§ 338. Influenza.-The California act (st. 1917, Subd. 4, sect. 3) defines "injury" as used in the act as including any injury or disease arising out of the employment. So where a hospital steward died of influenza contracted in the course of his employment, compensation was awarded even though an influenza epidemic was raging in the city and one out of every ten inhabitants contracted it. The medical testimony was to the effect that the danger of contracting the disease was from five to eight times greater among those exposed to it, as was the deceased, than among those not so exposed. This was held to be sufficient to justify the commission's finding that the injury arose out of the employment. 33

§ 339. Insanity.-An employee was injured in the course of his employment so that he was no longer able to follow his trade of boiler maker, but was capable of earning laborer's wages. He subsequently became insane. The court held that the employee was entitled to compensation for the partial disability caused by the accident arising out of the employment, saying: "We are of opinion that subsequent insanity does not deprive an employee of compensation due him under the provisions of the workmen's compensation act. Indeed the effect of subsequent insanity and the only effect of it is to make greater the employee's need to have that compensation which, apart from the subsequent disability, justice required the employer to pay him."34

An employee became insane subsequent to an injury arising out of the employment, because of a syphlitic condition existing prior to the injury. It was contended that there was no causal connection between the injury and the insanity. The court held that the insanity was proximately due to the accident. See quotation from the opinion in this case, "Insanity," § 210 ante note 85.35

33. City etc. of San Francisco v. Indus. A. C. of Cal., Pac. 26; Engels Copper Mng. Co. v. Ind. Comm. of Calif., Cal. 192 Pac. 845, 6 W. C. L. J. 624.

Cal.

191

34. In re Walsh, 227 Mass. 341, 116 N. E. 496, 15 N. C. C. A. 345. 35. In re Crowley, 223 Mass. 288, 111 N. E. 786, 15 N. C. C. A. 345.

A motorman, as the result of a collision, received a shock, which caused insanity. It was held that the insanity was due to the accìdent arising out of the employment.36

§ 340. Intoxication.—An ice wagon driver asked to be relieved from his duties because he was too drunk to finish the deliveries. Another employee was sent out, and decedent started for home. Later another employee coming from a small building on the deck said that he saw a pair of feet disappearing over the edge of the dock. Later in the day the body of decedent was taken from the river. The state industrial commission found that death was due solely to intoxication. In affirming the award, the court said: "Section 21 of the Workmen's Compensation Law (Consol. Laws, c. 67) provides that, in the absence of substantial evidence to the contrary, it shall be presumed that 'the injury did not result solely from the intoxication of the injured employe while on duty,' but in this case there was such substantial evidence. Indeed, the evidence was preponderating that the decedent was staggering drunk at the very time of the accident, and all of the known facts point to this as the proximate cause of the death."'37

A janitor was found at the bottom of a stairs with his skull fractured, from which he died. There was evidence that on the evening in question he was sober. It was sought to show that deceased was a habitual drunkard, and that he came to the building drunk on the evening in question. The court held that the finding of fact was within the province of the board and it would not be disturbed. Therefore a finding that the death was due to an accident arising out of the employment, was affirmed.38

36. McMahon v. Interborough Rapid Transit Co., 5 N. Y. S. Dep. 371. Note: see § 210 ante.

37. Trouton v. Sheehy Ice Co., (1919), 187 App. Div. 818, 176 N. Y. S. 45, 4 W. C. L. J. 292; In re Joseph Culberson, 2nd A. R. U. S. C. C. 224; In re Geo. W. Seegers, 2nd A. R. U. S. C. C. 224; In re Pope, 163 N. Y. S. 655, B. 1 W. C. L. J. 1389.

38. Lefens v. Indus. Comm., 286 Ill. 32, 121 N. E. 182, 3 W. C. L. J. 246; Great Lakes Dredge & Dock Co. v. Totzke, Ind. App. -, (1919), 121 N. E. 675, 3 W. C. L. J. 448; State v. District Court of Meeker County, 128 Minn. 221, 150 N. W. 623; Pierce v. Bekins Van and Storage Ia. —, 172 N. W. 191, 4 W. C. L. J. 78.

Co.,

A hospital employee, whose duties included overseeing of several jobs, was found at the bottom of a flight of stairs with injuries which resulted in his death. It was contended that the death was not due to an accident, but to intoxication. The court on appeal, in affirming an award, said; "The finding that the deceased was not so intoxicated as to take him out of the course of his employment, and that the injury causing his death did not result directly from his intoxciated condition, must be sustained. If he had been in such a state of intoxication as to totally incapacitate him from performance of his work the injury and death might properly be said to arise out of his condition rather than his employment. Before drunkenness can be said to bar a recovery under the Workmen's Compensation Act the employee must be so intoxicated, as shown by the evidence, that the court can say, as matter of law, that the injury arose out of his drunken condition, and not out of his employment. Frith v. Owners of Steamship Louisiana, 2 K. B. 155; 5 B. W. C. C. 410; O'Brian v. Star Line, 45 Scotch L. T. 935, 1 B. W. C. C. 177. When ever an employee is so drunk and helpless that he can no longer follow his employment, he cannot be said to be engaged in his employment, and when injured while in that condition his injury does not arise out of his employment. But intoxication which does not incapacitate the employe from following his occupation is not sufficient to defeat the recovery of compensation, although, the intoxication may be a contributing cause of his injury. Our statute was not designed to make contributory negligence of the employee, or a defense of that nature, a bar to his recovery under the Workmen's Compensation Act, where, as in this case, his injury arose out of and in the course of his employment. Alexander v. Industrial Bd., 281 Ill. 201, 117 N. E. 1040.''39

Where a night watchman, when intoxicated, left his work and went to a room with intent to sleep, lighted a gas heater, closed the door and windows, and laid down on a bench, where he was asphyxiated by gas, it was held, on appeal from the award of the

39. Hahnemann Hospital v. Indus. Bd. of Ill., 282 Ill. 767, 1 W. C. L. J. 754; Hartford Indem. Co. v. Durham, -, (1920), 222 S. W. 275, 6 W. C. L. J. 395.

316, 118 N. E.

Tex. Civ. App.

commission, that the death was not due to any accident incident to the employment or arising out of the employment. The court said: "And we may remark that the uncontradicted evidence in this case indicates, if we are to choose between the conflicting specu-lative deductions, that on the night in question the deceased willfully stepped aside from the performance of the duties which his employment laid upon him and invited by direct action on his part the occurrence of the detrimental causes which produced his death. In our opinion, the conclusion of the commission is not supported by sufficient evidence. "'+0

9740

Where the evidence showed a conflict in the testimony as to whether or not deceased was intoxicated at the time of the injury, it was held that it was not error to fail to find that deceased was intoxicated, for such ruling was necessarily included in a finding that the accident arose out of the employment.11

"Defendants insist that the injury sustained by Nels Parson was due to his willful negligence and to intoxication. The act expressly provides that the burden of proof to establish willful negligence on the part of an injured employee is on the defendant. In the present case defendants introduced no testimony, and there is no proof of such negligence before us. Some testimony was brought out on cross-examination, showing that plaintiff's son was intoxicated to some extent when he was injured; but it is nowhere shown that his intoxication in any way contributed to his injury, and without proof we will not assume that it did. ''42

The court, in a Massachusetts case, in passing upon the question of intoxication as a defense, said: "Where, therefore, the intoxication of the injured employee is relied on as a defense, it must be made to appear that the injury-that is to say, the accident which resulted in the injury for which compensation is sought-was

40.

Roebling Sons & Co. v. Indus. Comm. 36 Cal. App. 10, 171 Pac. 987, 2 W. C. L. J. 38; In re Gilbert, 14 Ohio Law Rep. 164, 13 N. C. C. A. 497. 41. Napoleon v. McCullough, 89 N. J. L. 716, 99 Atl. 385, 16 N. C. C. A. 754.

42. Parson v. Murphy, 101 Neb. 542, 163 N. W. 847, 16 N. C. C. A. 174; National Council of Knights and Ladies of Security v. Wilson, 147 Ky. 296, 143 S. W. 1000; Hartford Acc. and Indem. Co. v. Durham, Tex. Civ. App. -, (1920), 222 S. W. 395, 6 W. C. L. J. 275.

W. C.-54

caused solely and exclusively by the intoxication of such employee. ''43

Where the employee had no intention of becoming dangerously and helplessly intoxicated, he is not necessarily barred from compensation, even though the injury was proximately caused by the intoxication. It did not constitute wilful misconduct within the meaning of the Wisconsin Act.**

It is serious and wilful misconduct for a man to be drunk at his work, under the English Act, but where death ensues, the fact that decedent was intoxicated may be disregarded when considering whether the accident arose out of the employment."

Where habitual intoxication so weakens the system that it is unable to withstand the effects of an accidental injury arising out of the employment, this fact does not shift the proximate cause of death from his injury to his intemperate habits. So where an employee developed delerium tremens and died following an injury, it was held that the death was due to the accident arising out of the employment.46

Where an employee was taken to the entrance of a garage and told to go home because he was too intoxicated to work, and was later found fatally injured in an elevator shaft, his injury did not arise out of the employment."

§ 341. "Ivy Poisoning".-A section hand, who was cutting grass and removing poison ivy and other weeds from along the

43. American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Atl. 999, 14 N. C. C. A. 291; Collins v. Cole, 40 R. I. 66, 99 Atl. 830, 14 N. C. C. A. 290; In re Pope, 163 N. Y. S. 655, 14 N. C. C. A. 293; McIntyre v. Stewart, (1915), W. C. & Ins. Rep. 550; Frith v. Louisiana, (1912), 2 K. B. 155, 9 N. C. C. A. 262, (1912), W. C. Ins. Rep. 285, 81 J. K. B. 701; Murphy & Sandwith v. Cooney, (1914), 2 Ir. R. 76, 9 N. C. C. A. 263, (1914), W. C. & Ins. Rep. 44, 48 Ir. L. T. R. 13; In re Von Etta, 223 Mass. 56, 111 N. E. 696.

44. Nekoosa-Edwards Paper Co. v. Indus. Comm., 154 Wis. 105, 141 N. W. 1013, 3 N. C. C. A. 661.

45. Williams v Llandudno Coaching Co. Ltd., (1915), 2 K. B. 101, 9 N. C. C. A. 245.

46. Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N. W. 1027, 14 N. C. C. A. 295; Connell & Co. v. Barr, 116 L. T. 127 (1904).

47. Emery Motor Livery Co. v. Indus. Comm., N. E. 143, 5 W. C. L. J. 658.

Ill. (1920), 126