"It is urged that the clause of the act making attorneys' and physicians' fees in accident claims adjusted under its provisions subject to the approval of the Industrial Accident Board, and providing that no payment under this act shall be assignable or subject to attachment or garnishment, or be held in any way for any debts, is unconstitutional as limiting the right of contract, preventing the injured party from employing an attorney of his choosing. In support of this contention, section 12, art. 2, of the Constitution is cited, which is as follows: 'Any suitor in any court in this state shall have the right to prosecute or defend his suit, either in his own proper person or by an attorney or agent of his choice.' "The Industrial Accident Board is not, in contemplation of law, a court and a claimant before it for damages resulting from personal injuries is not strictly a 'suitor in any court,' but the right of a claimant to select and employ an attorney or agent to represent him in the matter is recognized by the provision referred to. These restrictions in the act, as applied to those who submit to its provisions by election, certainly cannot be held unconstitutional. They were deemed by the Legislature proper and necessary to safeguard the interests of the class for whose benefit largely this act to promote the welfare of the people of the state' was passed; they are germane to the purpose of the act, and in the light of conditions previously existing in litigation over personal injuries to workmen, of which courts of last resort have taken judicial notice in construing workmen's compensation acts, are beneficial and appropriate, if not essential, to an efficient administration of the law. "We do not deem it necessary to review in detail the underlying reasons which are recognized as fully justifying and sustaining these special provisions, but those interested in that particular will find them graphically elaborated by Judge McPherson in Hawkins v. Bleakley, supra [(D. C.) 220 Fed. 378], and discussed in detail in Cunningham v. Improvement Co., supra [44 Mont. 180, 119 Pac. 554], and also pertinent reflections by Justice Sterling in Ayers v. Buckeridge, [1902] 48 K. B. 57." [3] It is urged by counsel for appellee that this court should enter judgment in this proceeding, and cause execution to be issued for the amount thereof. An examination of the statute referred to by counsel satisfies us that this court has no such power. No judgment has been entered in this proceeding, and neither the Industrial Accident Board nor this court has authority to enter a judgment. This is a special statutory proceeding, an exercise of the police power of the state. The order of the Industrial Accident Board is affirmed, with costs. ACT-COURSE OF EMPLOYMENT-CIRCUMSTANTIAL EVIDENCE. In an action under the Workmen's Compensation Act, the servant's death may be determined to have resulted from an accident, and to have arisen out of and in the course of employment, by inferences drawn from circumstantial or presumptive evidence alone. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) 2. MASTER AND SERVANT-SCOPE OF EMPLOYMENT-EVIDENCE. Facts proven held sufficient to warrant an inference that the servant watchman, guarding a trench where gas was leaking, met his death from asphyxiation while engaged in performing duties assigned by the master. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-FINDING OF FACT-AFFIRMANCE. Where the trial court concluded upon a basis of rational inference, tantamount to legal proof, that servant's death arose out of and in the course of his employment, Workmen's Compensation Act, § 18, requires an affirmance of the judgment. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Certiorari to Court of Common Pleas, Essex County. Petition under the Workmen's Compensation Act by Josephine Manziano and others against the Public Service Gas Company. The trial court found for petitioner, and the company brings certiorari. Affirmed. Argued June term, 1918, before Parker and Minturn, JJ. Harry Heher, of Trenton, for plaintiffs. MINTURN, J. The deceased was found dead in a trench in the city of Trenton which he had been employed to guard, and had been guarding during the night. He had been employed by defendant in another capacity during the day, and was put to work on two trenches which had been dug by defendant in an effort to locate leaks in the gas main. The following facts were inferable from the testimony: The gas from the leaks permeated the atmosphere to such an extent that the odor of gas could be detected half a block distant. The indensity and volume of escaping gas made standing upon the trench embankment dangerous to employees. The men engaged by day at work in the trenches found existence there uncertain after the lapse of four or five minutes, and they therefore worked in relays, each company being * Decision rendered, Nov. 29, 1918. 105 Atl. Rep. 484. taken out after four or five minutes in order to obtain fresh air by walking about, when they were taken back to relieve the men who had replaced them. The maintenance of life in the trenches was impossible after six minutes therein, and the inhalation of fresh air before the expiration of that period of time alone preserved the vitality of the men. Those who worked in the trenches by day were not put to work there at night; the deceased was put to work there with instructions to guard the trenches, to keep the guard lights upon the embankments continuously lighted, and generally to protect the trenches from inconsiderate use or observation by the traveling public. To assist it in this work, the defendant had carefully blockaded the trenches by an accumulation of dirt excavated therefrom, as well as by an accumulation of paving material from the surface of the street, and at each end by a temporary barricade of planking. Four lighted warning lamps were suspended at the trenches, and those, as has been observed, the deceased was expected to watch and keep lighted. The decedent had been seen by city policemen several times during the night, and they spoke to him of the coldness of the night and the need of an overcoat. He was last seen near the trenches by a patrolman a little after 4 a. m., and he was not seen again until his body was found asphyxiated in the trench about 6 a. m. He was found in a quasi rising posture, nearly on his knees, with his head resting against the embankment as though engaged in an effort to extricate himself. When he was discovered one of the planks forming the barricade was down, and one of the lamps lay unbroken and extinguished on its side on the embankment. The cause of this disorder was not distinctly in evidence. The petition was filed against defendant, under the provisions of the Workmen's Compensation Act (P. L. 1911, p. 134), and the trial court found for the petitioner, and this writ was allowed to review the correctness of the finding. [1] The brief of the defendant succinctly places the issue thus presented upon the insistence that "The trial court evidently considered that the evidence justified the inference that the decedent's death was accidental, and arose out of and in the course of his employment; but no attempt is made to explain why the evidence in this particular case justifies the inference." The argument obviously is, and the brief so declares, that, "the evidence must give a substantial support to the finding." If by this be meant that there must be direct viva voce testimony, tending to show the manner in which the deceased met his death, and that a rational inference cannot be drawn from proved facts and circumstances, the contention runs counter to the general rules of evidence, and to the doctrine established by the adjudged cases in this jurisdiction. Circumstantial or presumptive evidence has alway presented a basis for deductive reasoning in philosophy and in every walk of life, as well as in the determination of legal questions, both civil and criminal. Referring to the character and legal conclusiveness of such evidence as a basis for the solution of civil causes, Mr. Best briefly but comprehensively defines it as "a mere preponderance of probabilities, and therefore a sufficient basis of decision." 1 Best on Evidence, 135; 1 Greenleaf, 15. It is this preponderance of the aggregate probabilities, judicially termed the weight of evidence, which furnishes the legal standard of proof in civil causes. Discussing this department of proof, Blackstone declares: "When a fact cannot itself be demonstrated, that which comes nearest to proof of it is proof of the circumstances necessarily or usually attending it; this proof creates a presumption which is relied upon till the contrary is proved." 3 Blackstone, 371. Such presumptions are more or less intuitive, and are based as necessary logical deductions and generalizations upon the common experience of mankind from conceded facts. Treating of the subject, Prof. Greenleaf says: "They depend upon their own natural force and efficacy in generating belief or conviction in the mind as derived from those connections which are shown by experience, irrespective of any legal relations. These merely natural presumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or control of any rules of law whatever." 1 Greenleaf, Evidence, 50. Further analyzing the subject, Mr. Best in his treatise states: "They not only form important links in a chain of evidence and frequently render complete a body of proof, which would otherwise be imperfect, but the concurrence of a large number of them may (each contributing its individual share of probability) not only shift the onus probandi, but amount to proof of the most convincing kind." 2 Best on Evidence, 577. [2] Explanations may be offered to answer the inquiry as to the manner in which the deceased came to be in the trench. Witnesses testify that he was carefully performing his duty all night until 4 o'clock in the morning, and therefore we may assume that he never left the scene of his employment; a presumption emphasized by the fact that his body was found on the scene of his work. The plank was down, the earth disturbed, and the light was out, and a reasonable inference may be drawn that ex necessitate, inhaling gas all night, he approached the trench to light the lamp, or to do some other necessary act, when, stupefied by the noxious odor, he lost his balance and fell into the hole, and was unable by reason of the stupefaction to extricate himself in time to save his life. The necessary act of attending to a call of nature apart and away from the scene of his employment, where the master had not furnished the necessary accommodation for the purpose, in reaching which distant place the servant was killed by a passing train, was held not to be so disconnected from his employment as to deprive his representative of the right of recovery. Zabriskie v. Erie R. R., 85 N. J. Law, 157, 88 Atl. 824, affirmed 86 N. J. Law, 266, 92 Atl. 385, L. R. A. 1916A, 315. [3] In such an environment the natural presumption is that the deceased met death while engaged in his occupation. There was no evidence that between 4 and 6 o'clock in the morning he voluntarily entered the trench for any purpose incompatible with his duty, nor was there evidence that he was non compos or abnormal and unable to appreciate and realize the necessary incidents of the danger which surrounded him, and to guard against the manifest and inherent perils of which he was enjoined to warn the public. In the absence of proof to that effect, the theory of suicide must be eliminated from the case, for the rule seems to be settled that where a person is found dead the presumptions are that his death was natural or accidental, unless the evidence shows him to have been insane, that suicide will not be presumped, and that the fact of death in an unknown manner creates no such presumption. Germain v. Brooklyn Life Ins. Co., 26 Hun (N. Y.) 604; 29 Cyc. 235, and cases cited. Illustration of the application in this jurisdiction of deductive reasoning from circumstantial testimony are presented in: De Fazio's Estate v. Goldschmidt Co., 87 N. J. Law, 317, 95 Atl. 549; Bryant v. Fissell, 84 N. J. Law, 73, 86 Atl. 458; Muzik v. Erie R. R. Co., 85 N. J. Law, 129, 89 Atl. 248. In two of the cases cited there was proof only of the death and of the dangerous environment of the deceased, which furnished presumptive or circustantial testimony of the manner of death, by a logical process of rational induction based upon human experience, from which the reasonable inference of the existence of the statutory requirements was de ducible, i, e., that death arose out of and in the course of the employment. [4] The trial court having thus concluded upon a basis of rational inference, tantamount to legal proof of the fact, the eighteenth section of the Workmen's Compensation Act (P. L. 1911, p. 134) requires the affirmance of the judgment. Bryant v. Fissell, supra; Sexton v. Telegraph Co., 84 N. J. Law, 85, 86 Atl. 451. We have examined the exceptions to the court's rulings upon disputed testimony, and have concluded that the admission or rejection of the testimony under the well-settled rule applicable to that character of proof was entirely discretionary. Alcott v. Public Service Co., 78 N. J. Law, 482, 74 Atl. 499, 32 L. R. A. (N. S.) 1084, 138 Am. St. Rep. 619. The judgment will thereof be affirmed. COURT OF APPEALS OF NEW YORK. DI SALVIO ข MENIHAN CO. ET AL.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -INJURIES "ARISING OUT OF AND IN COURSE OF EMPLOYMENT." Where an employee, engaged in marking shoe soles with a rubber stamp, while waiting for work crossed the room to bid good-by to a fellow employee who had been drafted, and while leaning on the fellow employee's bench caught his fingers in an unguarded cogwheel, the accident did not "arise out of or in the course of the employment," within the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -INJURIES “ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT." In order that an injury, within the Workmen's Compensation Act, may "arise out of and in the course of employment," it must be received while the workman is doing the duty he is employed to perform and also as a natural incident of the work flowing there from as a natural consequence and directly connected therewith. (For other cases, see Master and Servant, Dec. Dig. § 371.) Chase and Crane, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Third Department. Proceedings under the Workmen's Compensation Act by Angelo Di Slavio to recover compensation for the loss of fingers, opposed by the Menihan Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. From an order of the Appellate * Decision rendered, Jan. 7, 1919. 121 N. E. Rep. 766. |