of the pension to be allowed to the applicant under paragraph (f) of section 8, but that as $640 had already been paid to the applicant, this amount, under the provisions of the last sentence of paragraph (a) of section 7, must be deducted from the $3,360 before figuring the pension, leaving $2,760 as the amount upon which the 8 per cent. should be figured, and that this would give a pension, as claimed by counsel for plaintiff in error, of $18.33 per month, instead of $22.40 per month as fixed by the Industrial Commission. We do not agree with this argument of counsel for plaintiff in error. Paragraph (f) of section 8 with reference to the pension distinctly provides that the pension is to be ascertained under paragraph (a) of section 7, and is to equal the amount payable as a death benefit "if the employee had died as the result of the injury at the time thereof." If the employee had died at the time of the injury there would not have been any compensation payments to be deducted in ascertaining the amount payable as a death benefit. The argument of counsel, if carried to its logical conclusion, it seems to us, would, in effect, require paragraph (f) of section 8 to be construed so that if under the first part of said paragraph the amount paid should equal the amount of the death benefit there could be no pension allowed thereafter, and surely that was not the intention of the Legislature as to the proper construction of said paragraph. Reading paragraph (f) of section 8 in connection with paragraph (a) of section 7, we think it is manifest that the Industrial Commission rightly figured four times the average annual wage of $840 as the basis upon which the pension should be fixed, without deducting the amount that had theretofore been allowed and paid the applicant as compensation. Finding no error in the record, the judgment of the circuit court will be affirmed. Judgment affirmed. ROCKFORD HOTEL CO. v. INDUSTRIAL COMMISSION ET AL. (No. 14000.) (Supreme Court of Illinois. Oct. 22, 1921. Rehearing Denied Dec. 9, 1921.) 132 Northeastern Reporter, 759. MASTER AND SERVANT-DEATH OF EPILEPTIC EMPLOYEE, FALLING INTO ASH PIT AND RECEIVING FATAL BURNS, HELD COMPENSABLE. Where an employee, while engaged in the performance of the duties of his employment, fell into an ash pit, and was so burned that death resulted, his death was not from epilepsy or pre-existing disease, but from burns received from falling into the pit, and is within the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 373.) Error to Circuit Court, Winnebago County; Robert K. Welsh, Judge. Proceeding under Workmen's Compensation Act by Ida Madison against the Rockford Hotel Company. The award fixed by the arbitrator was confirmed by the Industrial Commission, and defendant brought certiorari to the circuit court, which set aside the award, and plaintiff brings error. Reversed and remanded, with directions. ror. Garrett, Maynard & Hull, of Rockford, for plaintiff in error. FARMER, J. Joseph Madison was employed by the Rockford Hotel Company on and prior to September 5, 1919. On that day, while in the discharge of his duties he fell into an ash pit, where hot coals and cinders were thrown when removed by him from the furnace. He was seen by the engineer of defendant in error, a few minutes before he was found in the ash pit, in the act of raising the cover from the pit for the purpose of drawing into it ashes and cinders from the furnace. The witness left the room for 5 or 10 minutes, and when he returned found Madison lying on his back in the pit on the hot cinders. He was unconscious, and before witness could procure help and remove him he was badly burned. After Madison was removed from the pit he regained consciousness and was taken to a hospital, where he remained several days. He was then removed to his home, where he died December 15, 1919. The doctor who held a post mortem described the conditions he found, and expressed it as his opinion that the death was caused by the burns. Deceased left him surviving a widow, but no child or children. The widow filed an application for compensation, which the arbitrator allowed, and fixed the award at $50 per month for a period of 66 months, one month at $47.72, and the further sum of $50, being the amount which accrued from December 16, 1919, to January 16, 1920. The award fixed by the arbitrator was confirmed by the Industrial Commission on a petition for review. Defendant in error sued out a writ of certiorari from the circuit court. That court set aside the award and held there was no liability. This court granted a writ of error to review that decision. Liability under the Workmen's Compensation Act (Laws 1913, p. 335) is denied on the ground that Madison's injury did not arise out of his employment. The argument in support of that contention is that the fall into the ash pit was not due to an incident of the employment, but was caused by Madison being seized with an epileptic fit; that he was subject to such fits, of which his employer had no knowledge; that the fit was the direct and only cause of his injury, and the accident did not arise out of the employment. It is generally held by the English courts and the courts of this country that, where the death of an employee results from a, prior existing disease, like heart trouble or other impaired physical condition, while the workman was doing his ordinary work in the ordinary way, and there was no sudden, unusual, or violent strain, it will not be considered an accidental death arising out of the employment, within the meaning of the Workmen's Compensation Act. It is contended by defendant in error those principles are controlling in this case, because there was no evidence of any unusual effort or strain of Madison, which caused or contributed to his fall, or to bring on a fit, as the result of which he fell into the pit. So far as disclosed by the testimony, Madison was doing his work in the ordinary way when last seen. No one saw him fall, but there was proof by medical and lay witnesses that in the year 1918 he had spasms resembling epileptic fits, and the doctors who testified on that subject believed him afflicted with that trouble. The widow testified she had been married to deceased and lived with him a year before the accident, and that she had never seen or known of his having a fit. It must be admitted the proof of defendant in error tended to show Madison occasionally had spasms or fits. Whatever the disease was that caused the spasms or fits, it was mild in form, and the fits, were not many or of frequent occurrence. It is contended by defendant in error that it is not as probable Madison's fall into the pit was the result of his being overcome by gases or fumes or other causes while removing the hot ashes and cinders from the furnace, as that the fall was caused by an epileptic fit, in view of the testimony referred to. The fact that we cannot overlook or ignore is that Madison, by reason of his falling into the pit while engaged in performing the duties of his employment, was so severely injured that he died from the injuries. He did not die from epilepsy or a pre-existing disease, but from the burns he received from falling into the pit. Some cases hold that, where an employee is seized with a fit and falls to his death, the employer is not liable, because the injury did not arise out of the employment (Van Gorder v. Packard Motor Car Co., 195 Mich. 588, 162 N. W. 107, L. R. A. 1917E, 522; Brooker v. Industrial Com., 176 Cal. 275, 168 Pac. 126, L. R. A. 1918F, 878); but a majority of the courts, American and English, hold that, if the injury was due to the fall, the employer is liable, even though the fall was caused by a pre-existing idiopathic condition. Defendant in error admits the English decisions "apparently sustain the position of the applicant in this case," but endeavors to point out that those decisions are not all in harmony, and argues the American cases holding the contrary are based on sounder reason and principles. The view of this court on that question was expressed in the opinion in Peoria Railway Terminal Co. v. Industrial Board, 279 Ill. 352, 116 N. E. 651. In that case the employee was fireman on a switch engine. While engaged in performing his duties he fell from the engine, while it was running slowly and smoothly over a practically level roadbed. He died in a short time, without regaining consciousness. An autopsy was held, and there was medical testimony that the fall caused the death, and also that the death was produced by a pre-existing disease. The widow testified she had been the wife of deceased one year, and during that time he was in good health. The court held the death resulted from an accident arising out of the employment, and that the employer was liable, and cited many authorities supporting that conclusion. That decision we think applicable to this case. The judgment of the circuit court is reversed, and the cause remanded to that court, with directions to confirm the award. Reversed and remanded, with directions. SPRINGFIELD DIST. COAL MINING CO. v. INDUSTRIAL COMMISSION ET AL. (No. 13997.) (Supreme Court of Illinois. Oct. 22, 1921. Rehearing Denied Dec. 9, 1921.) 132 Northeastern Reporter, 752. 1. MASTER AND SERVANT-EVIDENCE HELD INSUFFICIENT TO SHOW COMPENSATION CLAIMANT'S INJURY CAUSED INCAPACITY FROM HEART DISEASE. Evidence held insufficient to prove that compensation claimant's permanent incapacity for work from heart disease was caused solely by accident in which his ribs were injured. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) 2. MASTER AND SERVANT - RULE AS TO COMPENSATION FOR INJURY AGGRAVATING DISEASE STATED. An employee is entitled to compensation, for total incapacity proximately caused by the injury if the incapacity results from accident inde pendent of pre-existing disease, but, if the injury merely accelerates or aggravates such disease, he can recover compensation only to the extent and in the proportion in which the pre-existing disease is increased or aggravated; and if an accident results in a lesion or a new condition of which it is the proximate cause, there may be a recovery of compensation, regardless of predisposing conditions making the employee more susceptible to injury. (For other cases, see Master and Servant, Dec. Dig. § 376[2].) Error to Circuit Court, Sangamon County; E. S. Smith, Judge. Proceedings under the Workmen's Compensation Act (Hurds Rev. St. 1919, c. 48 §§ 126-152i) by A. R. Mercer for compensation for injuries, opposed by the Springfield District Coal Mining Company, employer. Award by arbitrator for employee confirmed by the Industrial Commission and by the circuit court, and the employer brings error. versed and remanded, with directions. T. W. Quinlan, of Springfield, for plaintiff in error. Re CARTWRIGHT, J. A. R. Mercer, the defendant in error, was employed in the mine of plaintiff in error, the Springfield District Coal Mining Company, and on December 31, 1918, was getting out an empty coal car when the mule started up, catching him between that car and another one, in the region of his left lower ribs. He made application for compensation, alleging that the accident caused an injury which had resulted in total and permanent disability. At the time of the hearing before the arbitrator he was totally and permanently incapacitated for work from heart disease, which was conceded, and the only question in dispute was whether the injury was the proximate cause, in whole or in part, of his disability. The arbitrator decided that the accident was the cause of the total and permanent disability and awarded the applicant $12 per week for a period of 291 weeks, $8 for one week. and $23.50 per month during the remainder of the life of the applicant as a pension. On a review of the decision of the arbitrator by the Industrial Commission additional evidence was heard and the award was confirmed. On a writ of certiorari from the circuit court of Sangamon county the award was again confirmed, and this court granted a writ of error for a review of the judgment of the circuit court. [1] The applicant was 50 years old and before the accident, had worked on a farm and for four or five months prior to the accident had worked in this coal mine. He had always been able to do such work, and testified that he never had any kind of heart trouble or internal trouble before his injury; that at the time of the accident he did not think he was hurt and went back to his work, but could not get his breath and was sent home in a buggy; that a doctor bandaged him, and he had been under the care of that doctor and another since his injury; that his heart ached, his head felt like it was going to burst, and his heart felt filled up and heavy. The doctor who treated applicant at the time of the injury and bandaged him and also treated him at differernt times up to the hearing testified that he was suffering from myocarditis, an organic disease of the heart caused by infection and consisting of degeneration of the heart muscles; that the disease is never the result of an outside injury or force applied to the body; that he had examined the applicant thoroughly since the injury, and he was in a bad condition, weak and emaciated, but there were no results remaining from the injury which could possibly cause myocarditis; and that he had a temporary disability only from the injury. The other doctor who had treated the appli cant testified that when he saw him after the accident he had received an injury of the left lower ribs, which from the nature of the injury, appeared to be a light blow; that he had been strapped for the injury and was having considerable trouble with his heart and abnormal respiration, and that the squeezing he had could have aggravated the condition that was already there, but the heart disease was present before the time of the injury. This was all the evidence before the arbitrator and commission and was insufficient to sustain an award that the condition of the applicant was solely the result of the accident. [2] An employee is entitled by the statute to be compensated for every accidental injury suffered in the course of his employment and arising out of the employment. That is the measure and limit of his right, and if an injury sustained is the proximate cause of the incapacity for which compensation is sought, the previous physical condition of the employee is unimportant, and he may recover for permanent incapacity which results from an accident independent of pre-existing disease. He is not entitled to compensation for a condition resulting from a pre-existing disease, and not from an injury suffered in the course of employment and arising out of it. If there is a pre-existing disease, the employee is entitled to recover for all the consequences attributable to the injury in the acceleration or aggravation of such disease. Such aggravation or acceleration, permanent and progressive in its nature, will entitle the employee to compensation to the extent and in the proportion in which the pre-existing disease is increased or aggravated. Mere predisposing physical condition does not affect the right to compensation. If an accident results in a lesion or a new condition of which it is the proximate cause, there may be a recovery of compensation for the same, regardless of predisposing conditions making the employee more susceptible to the injury. Big Muddy Coal & Iron Co. v. Industrial Board, 279 Ill. 235, 116 N. E. 662; Peoria Railway Terminal Co. v. Industrial Board, 279 Ill. 352, 116 N. E. 651; Spring Valley Coal Co. v. Industrial Com., 289 Ill. 315, 124 N. E. 545. Under these rules, the previous condition of the applicant was a material circumstance to be considered in ascertaining whether his condition of total and permanent disability resulted from the accident suffered in the course of his employment and arising out of it or from the disease, and, if from both, the proportion in which the accident contributed. The doctor who attended the applicant at the time of the injury, testifying as an expert, said that there were no results remaining from the injury, and that the disability therefrom was temporary, only. The other doctor said that the accident could have aggravated the heart disease which was present before the time of the injury, and, in view of the testimony that the applicant had always been able to do ordinary work, a conclusion that the accident aggravated or increased the heart condition, whether temporarily or permanently, might be justified. There can be no doubt from the evidence that the applicant had heart disease before the injury, which was progressive and organic in its nature and arose from infection, and a right to compensation depended upon the question whether the injury had aggravated and intensified the existing condition. He would be entitled to recover so far as the accident contributed, if at all, to his present condition, but there is no evidence tending to show that such condition was due wholly to the accident. The award cannot be sustained on the evidence in the record, and there should be a further opportunity, if desired, to introduce evidence on the question whether, and, if so, to what extent, the injury contributed to the present permanent incapacity of the applicant. The judgment of the circuit court is reversed, and the cause remanded to that court, with directions to remand the application to the Industrial Commission for a determination of the right to compensation, |