the findings of the court is that appellant was exposed to extraordinary hazards, greater than those of the community generally, who are engaged in truck driving, and greater than that of any other workman engaged in truck driving on the same job, and greater than ordinarily incident to the labor in which he was engaged.

Under such state of facts the courts generally agree that the injury sustained is by accident, and compensable under Workmen's Compensation Acts. Such is the holding of the English cases (see quotations from Glasgow Coal Co., Ltd. v. Welsh, supra), and that of the American courts where the question has been decided.

The question in Barker et al. v. Narragansett, etc., Ass'n, R.I., 16 A.2d 495, 498; Id., R.I., 17 A.2d 23, was whether a workman who died of acute myocarditis caused by excessive heat and overexertion was injured by accident. The conditions under which he worked were not common to his fellow employees, or to the community in general. The court said: "In the peculiar circumstances of the instant case, the controlling consideration is whether excessive heat, combined with overexertion, due to conditions and manner of labor not usual to the workman in the ordinary course of his employment resulted in his injury and death. The respondent argues that Barker, when stricken, was engaged in doing his ordinary work under a heat condition which was common to the whole community. Even if this view were reasonable, still the evidence before us is reasonably susceptible to the following different and opposite conclusions: First, that while Barker at the time of his injury was engaged in doing his ordinary work, meaning the work of an electrician, he was not then engaged, nor had he been engaged for a considerable time prior thereto, in doing such work in the manner and under conditions that usually existed in the ordinary course of his employment, and no other workman at that place was working under those same conditions. Secondly, that while the heat condition in a sense may have been common to the whole community, yet that heat condition was intensified and thereby rendered excessive by the manner and in the places in which Barker had been and was actually working when stricken."

In Lumbermen's Mutual Cas. Co. v. Lynch, 63 Ga. App. 530, 11 S.E.2d 699, 701, it was held that a workman who inhaled fumes while doing electric welding in a manhole, under unusual conditions, and which caused edema of the lungs, was injured by accident and was entitled to compensation. The court said: "Although the decisions on the subject are not uniform and can not be entirely reconciled, generally diseases resulting from unusual and unexpected inhalation of gas fumes or dust result from accident within the meaning of the compensation act."

In Todd Dry Docks v. Marshall, 61 F.2d 671, 672, the Circuit Court of Appeals of the Ninth Circuit held, in construing the Longshoremen's Act, 33 U.S.C.A. § 901 et seq., that "a disease, which is not the ordinary result of an employee's work * * * but contracted as a direct result of unusual circumstances connected therewith, is to be considered an injury by accident, and comes within the provisions of acts providing for compensation for personal injury so caused."

The question in Arquin v. Industrial Comm., 349 Ill. 220, 181 N.E. 613, 615, was whether a physician's death was accidental, who, while on duty as an interne in the contagious ward of a hospital, contracted epidemic meningitis, from which he died. The court said: "* * * If an injury is a result such as follows from ordinary means voluntarily employed and in a not unusual or unexpected way, it cannot be called an injury effected by accidental means, but, if in the act which precedes the injury, though such act be voluntarily employed, something unforeseen or unexpected or unusual occurs which produces the injury, then such injury has resulted through accidental means."

It was held in Rinehart v. Stamper Co., 227 Mo. App. 653, 55 S.W.2d 729, 731, that pneumonia contracted by a workman who was required to go into a refrigerator while he was perspiring freely, and which resulted in pneumonia, entitled him to compensation. The court said: "Under the allegations it might reasonably be found that plaintiff sustained violence to the physical structure of his body by being unduly exposed to extreme cold, and that pneumonia naturally resulted therefrom."

The question in McCarthy v. American Car Foundry Co., Mo. App., 145 S.W.2d 486, 488, was whether an engineer who suffered heat exhaustion from shoveling coal into an open fire box was injured by accident. In holding that the injury was by accident, the court said: "It is the settled law of this State that heat exhaustion under such conditions is an accident. * * And, that such accident resulting in injury or death is compensable when the character of the employment is of a nature which intensifies the risk and subjects the employee to a greater hazard than that faced by other people in the same locality."

To the same effect is Juhl v. Hussman-Ligonier Co., Mo. App., 146 S.W.2d 106.

In Gates v. Central City Opera House Ass'n, Colo., 108 P.2d 880, 883, the question was whether an artist employed to paint murals on the outside wall of an arcade, who froze his thumb and finger, had suffered an injury by accident. The court said: "By reason of his employment as an artist at the time and place, claimant was peculiarly exposed to the risk of freezing. Moreover, his exposure and risk were greater than would be that of a person in the community ordinarily engaged in doing outdoor work in cold weather. No other inference can properly be drawn from the evidence. * * * In the present case 'the conditions under which the work required to be performed' by claimant were unusual and not common to the community, and this constituted the causal connection between the work he was required to perform and the resulting injury."

It is asserted that the inhalation of the fumes and gases only reduced appellant's resistance to pneumonia, and was not in fact the proximate cause of the disease. In other words, that the liability could not go further than for the reducing of his resistance, and this was not compensable.

The same question was decided in Crane Elevator Co. v. Lippert, 7 Cir., 63 F. 942, 948. A boy, through the negligence of another, fell and bruised his arm, from which bruise a tubercular condition was set up. It was claimed that while the company might be liable for the bruise they were not liable for the tubercular condition because the germs which caused the disease were in his body. The Circuit Court of Appeals held that it was liable, and said:

"The plaintiff in error further contended on the oral argument that the injury sustained by the defendant in error was not the proximate result of his fall, but arose from the presence of tuberculous germs in his system. It was the hurt occasioned by the fall which afforded an opportunity for the active development of the poisonous germs which had theretofore been innocuous. It was the wrongful act which gave rise to the consequent injury, and it is not apparent that the injury would have occurred in the absence of such cause. In the case of [Milwaukee St. P.] Railway Co. v. Kellogg, 94 U.S. 469, 475 [ 24 L.Ed. 256], it is said:

"'When there is no intermediate, efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must therefore always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury.'

"The wrongful act of the plaintiff in error subjected the injured party to other and dependent causes, which were set in motion by the original hurt."

To the same effect is Jones v. Caldwell, 20 Idaho 5, 116 P. 110, 48 L.R.A., N.S., 119; McCahill v. New York Trans. Co., 201 N.Y. 221, 94 N.E. 616, 48 L.R.A., N.S., 131, Ann.Cas. 1912A, 961; Owens v. Kansas City, etc., R. Co., 95 Mo. 169, 8 S.W. 350, 65 Am.St.Rep. 39; Ohio M. Ry. Co. v. Hecht, 115 Ind. 443, 17 N.E. 297.

The case of Robinson v. National Life Acc. Co., 76 Ind. App. 161, 129 N.E. 707, 708, decided this question. It was an accident insurance case but the point was decided. The insured suffered a fall, causing a compound fracture of the left femur. About 10 days later he died of lobar pneumonia, caused by the fracture. The court, in holding the insured died from an accident, said:

"We do not view the pneumonia as one of two independent causes, the sum of which produced the death of the insured, but rather as one of the links in the chain of causation, and that the accident and the injury resulting therefrom is the proximate cause. * * *

"On account of his depleted and weakened condition his resistance to disease was lowered, and he was rendered more susceptible to pneumococcus germs than if he had not been injured. Said pneumonia was neither traumatic nor septic, but was caused by infection with pneumococcus germs, and it eventually resulted in his death. The pneumonia was the natural sequence to his condition resulting from the injury which he received as aforesaid. * *

"It is a well-known fact of medical science that pneumococcus germs are generally present in the respiratory tract of healthy bodies, but that they are innocuous because of the resisting power of such healthy body, and become active only when the lung tissues are so debilitated as to be unable to resist their attack. If the vital resistance has suffered, as by disease or emaciation, the attack of the germs is facilitated and pneumonia is more readily produced. McFarland's Pathogenic Bacteria and Protozoa (8th Ed.) 445; Strumpell, vol. 1, 242. From this we readily conclude that the pneumonia of the insured was not the result of an accidental contagion, but of the activity of the pneumococcus germs, ever present, upon the lung tissue which had been weakened as a result of the injury.

"It is contended by appellee that the death of the assured did not result directly and independently of all other causes from the bodily injury, but that it was the direct and immediate result of the sum of two causes, namely, his said injury and pneumonia."

In Kovaliski v. Collins Co., 102 Conn. 6, 128 A. 288, 289, the question was before the court and it was held that a tool grinder whose resistance was weakened by his work, which resulted in tuberculosis, was compensable.

"When the injury (the weakened resistance to infection) arises in the course of and out of the employment, then every consequence which flows from it likewise arises out of the employment. 'The chain of causation may not be broken. Every injurious consequence flowing from it is a part of this chain. * * * All physical consequences and disease result from an injury when there is a causal connection between them.' Larke v. Hancock Mut. Life Ins. Co., 90 Conn., [303], 311, 312, 97 A. 320, L.R.A. 1016E, 584."

If the appellant had been struck in the chest with a stone, the effect of which had been to lower his resistance so that pneumonia resulted, no one would question but that it was an accident. He was struck in the respiratory organs by the finer substance of fumes and gases, with the same effect. We see no material difference in the two causes. Such was the reasoning of Lord Birkenhead in Grant v. Kynoch, [1919] House of Lords, A.C. 765.

The case of Linnane v. Aetna Brewing Co., 91 Conn. 158, 99 A. 507, L.R.A. 1917D, 77, followed by Hoag v. Kansas City Ind. Laundry Co., 113 Kan. 513, 215 P. 295, supports appellee's contention that a "germ disease" cannot be an accident or the result of one, unless the result of a traumatic injury. The former case was "overruled" by the legislature of Connecticut. Dupre v. Atlantic Refin. Co., 98 Conn. 646, 120 A. 288. The Kansas case stands alone so far as our research has disclosed; and it would seem to have but little weight since Barker v. Shell Pet. Corp., 132 Kan. 776, 297 P. 418, in which the British doctrine of Fenton v. Thorley is followed. See annotations under headings "Pneumonia" 20 A.L.R. 66 and 73 A.L.R. 539; "Influenza" 20 A.L.R. 57 and 73 A.L.R. 528; "Tuberculosis" 20 A.L.R. 75 and 73 A.L.R. 547; and "Injury from Fumes and Gases" 6 A.L.R. 1466, 23 A.L.R. 335 and 90 A.L.R. 619.

It would be futile to attempt to reconcile the decisions on this question. It cannot be done. But some of the confusion results from the fact that a number of the states (among them New York, Missouri, Washington, Kentucky, and Ohio) have statutes defining the word "accident" or "accidental injury," which necessarily affects the decisions of their courts.

The courts of New York have construed their statute as requiring an injury caused by an accident distinct therefrom, to authorize compensation; and that an injury (not traumatic) resulting from the usual and accustomed labor of the workman is not compensable. But the courts of that state recognize the rule that where the injury is caused by some unusual circumstance connected with the employment, it is compensable. This was decided in Re Claim of Veronica Robbins et al. v. Enterprise Oil Co., Inc., et al., 252 App. Div. 904, 299 N.Y.S. 837, Id., 253 App. Div. 855, 1 N.Y.S.2d 670, and affirmed in 278 N.Y. 611, 16 N.E.2d 123. There a workman was engaged in his regular work of changing gears of an automobile, which required about three hours work while lying on his back. While so engaged he was subject to and exposed to a draft, which caused pneumonia, from which he died.

The case of Lanphier v. Air Preheater Corp., 278 N.Y. 403, 16 N.E.2d 382, decided a month later by a divided court, holds that pneumonia was compensable only when the disease was assigned to something catastrophic or extraordinary. The inference is that the draft of wind that caused pneumonia of the workman in the Robbins case was such an extraordinary occurrence as to constitute the disease an injury by accident; though it is hard to reconcile the two cases. But the rule upon which this case is decided is recognized in both.

It appearing from the findings of the court that appellant was subjected to unusual and extraordinary conditions and hazards not usual to his employment, and to which no other of the workmen on the job was subjected; and that such unusual and extraordinary conditions and hazards were the proximate cause of his attack of pneumonia. We conclude that his injury, including that resulting from pneumonia, was an injury by accident.

We do not decide whether appellant would have been entitled to compensation if his injury had occurred while performing the usual and ordinary labors incident to his employment, and not under the extraordinary conditions found by the court; that is, whether the injury and not the cause of it must be unintentional and unexpected to constitute an injury by accident. The facts of this case do not require it, and we express no opinion on the question.

The judgment will be reversed and cause remanded to the district court with instructions to set aside the judgment, ascertain the amount of compensation to which appellant is entitled and enter judgment therefor, together with reasonable attorney's fees for the trial in the district court, and $400 attorney's fees for the appellant's presentation of the case in this court.

It is so ordered.

ZINN, SADLER, and MABRY, JJ., concur.