for time necessarily spent in carrying out said provisions. All of said payments shall be in addition to all sums paid for compensation."

[1] There is nothing in the statements that the insurer would not pay money to the beneficiaries in Scotland, and that the insurer insisted in getting an administrator appointed, inconsistent with the existence of an estate of greater or less value which remained to be administered upon the death of the employee. This is all the record discloses, and manifestly is not sufficient to bring the appointment of the appellant administrator within the terms of the above act. If a legal representative was appointed to administer property left by the deceased employee, the insurer would not be held to reimburse that person for money paid for legal services rendered him in the recovery of the compensation which, under the statute is to be paid by him to dependents or other persons entitled thereto.

[2] We are of opinion section 13, supra does, not place such a burden upon the insurer in case a legal representative not otherwise necessary to be appointed is appointed to receive and distribute the compensation in accordance with "the provisions of this act," and that the duty placed upon the insurer by the terms of the statute is limited to the "necessary disbursements for such appointment, the necessary expenses of such legal representative, and reasonable compensation to him for time necessarily spent in carrying out" the provisions of the statute that, "if the payment is made to the legal representative of the deceased employee, it shall be paid by him to the dependents or other persons entitled thereto under this act."

Decree affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
SUFFOLK.

DOW'S CASE.

In re AMERICAN MUT. LIABILITY INS. CO.*

1. MASTER AND SERVANT – WORKMEN'S COMPENSATION ACT-BURDEN OF PROOF.

Burden was on deceased employees' dependents to prove alleged injury to employee was sustained while he was alive, and that death resulted therefrom, and that injury arose out of and in course of employment.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

2. MASTER AND SERVANT-WORKMEN'S

ACT-EFFECT OF EXPERT TESTIMONY.

COMPENSATION

Member of Industrial Board hearing workmen's compensation case, and the full board, were not bound to accept conclusions of medical witnesses as to whether employee was dead when he fell on a machine, or whether living, so that machine caused his death.

(For other cases, see Master and Servant, Dec. Dig. § 405 [4].)

* Decision rendered, Nov. 29, 1918. 121 N. E. Rep. 19.

3. MASTER AND SERVANT – WORKMEN'S

COMPENSATION

ACT-CAUSE OF DEATH-SUFFICIENCY OF EVIDENCE. Evidence held sufficient to sustain finding of Industrial Board that deceased employee was alive when he fell upon machine, so that machine caused his death.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].) COMPENSATION

4. MASTER AND SERVANT - WORKMEN'S ACT-PROXIMATE CAUSE OF DEATH.

Employee's fall upon machine was proximate cause of death, cause of fall being remote cause only, since fall itself placed employee's body in such relation with machine that neck was torn open and carotid artery severed.

(For other cases, see Master and Servant, Dec. Dig. § 374.)

5. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT "OUT OF AND IN COURSE OF EMPLOYMENT.” Where beam tender of tire fabric company, whose business it was to see that yarn was wound around revolving cylinder, was killed when he fell on machine, so that his neck was torn open and carotid artery cut, injury arose "out of and in the course of employment," within Workmen's Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 373.)

(For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act (St. 1911, c. 751, as amended by St. 1912, c. 571), by Lillian Dow, dependent mother of John Dow, employee, for compensation for his death, opposed by the American Tire Fabric Company, the employer, and American Mutual Liability Insurance Company, the insurer. Compensation was awarded, the award affirmed by the superior court, and from its decree the insurer appeals. Decree affirmed.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason and E. C. Stone, both of Boston, of counsel), for appellant.

Oscar H. Nelson and Horace I. Bartlett, both of Newburyport, for appellee.

PIERCE, J. The deceased employee was a beamer tender in the employ of the American Tire Fabric Company. As such, it was his business to see that yarn was wound around a revolving beam, or cylinder, which had a beam-head with a flat surface and an edge about fiveeights of an inch wide. Back of the beam upon which the yarn is wound is a roll four or five inches in diameter, which presses against the beam; and there is a long leverage which goes to the ceiling and there gives compressed leverage: Because of the pressure roll the beamer tender is never supposed to pass his hand across the yarn to see if it is running smoothly: If anything was wrong with the machine it was the duty of the employee "to put his foot on the treadle and stop the machine."

A few minutes before the accident the deceased, apparently all right, talked to his foreman in front of his machine. No one saw the accident. The machine was stopped almost immediately after the accident. The deceased was found with his left arm in the machine and his right arm outside the beam. "His left hand and arm were caught in and his right arm was lying outside "toward the large cam the other side of the

*

* "The carotids and jugular vein were severed. cogwheel.'" The windpipe was severed and all the muscles were 'pretty well torn.'” When the machine was reversed and the body removed, life was extinct. There was blood two or three feet away from the beamer "as if it was all one spurt," and a little blood on the machine. The body was embalmed, not by the usual process, but the fluid was put into the abdominal cavity which fluid more than offset the weight of blood lost. Two weeks after the death of the employee an autopsy was made. The physician who performed the autopsy testified;

"That the right lung was practically atrophied but there was function. The left lung nearly normal. The valves of the heart were shrunken. There was evidence of vegetations of the mitral valve. He did not make a miscroscopic examination of the lungs. He further testified that the diseased lung was one of the worst lungs he had ever seen. The left lung was the one that performed the function of the lungs, and from his examination he would have looked for endocarditis or myocarditis or possibly both. There was and has been endocarditis and that would involve the valves of the heart. Endocarditis would be an affliction of tuberculosis of the lungs, particularly in its late state. The vegetations found might cause aortis regurgitation. He further testified that a subject such as this, in the last stages of tuberculosis, would be toxic and stated that there would not be sufficient aspects in the lungs to give him the necessary oxygens to keep up an illuminative process. Dow, in his opinion, was dying on his feet and he did not and could not reason out how he could hold down a working position. It was his opinion that Dow's heart was weak and that further he was poorly nourished. In answer to the question whether from his autopsy he could say Dow was dead by the time he struck the machine,' the doctor testified that if there had been no injury as a result of the fall on the machine and Dow had been attacked, he would have expected at the time he performed the autopsy that the man was in the last stages of tuberculosis with a consequent affection of the heart and that he dropped dead, but having his throat cut there was a chance that he had a collapse as a result of his condition and fell and got his neck cut."

[1-3] Manifestly the burden of proof was upon the dependents to prove that the alleged injury to, and death of, the employee was sustained and resulted while the employee was alive, and that it arose out of and in the course of his employment. If believed upon the uncontradicted testimony of the two and only expert witnesses to the effect that, whether the boy was dead when he struck the machine or whether he was living and the machine caused his death, it is as reasonable to say one thing as another; and that whether or not he was dead at the time he struck the machine would be absolutely impossible for any doctor to say definitely, the member and the Industrial Accident Board warrantedly could have found that the solution of the question remained one of pure conjecture. But the member and the board were not bound to believe or to accept the conclusions of these witnesses; and they had the right, based upon reasonable inferences drawn from the facts established by the evidence before them, to find as they did that the employee was not dead when he fell upon the machine, but was living and the machine caused his death. The member and the board based that finding principally upon the fact that the evidence showing that there was a spurting of blood as far as three feet from the gash in the throat indicated the strength of the heart as alive and forceful at the time. Von Ette's Case, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641. See Sanderson's Case, 224 Mass. 558, 113 N. E. 355. We cannot say as matter of law the conclusion of the member and board was unsupported by the evidence.

[4] The insurer next contends that

"If the employee was alive when he struck the machine, the cause of

his fall was the proximate cause of death, and that cause is unknown and conjectural."

It is quite plain the cause of the fall was the remote cause, and that the fall itself was the dominant and proximate cause which placed the body of the employee in such relation to revolving parts of the machine that the edge of the beam-head pressed against the neck of that person in such manner as to sever the carotids, tear out the neck and cause death. Bohaker v. Travelers' Ins. Co., 215 Mass. 32, 35, 102 N. E. 342, 46 L. R.A. (N. S.) 543, and cases cited.

[5] The insurer finally contends that the fall did not arise out of the employment. Indisputably the injury occurred during the course of the employment, and the fall into the machine was from the front of the machine where the employee was standing in the active performance of his duty.

The real question is not so much the cause of the fall or whether the fall as such arose out the employment, but whether the risk and harm of a fall into or upon machinery then in use by an employee are incidents of that business and hazards to which the workman would have been exposed apart from that business. McNichol's Case, 215 Mass. 497, 499, 102 N. E. 697, L. R. A. 1916A, 306; Wicks v. Dowell, [1905] 2 K. B. 225. We think the injury arose out of and in the course of the employment. Brightman's Case, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A, 321; Mooradjian's Case, 229 Mass. 521, 118 N. E. 951; Hallett's Case, 230 Mass. 326, 328, 119 N. E. 673.

Decree affirmed.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
SUFFOLK.

WEATHERBEE'S CASE.

In re MASSACHUSETTS BONDING & INS. CO.*

1. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACT-FINDINGS OF ACCIDENT BOARD-FINALITY.

Findings of Industrial Accident Board on all questions of fact, under Workmen's Compensation Act, pt. 3, § 11, as amended by St. 1912, c. 571, § 14, are final, and cannot be set aside, if there is any evidence to support them.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

2. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-INJURY IN COURSE OF EMPLOYMENT—QUESTIONS OF FACT.

Whether deceased servant received injury which caused his death, and whether injury arose out of and in course of employment, were questions of fact for Industrial Accident Board.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].) * Decision rendered, Nov. 27, 1918. 120 N. E. Rep. 845.

3. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACT-FINDING AS TO CAUSE OF DEATH-CONFLICTING EVIDENCE.

Where, on question whether deceased servant's death was caused by strain of swinging heavy sledgehammer, thereby injuring and weakening an already diseased heart, or was matter of speculation and conjecture, evidence was conflicting, finding of Industrial Accident Board must stand.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Bertha H. Weatherbee for compensation for the death of her husband, Amos Weatherbee, the employee, opposed by the Town of North Attleboro, the employer, and the Massachusetts Bonding & Insurance Company, the insurer. Claim for compensation was dismissed, denial affirmed by the superior court, and from its decree the claimant widow appeals. Decree affirmed.

The medical testimony as to the cause of death was as follows:

Dr. Willis L. Hale testified that he is a practicing physician, having practiced in Attleboro for 16 years. He was called to the Smith street crusher in North Attleboro on August 5, 1916, to attend Amos Weatherbee. He found him dead, lying flat on his back amongst some stones, and there was a hammer by his side. The men told him that there was no struggle, but that he collapsed. He was pretty well blanched out, completely relaxed and still warm. There were no bruises on his head. arms or legs. He examined his eyes and found them dilated. Upon examining the wrist for his pulse, he found the arteries were hard, or sclerotic. He decided then that Mr. Weatherbee had died of acute heart · failure. After listening to the testimony this morning, from what the men told him at the crusher at the time of his death, and from his examination, he should say that Amos Weatherbee had died of acute dilatation of the heart, evidently from exertion. He should say that the arteries were sclerotic; they had probably weakened the heart, and that exertion of swinging a heavy sledgehammer might have caused acute dilation or heart failure. He has heard no evidence this morning at the hearing of any other cause for death in this case; the conditions did not show apoplexy or anything of that sort, and he probably would have lived if he had not swung the hammer.

Under cross-examination, Dr. Hale testified that he had never specialized in diseases of the heart. The conditioning of hardening of arteries in the wrist that he found in Mr. Weatherbee would be apt to indicate that the other arteries in the body were hard. He doubts if any one could tell absolutely whether Mr. Weatherbee died of acute dilatation of the heart or coronary sclerosis without a post mortem examination. But he does not think this man would have died so suddenly with coronary sclerosis; he would expect a history of trouble in such a case. he bases his opinion that Mr. Weatherbee died of acute dilatation of the heart because he collapsed when standing upright. The fact that Mr. Weatherbee was accustomed to lifting the sledgehammer does not alter his opinion that it was an extreme exertion at that time. If his condition was such as the doctor thinks it was, that is, one of general sclerosis of the arteries and enlarged heart, he was liable to drop dead any time he made the extra exertion. Enlarged heart usually accompanies hardening of the arteries.

Dr. Daniel J. Kiley testified that he was graduated from Tufts Medical School; he then went to St. Joseph's Hospital in Providence, and to the De Pau Hospital in South Carolina. He has been in general