3. MASTER AND SERVANT-RUPTURE CONSTITUTING ACCIDENTAL "VIOLENCE TO THE PHYSICAL STRUCTURE OF THE BODY."

Where an employee died in the course of his employment from a rupture of the aorta, caused by "an extra effort in vomiting," a claimant, irrespective of anterior causes, was entitled to compensation, as the rupture itself occurring from such effort would constitute accidental "violence to the physical structure of the body."

(For other cases, see Master and Servant, Dec. Dig. § 373.)

4. MASTER AND SERVANT-NATURAL DEATH CAUSED BY CHRONIC AILMENT GIVES NO RIGHT TO COMPENSATION.

If death occurs during course of employment in an ordinary way natural to progress of employee's disease, with which he was afflicted before the accident, there can be no recovery; but, if death results from an injury due to some accident in the course of his employment, the fact that employee had a chronic ailment, rendering him more susceptible to such an injury, will not defeat the right to compensation.

(For other cases, see Master and Servant, Dec. Dig. § 376[2].)

5. MASTER AND SERVANT-FINDINGS OF FACT BY REFEREE CANNOT BE REVERSED BY WORKMEN'S COMPENSATION BOARD WITHOUT HEARING DE NOVO.

Where referee found that employee's death in course of his employment was due to a rupture of the aorta caused by an "extra effort in vomiting,” probably due to noxious gases, the smell of his burning clothing, or fright, the Workmen's Compensation Board, without a hearing de novo, had no power to reach different conclusions, or reverse referee on theory of his error of law in drawing deductions different from which would have been made by board.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

Appeal from Court of Common Pleas, Luzerne County.

Proceeding under the Workmen's Compensation Act by Bridget Clark against the Lehigh Valley Coal Company for compensation for the death of her husband. From a judgment dismissing an appeal from the Workmen's Compensation Board, reversing an award of a referee in favor of claimant, she appeals. Judgment and order of board reversed, and award of referee reinstated and affirmed.

Argued before Brown, C J., and Moschzisker, Frazer, Simpson, and Kephart, JJ.

Roger J. Dever, of Wilkes-Barre, for appellant.

P. F. O'Neill and F. W. Wheaton, both of Wilkes-Barre, for appellee.

MOSCHZISKER, J. Bridget Clark, widow of Patrick Clark, sought compensation for the death of her husband. The referee found in her favor, but the Workmen's Compensation Board reversed. The common pleas of Luzerne county affirmed the board, and claimant has appealed to this court.

The referee reported, inter alia, as follows:

"The testimony in this case shows that Patrick Clark, the claimant's husband, was employed by defendant company in looking after a line of pipe used for the purpose of conveying silt from the surface into its

mine. His duties were to keep that line in repair, and, in order to enable him to examine it under ground, he carried an open lamp. On the morning of February 23, 1916, his lifeless body was found inside the mine, a short distance from this pipe line, and his lighted lamp about two feet away from him. His clothing was burning, and he had severe burns upon his body. He was in a kneeling position, on his hands, and apparently had been vomiting. That he was on the premises of his employer, and engaged in the performance of his duty, at the time of his death, is undisputed. That his duties required him to carry an open lamp is not denied, and no theory is advanced for the burning of his clothes and body, other than they were burned by this lamp. The medical testimony establishes the fact that death was due to a rupture of the aorta, which is a large blood vessel leading from the heart."

The report also contains these further findings:

(1) "The vomiting was due to probably one of three causes, either noxious gases, the smell of the burning clothing, or fright from discovery of his clothing being on fire"; (2) deceased was afflicted with a "syphilitic condition, in which he might have lived four or five years, or his death might have occurred at any time"; (3) although this condition rendered deceased more susceptible to a rupture of the aorta than he otherwise would have been, yet in point of fact the rupture was immediately “caused by extra effort in vomiting"; finally (4) deceased “met with an accident and sustained injuries which caused his death," while engaged in "discharging his duties" as an employee of defendant.

Defendant asked review by the Compensation Board upon the ground of lack of evidence to sustain the referee's finding of fact that "the death of decedent was due to a rupture of the aorta, * * * caused by extra effort in vomiting, due to one of three causes," etc.; and its appeal was classed by the board, not as raising a question of fact as to whether the evidence warranted, or justifed, this finding, but rather as involving a pure point of law concerning the presence of any evidence to sustain the finding. The board decided there was no such evidence, and therefore set aside the referee's compensation order.

[1] We say the appeal was classed as involving a question of law, and not of fact, because the referee was reversed without a hearing de novo, such a hearing being essent al whenever the intention is to disturb findings of fact (McCauley v. Imperial Woolen Co., 261 Pa. 312, 318, 319, 104 Atl. 617); but, notwithstanding this classification, when considering the report of the referee, instead of merely searching to see if there was any evidence capable of sustaining that official's findings of fact, the board substituted its own inferences and deductions for those already upon the record, which, on such a review, it lacked power to do (McCauley v. Imperial W. Co., supra, 261 Pa. 319, 104 Atl. 617; Dainty v. Jones & L. S Co., 263 Pa. 109, 113, 106 Atl. 194).

As some explanation of the erroneous course thus pursued, the report of the board indicates a fundamentally wrong idea of its powers and duFor instance, it is there stated:

t'es

"[1] We have no evidence that will justify us in connecting the vomiting with the death, nor [2] the burnt clothing with the vomiting." Whereas, on the appeal then pending, neither was a proper test to be applied.

[2, 3] We shall consider the second test first. Under the Pennsylvania statute (Act June 2, 1915 [P. L.. 736]) the injury need not arise out of, or be due to, the person's employment, it is sufficient if it happens in the course thereof. Lane v. Horn Hardart Baking Co., 261 Pa. 329, 335, 104 Atl. 615. Here, concedely, Clark died in the course of his employment, but the question is: Did he meet death as a result of accidental "vio

lence to the physical structure of the body"? McCauley v. Imperial W. Co., supra, 261 Pa. 327, 104 Atl. 617. Irrespective of anterior causes, if the vomiting took place, and this "extra effort" caused the rupture of the aorta, these facts were sufficient to entitle the claimant to compensation, and it was not essential that the "burnt clothing" should be connected with the vomiting. In other words, the rupture itself, occurring from "extra effort in vomiting," would, under the circumstances, constitute accidental violence to the physical structure of the body, within the broad meaning of that term as heretofore defined by us. McCauley v. Imperial W. Co., supra, 261 Pa. 326, 327, 104 Atl. 617; Lane v. Horn & Hardart Co., supra. [4] In addition to the error just discussed which is typical of others of a like character, the report of the board strongly suggests a mistaken view of the law relative to the bearing upon the case of Clark's diseased condition, prior to and at the time of the vomiting which brought on the rupture resulting in his death; while the fact that he suffered from a malady which, in time, might have terminated fatally, called for consideration, it was in no sense controlling. If death comes, during the course of employment, in an ordinary way, natural to the progress of a disease with which one is afflicted, and with which he was smitten before the accident, there can be no recovery (McCauley v. Imperial W. Co., supra, 261 Pa. 327, 104 Atl. 617; Lane v. Horn & Hardart Co., supra, 261 Pa. 333, 104 Atl. 615); but, if the demise is brought about by an injury due to some mishap, or accident, happening during the course of his employment, the fact that deceased had a chronic ailment which rendered him more susceptible to such injury than an ordinary person would be, will not defeat the right to compensation. Upon this subject, see Bradbury's Workmen's Compensation Law (3d Ed.) 326 to 340, where a general discussion will be found citing many cases illustrative of the trend of judic al opinion, which supports the law as we have stated it, among others, Madden's Case, 222 Mass. 487, 494, 111 N. E. 379, L. R. A. 1916D, 1000. Certain of the cases cited are governed by statutes which differ somewhat in legislative language from the Pennsylvania act; but in no instance is this difference of a character to affect the relevancy of the decision, so far as it involves the point now before us.

[5] All of which brings us to a consideration of the first test, supra, applied in examining the referee's findings and the testimony relating to the cause of Clark's death. At this point the board mistook its powers and duties as an appellate tribunal, and thereby fell into material error. The question was not as to the existence of evidence which, in the opinion of the reviewing body, would "justify" it "in connecting the vomiting with the death," but was there any evidence which, within the bounds of reason, possibly could be held to sustain the referee's findings connecting the vomiting and death? If such evidence appeared (and the referee's findings indicate it did) then, albeit the board on a hearing de novo, might draw other inferences therefrom and reach conclusions differing from those upon the record before it. yet in the absence of such a hearing, it was beyond the power of that body so to do; and, on the then pending appeal, it was likewise beyond its power to reverse the referee on the theory that he had erred, as a matter of law, in drawing deductions from the testimony different from those which would have been made by the board; this, nevertheless, is. in effect, what the latter undertook to do..

Therefore the conclusions of law pretending to assert a lack of evidence to sustain the findings of the referee, having been arrived at through an examination that ignored the controlling rules which should have guided the board, cannot stand, and the only findings of fact properly before us are those of the referee. In the absence of correctly derived conclusions of law to overcome these findings, they are decisive (McCauley v. Imperial W. Co., supra, 261 Pa. 329, 104 Atl. 617); thereon claimant is entitled to compensation, and the board erred in deciding otherwise, as did the court below.

The judgment of the common pleas and the order of the Compensation Board are both reversed; the award of the referee is reinstated and affirmed.

SUPREME COURT OF PENNSYLVANIA.

MASTER AND

TIGUE

V.

FORTY FORT COAL CO.*

SERVANT-ON APPEAL FROM

FINDINGS OF FACT HEARING DE NOVO.

REFEREE'S

The workmen's compensation board cannot reverse an award of compensation upon an appeal from the referee's findings of fact without a hearing de novo.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

Appeal from Court of Common Pleas, Luzerne County.

Proceeding by Bridget Tigue against the Forty Fort Coal Company for compensation under the Workmen's Compensation Act (Act June 2, 1915 [P. L. p. 736]). From a judgment reversing the decision of the workmen's compensation board, which reversed an award of compensation made by the referee, and entering judgment in favor of the claimant for the death of her husband according to the recommendation of the referee defendant appeals. Appeal dismissed, and award of referee affirmed.

Argued before Brown, C. J., and Moschzisker, Frazer, Simpson, and Kephart, JJ.

Benjamin R. Jones, of Wilkes-Barre, and John R. Wilson, of Scranton, for appellant.

Roger J. Dever, of Wilkes-Barre, for appellee.

PER CURIAM.. The referee found that at the time claimant's husband, an employee of the defendant, was killed, he was returning from work "on the premises of defendant company," and that "at the time of the accident the decedent was leaving his place of employment by a customary route of going to and from the Fourt foot tunnel to the homes of employees and was along or over the railroad tracks on property of defendant company inclosed by a fence." From these findings of fact the Forty Fort Coal Company appealed to the compensation board, which reversed the award of the referee, without a hearing, de novo. This it could not do McCauley v. Imperial Woolen Co. et al., 261 Pa. 312, 104 Atl. 617. And the learned court below properly sustained the claimant's appeal to it. Appeal dismissed, and award of referee affirmed.

*Decision rendered May 5, 1919. 107 Atl. Rep. 862.

1. MASTER

SUPREME COURT OF WASHINGTON.

GOWEY
V.

SEATTLE LIGHTING CO. (No. 15338.)*

OCCUPA

AND SERVANT-EXTRAHAZARDOUS TION IN "FACTORY" OR "WORKSHOP" WITHIN WORKMEN'S COMPENSATION ACT.

Under Workmen's Compensation Act (Rem. Code 1915, §§ 6604-2, 6604-3), enumerating hazardous works, and defining "workshops" as places where machinery is used, and "factores" as undertakings in which the business of working at commodities is carried on with power-driven machinery, a gas company's general office, in which clerical work is carried on by a woman clerk injured in operating a power-driven machine for making plates for printing bills, is a factory or workshop, though her principal duties are clerical.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

(For other definitions, see Words and Phrases, First and Second Series, Factory; Workshop.)

2. MASTER AND SERVANT-RIGHT OF ACTION ON DEFAULT IN PAYMENTS BY MASTER UNDER WORKMEN'S COMPENSATION ACT.

Workmen's Compensation Act (Rem. Code 1915, § 6604-8), as amended by Laws 1917, p. 487, does not preserve the right of action existing in favor of an injured employee who would otherwise fall within the Workmen's Compensation Act against an employer who fails to pay into the accident fund the amount it would be required to contribute thereto, because the employee was within the act.

(For other cases, see Master and Servant, Dec. Dig. § 383.)

Department 2.

Appeal from Superior Court, King County; A. W. Frater, Judge. Action by Elizabeth C. Gowey against the Seattle Lighting Company. From a judgment for defendant, plaintiff appeals. Affirmed.

James Kiefer, of Seattle, for appellant.

Poe & Falknor, of Seattle, for respondent.

PARKER J. The plaintiff, Elizabeth C. Gowey, commenced this action in the superior court for King county, seeking recovery of damages for personal injury which she claimed resulted to her from the negligence of the defendant lighting company. One of the defenses set up by the defendant in its answer is that the injury for which the plaintiff seeks recovery was received by her while engaged in an extrahazardous employment within the meaning of the Workmen's Compensation Act (Rem. Code 1915, §§ 6604--1 to 6604-32), and that therefore she must recover, if at all. from the accident fund provided for in that act. The cause was decided by the court in favor of the defendant and against the plaintiff upon this defense at the beginning of the trial, as a matter of law. While the question was first presented to the court in the form of a mo*Decision rendered, Oct. 15, 1919. 184 Pac. Rep. 339.