Where death resulted from lobar pneumonia caused by a game protector immersing his arm and shoulder in the water to remove a plug, while fixing a boat for winter quarters, his death was held to be due to an accidental injury. "Accident' meaning an unde signed and unforeseen occurrence of an afflictive or unfortunate character, and 'injure' meaning to harm, or to inflict damage or detriment. 9751

§ 233. Proof of Accident.-"It is settled by our decisions that before an employee is entitled to recover compensation he must establish the fact that he received an accidental injury which arose out. of and in the course of his employment." It was so held where an employee suffered a right inguinal hernia while assisting in lifting a heavy timber, but there was no evidence that he slipped or fell or was struck by the timber while lifting it. 53

"It is not necessary that some witness should testify to seeing an accident arising out of and in the course of employment, if it is shown in some way that while the employee is at work there has been a recent accident or some circumstances tending to show the fact. Peoria Cordage Co. v. Industrial Board of Illinois, 284 Ill. 90, 17 N. C. C. A. 245, 119 N. E. 996 (1918). "The employee is not required to prove the exact cause of his injury. It must happen in the course of his employment and it must arise out of it. These facts must not be left to mere surmise and conjecture; but

App. Div.

51. Christian v. State Conservation Commission, 1920, 182 N. Y. Supp. 347, 6 W. C. L. J. 199. Additional cases in which it was held that there did exist a causal connection between the injury and the pneumonia causing the workman's death.

Bayne v. Riverside Storage & Cartage Co., 181 Mich. 378, 148 N. W. 412; Zabriskie v. Erie R. Co., 86 N. J. Law, 266, 92 Atl. 385, L .R. A. 1917A, 315; Sexton v. Newark Dist. Telegraph Co., 84 N. J. Law, 85, 86 Atl. 451, affirmed 86 N. J. Law, 701, 91 Atl. 1070; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203; Jackson v. Erie R. R. Co., 86 N. J. Law, 550, 91 Atl. 1035; Delaware, L. & W. R. R. Co. v. Hardy, 59 N. J. Law, 35, 34 Atl. 986.

53. Tackles v. Bryant & Detwiler Co., 200 Mich. 350, 167 N. W. 36, 1 W. C. L. J. 1031; In re Henry C. Smith, 3rd A. R. U. S. C. C. 105.

it is not essential that he should prove the precise cause which produced the injury." Beans Case, 227 Mass. 558, 116 N. E. 826 (1917). The evidence and the inferences that may fairly and reasonably be drawn therefrom must sustain the finding of a compensable accident without the necessity of resorting to inferences drawn from other inferential facts.54

Where there was no direct proof of suicide, the presumption against it in favor of an accident is sufficient to sustain an award, where an elevator operator was found dead at the bottom of an elevator pit. 55

Where a seaman disappeared overboard from a deck that had a three and one-half foot railing around it, the court said that. in spite of the presumption against suicide, he was unable under the circumstances to infer "that death of the deceased was due to an accident."'53

It was held that the claimant had not sustained the burden of proving that deceased's hernia, from which he died arose out of the employment and was caused by some violent physical exertion and these facts could not be inferred from the mere fact that he was engaged in heavy work. The hearsay testimony of a fellow workman was held not competent.57

"It was not necessary for the dependent to exclude the possibility that her husband's death might have been due to an apoplectic shock, as suggested by the insurer but only to satisfy the board. by a fair preponderance of the evidence that it was due to a fall from the trestle. Such an external accident is indicated by all the facts and supported by the age and physical condition of the employee when seen a few minutes before he was found under the trestle." 58

54. New Castle Foundry Co. v. Lysher (Ind. App.) 120 N. E. 713. 55. Wishaless v. Hammond Standish & Co., 201 Mich. 192, 166 N. W. 993. Westmans Case 118 Me. 133, 106 Atl. Rep. 532, 4 W. C. L. J. 213, (1919) But see Grand v. Fleming Bros. Co., Ia.-, 176 N. W. 640, 5 W. C. L. J. 688.

56. Rourke v. Holt & Co. W. C. & Ins. Rep. 51 Ir. L. T. 121.

57. Chicago & A. R. Co. v. Industrial Bd. of Ill., 274 Ill. 336, 113 N. E. 629, 14 N. C. C. A. 542.

58. In re Uzzio 228 Mass. 331, 117 N. E. 349, 17 N. C. C. A. 255.

Accident cannot be proved by hearsay testimony alone.59 Proof of an accident must be based upon something more than a mere guess, conjecture or surmise, though it may be proved by circumstantial as well as direct evidence.60

"The record does disclose that the deceased sustained an injury, and during his disability received compensation; but it is further incumbent upon the claimant to show, by competent evidence from which fair inference could be drawn, that his death resulted from the injury. This the claimant has failed to do, and compensation for the death must therefore be denied.'

Where it was entirely a matter of conjecture as to whether an employee had fallen and suffered his injuries as a result of a slight dizziness that occasionally seized him, or had fallen over some nails, the court reversed the finding in claimant's favor.62

"When the employee dies at his post of duty, a presumption may reasonably be entertained that he was then performing his duty and engaged in the work for which he was employed, from which a causal relation between his employment and the accident may be inferred.'' 63

§ 234. Proximate Cause.-In so far as the disability of the employee is the natural consequence of the accident compensation should be awarded; but in so far as it is due to the "employee's

59.

60.

McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 Atl. 617. Peoria Ry. T. Co. v. Indus. Bd. of Ill., 279 Ill, 352, 116 N. E. 651, 15 N. C. C. A. 632; Ohio Building Vault Co. v. Indus. Bd. 277 Ill. 96, 115 N. E. 149, 14 N. C. C. A. 224; Swift & Co. v. Indus. Comm. 287 I. 564, 122 N. E. 796, 4 W. C. L. J. 35 (1919)

61. Perry v. Woodward Bowling Alley 196 Mich. 742, 163 N. W. 52, L. R. A. 1916 A, p. 133; Retmier v. Cruse (Ind. App.) 119 N. E. 32, 1 -W. C. L. J. 971.

62. Wilson v. Phoenix Furniture Co., 201 Mich. 531, 167 N. W. 839, 17 N. C. C. A. 785.

63. Hills v. Blair, 182 Mich. 22, 148 N. W. 243, Bemel etc. Co. v. Loper, 64 Ind. App. —, 117 N. E. 527; Papinaw v. Grand Trunk etc. Co., 189 Mich. 448, 155 N. W. 545; Wishcaless v. Hammond, 201 Mich. 192, 166 N. W. 933; Mailman v. Record F. & M. Co. 118 Me. 172, 106 Atl. 606, 4 W. C. L. J. 205, (1919).

own wilful refusal to submit himself to a safe and simple medical treatment," compensation should be denied.**

"The evidence was that an operation for the removal of a cataract is neither serious nor dangerous to an ordinary person in good health and a very large majority of such operations are successful. * The question was whether the total loss of sight was attributable to the accident, which caused the slow growth of a cataract, or to an unreasonable refusal to have the cataract, which caused the loss of vision, removed. * Under the

*

*

finding the loss of sight should be attributed to such refusal and not to the accident.” 65

"Before the defendant is to be charged, in law or morals, with the duty to compensate him, the claimant shall first discharge the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole. This, in our opinion, he has not done, and the defendant seems to have discharged the burden of proving that the claimant's refusal to submit to the operation to relieve him is unreasonable." 66

Where the result of a proposed operation was problematical the court held that it could not be said that the applicant acted in a willful, unreasonable or negligent manner, and therefore that compensation should not under the circumstances be reduced or terminated because of his failure to undergo the proper operation.67

"Under the law in force prior to the workmen's compensation act the principle was well established that a person injured by the negligence of another must use ordinary care to avoid aggravating or prolonging the effects of such injury, and that he

64. Lesh v. Illinois Steel Co., 163 Wis. 124, 157 N. W. 539, 15 N. C. C. A. 80.

65. Joliet Motor Co. v. Indus Bd. of Ill., 280 Ill. 148, 117 N. E. 423, 15 N. C. C. A. 75.

66. Kricinovitch v. American Car & Foundry Co., 192 Mich. 687, 159 N. W. 362, 15 N. C. C. A. 80.

67.

Marshall v. Ransome Concrete Co, 33 Cal. App. 782, 166 Pac. 846, 15 N. C. C. A. 82, Bruce v. Taylor & Maliskey, 192 Mich. 34, 158 N. W. 153.

cannot recover for an increase of disability caused by his failure to use such care. * An additional injury to McCay, caused by carelessly using his arm too soon, is as much a new injury not within the terms of the constitution or statute, as if it had occured by accident. The commision, upon the facts shown, was therefore without power to award compensation for the additional disability."8

Where there is conflict in the testimony as to whether the accident or some independent, intervening cause or disease is the proximate cause of the disability or death, and the industrial board finds as a fact that one or the other was the proximate cause that finding will not be disturbed by the court on appeal.69

Claimant's deceased fell in the course of his employment and sustained a severe fracture of his leg. Two days later he suffered an attack of delirium tremens, from which he died. It was contended that the delirium tremens and not the injury was the proximate cause of the death. The court said: "The fact that his system had been so weakened by his intemperate habit that it was unable to withstand the effects of the injury does not thereby shift the proximate cause of death from his injury to his intemperate habit." It appeared that the tremens would not have developed had it not been for the injury and the shock following it.70

Where particles of steel lodged in the eye of a lathe operator, and the eye became infected with gonorrhea, it was held that the loss of the eye was due to rubbing it with claimant's fingers on

68.

Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 Pac. 24, 15 N. C. C. A. 83.

69. Vogley v. Detroit Lumber Co., 196 Mich. 516, 162 N. W. 975, 14 N. C. C. A. 142; Linstendt v. Louis Sands Salt & Lumber Co., 190 Mich. 451, 157 N. W. 64, 14 N. C. C. A. 142; Deem v. Kalamazoo Paper Co., 189 Mich. 655, 155 N. W. 584, 14 N. C. C. A. 143; La Fleur v. Wood, 178 App. Div. 397, 164 N. Y. Supp. 910, 14 N. C. C. A. 143; Tanner v. Aluminum Castings Co., Mich. (1920), 178 N. W. 69, 6 W. C. L. J. 337; Jackson v. Indus. Comm., Cal. App. -, (1921), 191 Pac. 719.

70.

-

Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N. W. 1027, L. R. A. 1916F. 955, 14 N. C. C. A. 295.