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of, the court held that the death was proximately due to an accident arising out of and in the course of the employment.43

Evidence that a hostler died of anthrax, which resulted from infection through a boil in his nose, without proof that he came in contact with any diseased animal, except a lame horse, is insufficient to show that the disease was contracted in the course of his employment."

§ 301. Appendicitis.-Where an employee was kicked in the stomach by a mule, and later the employee was operated on in a hospital for appendicitis and death resulted from general peritonis following an acute attack of appendicitis, the board found that the death was due to the kick in the stomach, and therefore was the result of an accident arising out of and in the course of the employment. On appeal the court held that in view of such finding the burden of proving that it did not so arise rested on the employer.45

Where an employee slipped while climbing out of a prism of a barge canal, striking his abdomen and injuring a diseased appendix, and the fall caused an acute exacerbation thereof, producing a rupture, from which acute peritonitis developed and caused his death, it was held that the injury was due to an accident arising out of the employment.46

Where a collier complained of being accidently hurt by coal rolling down against him from a pile as he was filling baskets of coal, and later he died of appendicitis and a rupture of the bowels, the court held that the evidence was sufficient to establish

43. Eldridge v. Endicott-Johnson & Co., 177 N. Y. Supp. 863, (1919), 4 W. C. L. J. 621, 189 App. Div. 53. This case was reversed on appeal, App. Div. 126 N. E. 254, 5 W. C. L. J. 716.

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44. White v. American Society for the Prevention of Cruelty to Animals, App. Div. -, (1920), 180 N. Y. Supp. 867, 5 W. C. L. J. 874. Note: See same title in chapter on Accidents.

45. Jewel Tea Co. v. Weber, 132 Md. 178, 103 Atl. 476, 17 N. C. C. A. 252, 2 W. C. L. J. 87.

46. Lindquest v. Holler, 164 N. Y. Supp. 906, 178 App. Div. 317, 14 N. C. C. A. 432. Stolte v. N. Y. State Sewer Pipe Co., 179 N. Y. App. Div. 949, 165 N. Y. S. 1114.

that the employee was suffering from a diseased condition which was aggravated by the accidental injury, and the death was proximately due to an injury arising out of the employment.*

In an action to recover compensation for appendicits alleged to have been caused by a severe shaking during the course of employment, it was held that the appendicits was directly traceable to an accidental injury arising out of the employment.48

An employee received an electric shock in the course of his employment, and a doctor testified that his subsequent death was due to septic peritonitis, caused by a lesion of the intestines resulting from the electric shock. But the commission held that the preponderance of the evidence tended to establish that the death was proximately caused by acute appendicitis, and therefore was not due to an accident arising out of and in the course of the employment.49

A carpenter strained himself while lifting a radiator weighing 300 pounds. A physician testified that his subsequent death was due to the strain causing intestinal obstruction and appendicitis. It was held that the injury arose out of the employment.50

§ 302. Apoplexy.-Claimant was engaged in placing heavy barrels in tiers in a cooler. After lifting a heavy barrel he complained of a severe pain in his head, and was seized with a stroke of apoplexy. It was contended that the injury suffered was not due to an accident arising out of the employment, but was the natural result of an inherent physical defect which manifested itself while claimant was pursuing his regular employment. The court held that claimant had sustained an accident, and that the accident arose out of and in the course of employment.51

An employee engaged in making bullion suffered from paralysis due to a cerebral hemorrhage and rupture of a small blood

47. Woods v. Wilson Sons & Co. Ltd., (1915), W. C. & Ins. Rep. 285, 8 B. W. C. C. 288, 10 N. C. C. A. 759.

48.

49.

Enman v. Dalzil, 50 Scot L. R. 143, 6 B. W. C. C. 900.
Merriman v. Scovill Mfg. Co., 1 Conn. C. D. 596.

50. McGuigan v. Maryland Casualty Co., 1 Mass. I. A. Bd. 438.
51.

Fowler v. Risedorf Bottling Co., and In re Zurich General Accident & Liability Ins. Co., Ltd., 175 N. Y. App. Div. 224, 161 N. Y. S. 535, 14 N. C. C. A. 533.

vessel in the brain, brought on by long hours of work and excessive heat. It was contended by defendant that the bursting of the blood vessel was due to a clogging of the blood vessel which resulted from a diseased condition of the arteries. The applicant contended that it was due to a diseased condition of the arteries which would likely result in a bursting of the blood vessel when subjected to the unusual risk of long hours of work and the excessive heat, and that claimant intended to do the long hours of work, but that in doing so he did not anticipate that his blood pressure would be so increased as to result in a rupture of a blood vessel. The court held that the paralysis was due to the bursting of the blood vessel, which bursting was caused by, the unusual conditions under which claimant was compelled to work. Therefore the injury was proximately due to an accident arising out of and in the course of the employment.52

A collier, who was performing heavy work, was suddenly siezed with apoplexy and died, and there was evidence that the arteries were in such a degenerated condition as to be likely to rupture at any time. The evidence was equally consistent with a finding that an accident did or did not happen and the court held that the onus of proving that an accident occurred in the course of and arising out of the employment had not been discharged.53

An employee, whose duties included prompt action on his part in case of accidents, died from apoplexy while rushing to the scene of an accident to an employee who was not in the employment of his employer but who was performing work on his employer's premises. The court found that decedent's duties included his prompt attendance, in cases of any accident occurring in the works, either personally or by telephonic communication with a doctor. Therefore decedent did not put himself outside of the scope of his employment in going to the aid of the injured employee.54

52. La Veck v. Park Davis & Co., 190 Mich. 604, 157 N. W. 72, 12 N. C. C. A. 325.

53. Barnabas v. Bersham Colliery Co., 103 L. T. 513, 55 Sol. J. 63, 4 B. W. C. C. 119, 7 N. C. C. A. 651.

54. Aitken v. Finlayson, Bousfield & Co., Ltd., (1914), W. C. & Ins.

W. C.-48

The applicant, a fireman employed on a steamer while in the tropics, went to work in a coal bunker where the heat was intense. Later he was found outside the bunker in a fit which according to the medical testimony resulted from a hemorrhage, but nothing was said to the effect that the hemorrhage was caused by an accident arising out of the employment. The arbitrator found that the hemorrhage did not result from an accident arising out of the employment, and, there being evidence to sustain his finding. it was not disturbed on appeal.55

Where an employee, engaged in chasing thieves who were carrying off his employer's property, died from apoplexy brought on by the overexertion, it was held that the accident arose out of and in the course of his employment. "It is intimated in the report of the Chief Medical Examiner that had the decedent been in good physical condition he would not have died from the effects of exertion. Assuming this to be true from a medical standpoint, the fact remains that he did die, that the cause of his death. was cerebral hemorrhage or apoplexy and that it was brought on by overexertion. While the decedent's physical condition may have been and doubtless was partly responsible for his death, it was the exertion and excitement engendered by the pursuit of the two theives which really caused the decedent's death. ''56

Apoplexy occurring in the absence of an accidental injury aggravating a pre-existing diseased condition or bringing on the apoplexy as a direct result of the injury, cannot be said to be a personal injury arising out of the employment.57

A fireman fell from the cab of a locomotive and later died as the result of a hemorrhage of the brain. He had a predisposition to apoplexy. It was held that there was sufficient evidence to justify the board in finding that the death was due to the acciden

Rep. 398, (1914), 2 Sc. L. T. 27, 51 Sc. L. R. 653, 7 B. W. C. C. 918, 10 N. C. C. A. 485.

55. Olson v. "Dorsett" (Owners of), (1913), W. C. & Ins. Rep. 604, 6 B. W. C. C. 658.

56. In re Fair Ohio Ind. Comm., (1914), 7 N. C. C. A. 651.

57.

Ledoux v. Employer's Liab. Assur. Corp., 2 Mass. I. A. Bd. 493.

tal fall, and therefore due to an accident arising out of the employment.58

§ 303. Apprentice.-A minor was employed as an apprentice to learn to run, an electric elevator. He had no license, so he was placed under the tutelage of a regular operator. After a weeks experience he operated the elevator alone and took the elevator to a certain floor, left it, and went on an errand. During his absence the elevator was moved, and when he returned he stepped through the door and fell, sustaining injuries. He settled with his employer and his settlement was approved by the district court. His father brought this action, regarding the settlement as a nullity, claiming that the relation of master and servant did not exist between the minor and the defendant, because the employment was illegal, in that the minor was prohibited by law from operating the elevator without a license. In affirming a judgment of dismissal, the court held that, as the minor was working as an apprentice, his employment was not illegal because he had no license, and on this question the court said: "This disposes of the case, though we may add in conclusion that section 34 of the compensation act (section 8230, G. S. 1913), by which the statute is made applicable to minors 'who are legally permitted to work under the law of this state,' was intended to exclude from the statute minors whose employment is prohibited by law. Section 3848, 3871, G. S. 1913. Plaintiff's son was not in this class. He lawfully could be employed in this sort of work, if qualified and possessing the necessary license. ''50

Where an apprentice suffered a mutilation of his hand, and afterward secured work at reduced compensation, but was discharged for misconduct, the court refused to terminate compen

58. Peoria Railroad Terminal Co. v. Industrial Board, 279 Ill. 352, 15 N. C. C. A. 632, 116 N. E. 651; State ex rel Geo. D. Taylor & Sons v. District Court of Ramsey Co. -Minn. -, (1920), 179 N. W. 217, 6, C. L. J. 698.

Note: For the Courts opinions pertaining to the accident phases of the foregoing cases see the same cases § 142, ante.

59. Pettee v. Noyes, 133 Minn. 109, 157 N. W. 995, 15 N. C. C. A. 727.

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