pense with the necessity that the injury shall have been actually caused by an accident or occurrence in the course of employment.87

of a fellow workman with a hammer, and gout was brought on by the jar. Lloyd v. Sugg & Co., Ltd. (1900) 2 W. C. C. 5, C. A. Where a scullion, with an abnormally sensitive skin, sustained inflammation of the hands from washing crockery in hot water and soda. Dotzauer v. Strand Palace Hotel, Ltd. (1910) 3 B. W. C. C. 387. Where an osteo-arthritic condition existed prior to the accident, and the disability was thereby prolonged beyond a reasonable time for recovery from the injury, compensation could not be allowed for disability which could be attributed solely to the previous condition of osteoarthritis. Mullan v. Rogers, 2 Cal. I. A. C. Dec. 927.

87 An employé, overtaken while at work by a disability due to some unascertained internal disorder, not shown to have been caused by any accident or occurrence in the course of employment, is not injured within the act. In re Trammell, Op. Sol. Dept. of L. 244.

An employé had been away from his place of employment on an errand, and had returned, when suddenly, while watching his subordinate repair a warp, he fell to the floor unconscious. The employé had not been performing any act in the course of his employment; he had not made any undue exertion; he had not received any hurt or harm or injury; he had started to assist his loom fixer when he dropped to the floor, without warning of any kind, and died 20 minutes later. The medical examiner, and the physician who was called to attend him, diagnosed the case as heart failure. It was held that he died from natural causes and that his widow was not entitled to compenstion. Lightbrown v. American Mutual Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 243 (decision of Com. of Arb.).

Where continued disability followed the blowing of cement dust into the eyes of a workman previously suffering from trachoma, award could be made for a continued disability arising out of the disease of trachoma, which is highly infectious and ordinarily contracted without the intervention of any accident whatever, and is therefore not compensable. Beaushamp v. Chanslor-Canfield Midway Oil Co., 2 Cal. I. A. C. Dec. 510. Where a girl doing fairly heavy work, as a packer of dried fruit, suddenly suffers pain and is unable to continue at her work, and an X-ray shows a condition of cervical ribs existing from birth, which of itself ordinarily results in disability before the age of 30, and explains the nature of the disability suffered, there being no evidence of an accident causing the disability to come sooner than usual, compensation cannot be awarded. Nesselroad v. Castle Bros., 2 Cal. I. A. C. Dec. 529.

Where it appeared that the applicant had suffered from glaucoma of his eye several years before, and that this was a disease which was apt to recur at any time without warning, and without the victim's being able to specify

Nor does a disease which under any rational work is likely to progress so as to finally disable the employé become a "personal injury" merely because it reaches the point of disability while the work

any definite cause, and the evidence of an accident by getting glue or caustic soda in the eye was peculiarly indefinite, the disability was held due to disease, and not to an accident. Damerow v. Paine Lumber Co., Rep. Wis. Indus. Com. 1914-15, p. 34.

It has been held not to be personal injury by accident where a farm laborer was feeding corn into a machine by shoving a basket into a heap of corn on the floor, lifting it four or five feet, and tilting it into the hopper of the machine, and died of heart failure while so working (Kerr v. Ritchies [1913] 6 B. W. C. C. 419, Ct. of Sess.); where a workman, who had an advanced case of heart disease of long standing, felt a sudden pain when he was lifting a hutch onto the rails, and was compelled to quit work (Spence v. Baird & Co., Ltd. [1912] 5 B. W. C. C. 542); where an omnibus driver, who had heart disease, was sitting on his omnibus at the station, and fell to the ground and died, the judge finding from the conflicting evidence that death was caused by heart disease and not by the fall (Thackway v. Connelly & Sons [1910] 3 B. W. C. C. 37, C. A.); where a workman's heart was in a bad condition, and he collapsed at work and died the same day from angina pectoris (Hawkins v. Powell's Tillery Steam Coal Co., Ltd. [1911] 4 B. W. C. C. 178, C. A.); where a workman, who had progressive heart disease, died while he was rushing to the railway depot with a package for his employer (O'Hara v. Hayes [1910] 3 B. W. C. C. 586, C. A.); where an old rupture became strangulated while a farm steward was driving a sow across the rough moorland, and death took place later after an operation (Walker v. Murrays [1911] 4 B. W. C. C. 409); where a workman, who wore a truss and was employed at heavy work as a stoker, shortly after returning from his dinner hour in good health, was found to be in great pain and died soon afterwards from strangulated hernia (Scales v. West Norfolk Farmers' Manure & Chemical Co., Ltd. [1913] 6 B. W. C. C. 188, C. A.); where an old hernia became strangulated while a collier was at work, but there was no evidence of strain (Perry v. Ocean Coal Co., Ltd. [1912] 5 B. W. C. C. 421); where a collier, who was in an advanced stage of Bright's disease, told a fellow workman he had hurt himself, and went home, shortly afterwards dying of uræmia caused by Bright's disease (Ashley v. Lilleshall Co., Ltd. [1912] 5 B. W. C. C. 85, C. A.); where a collier, whose arteries were so diseased as to render apoplexy probable at any time, died in working hours while engaged in the heavy work of building a pack, but there was no evidence that death supervened during exertion (Barnabas v. Bersham Colliery Co. [1911] 4 B. W. C. C. 119, H. L., and 3 B. W. C. C. 216, C. A.); and where a workman with heart disease quit work, saying that he had strained his heart when he was turning a

89

is being done.88 Since it is only when there is a direct causal connection between the exertion of the employment and the injury that an award of compensation can be made, the material question to be determined is whether the diseased condition was the cause, or whether the employment was the proximate contributing cause. In the former case no award can be made; in the latter it ought to be made. Thus, where pre-existing heart disease of an employé is accelerated to the point of disablement by the exertion and strain of the employment, not due to the character of the disease acting alone or progressing as it would in any rational work, there may be found to have been a personal injury.00 Where it is impossible to determine how much of the disability is due to accident and how much to the pre-existing condition, the whole disability is compensable."1

heavy valve, but there was no other evidence of accident, and the judge, although disbelieving his evidence, awarded in his favor, there was not sufficient proof of accident (Beaumont v. Underground Electric Railways Co. of London, Ltd. [1912] 5 B. W. C. C. 247, C. A.).

88 In re Madden, 222 Mass. 487, 111 N. E. 379.

89 Id.

90 (St. 1911, c. 751) Id.; La Veck v. Parke, Davis & Co. (Mich.) 157 N. W. 72; In re Brightman, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A, 321; Weimert v. Boston Elev. Ry., 216 Mass. 598, 104 N. E. 360; Clover, Clayton & Co., Ltd., v. Hughes [1910] A. C. 242.

Where an employé, having an impaired heart, suffered further injury through muscular exertion required of her by her work, she was entitled to compensation. In re Madden, 222 Mass. 487, 111 N. E. 379.

91 Where a man past 60 years of age, weighing over 200 pounds, who for a considerable time had been in so vulnerable a condition that a comparatively slight injury would be followed by a relatively long period of disability, was actively disabled by the falling upon him of a heavily loaded wheelbarrow, which caused him to twist and sprain his ankle, this being followed by continuing disability, consisting of arterio-sclerosis, leg ulcers, varicose veins, eczema of the legs, and flat foot, leaving it impossible to determine clearly how much of such disability was proximately due to the accident and how much of it was due to the pre-existing condition, all of such disability is compensable, since the employer takes the employé as he finds him. Rouda & Spivock v. Heenan, 3 Cal. I. A. C. Dec. 36.

DIVISION IV.-PROOF

§ 99. Proof of accident

Under Acts making the occurrence of an accident a condition to the right to recover compensation and in cases where accident is relied on, proof of injury by accident is essential to the validity of an award. While proof which is as consistent with the theory of

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92 Englebretson v. Industrial Accident Commission, 170 Cal. 793, 151 Pac. 421. In Butler v. Sheffield Farms, The Bulletin, N. Y., vol. 1, No. 4, p. 11, compensation was denied where there was not sufficient evidence that claimant's fall was due to an accident.

The burden of proving that death was caused by accident rests on the party seeking compensation. Reimers v. Proctor Pub. Co., 85 N. J. Law, 441, 89 Atl. 931.

The burden of proof is upon an applicant for death benefits to establish the fact of accident. Holden v. Maryland Casualty Co., 1 Cal. I. A. C. Dec. 14; Lucien v. Judson Mfg. Co., 1 Cal. I. A. C. Dec. 59; Wallace v. Regents of University of California, 1 Cal. I. A. C. Dec. 97. The burden of proof is on the employé to show that the accident is the proximate cause of the disability, and where it appears clearly that the employé's condition prior to the accident was such that an operation for hydrocele would be beneficial and was contemplated by him, the fact that he had a fall from a ladder making such operation immediately necessary is not sufficient to place the burden of responsibility on the industry for the disability. Baine v. Libby, McNeil & Libby, 2 Cal. I. A. C. Dec. 433. Where the only testimony as to the occurrence of an accident is to the effect that the employé felt a pain in his finger and supposed a small sliver of steel from a tack had penetrated into it, but no foreign object could be found then, or thereafter when the finger became infected, such evidence is insufficient to establish the cause of the injury as penetration by such sliver of steel. The presence of such sliver is based upon assumption only. The burden of proof is upon the applicant, and is not fulfilled by this testimony. Seiberlich v. Buckingham & Hecht, 1 Cal. I. A. C. Dec. 372.

Sufficiency of proof of accident.-Where a gamekeeper handled an animal on August 5th which later died of anthrax, and on August 11th he himself fell ill of the same disease and died, it was held not proven that there was an accident. Sherwood v. Johnson (1912) 5 B. W. C. C. 686, C. A. In Lorenzo v. Bigelow-Hartford Carpet Co., 1 Conn. Comp. Dec. 216, it was held on conflicting evidence that the claimant had established by the preponderance

no accident as with the theory of accident is insufficient," proof of accident need not negative every other possibility, nor need it

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of the evidence an accident in his employment, consisting of the falling of an iron roller on his foot, causing a small bruise, resulting in tuberculosis of the bones. In Dube v. Clayton Bros., Inc., 1 Conn. Comp. Dec. 441, where the workman claimed to have sustained a rupture by falling against the corner of a tank, but the examining physician found no evidence of such an injury, and the other witness for the claimant testified he had been offered pay to testify that he saw claimant fall, though he did not, it was held the claimant's burden of proof was not discharged. In Palama v. Chase Metal Works, 1 Conn. Comp. Dec. 444, where a workman was found dead sitting on the floor in an apparently natural position, and it was shown that the electric current in an uninsulated wire from which claimant contended decedent was electrocuted had been shut off several hours before he met death, it was held the burden of proof was not discharged. In Beckster v. Pattison, 1 Conn. Comp. Dec. 61, where the claimant could show no specific time of injury, and could show nothing in his employment to which his blood poisoning was due, it was held that his claim was not established. The employer's report of the accident, made out by a representative of the insurance carrier, saying that the workman slipped and struck his side on the corner of a scrap box, was sufficient proof of an accident. Griffin v. A. Roberson & Sons, The Bulletin, N. Y., vol. 1, No. 10, p. 18.

93 McCoy v. Michigan Screw Co.; 180 Mich. 454, 147 N. W. 572, L. R. A. 1916A, 323; Hills v. Blair, 182 Mich. 20, 148 N. W. 243.

It has been held that the occurrence of an accident was not proved where a collier, who was obliged to work on his knees, died from blood poisoning resulting from an abscess in his knee, but there was no evidence as to how the abscess was really caused (Howe v. Fernhill Colliers, Ltd. [1912] 5 B. W. C. C. 629, C. A.); where a ship's stoker, while in the tropics, went from the stokehold into a coal bunker, and was found there suffering from heat apoplexy, which might or might not have been caused by exertion in his work (Olson v. S. S. Dorset [Owners of], [1913] 6 B. W. C. C. 658, C. A.); where a workman at work cried out that he had hurt his back (although no one saw what happened), and was taken to his home, in which he died a week later from intestinal obstruction (Farmer v. Stafford, Allen & Sons, Ltd. [1911] 4 B. W. C. C. 223, C. A.); where a ship's fireman slipped and complained of his knee, and was the next day found to be suffering from an old rupture

94 Although the burden of proof is on the applicant, it is not necessary for him, in proving the cause of death, to negative every other possibility of death by accidental means. W. R. Rideout Co. v. Pillsbury (Cal. Sup.) 159 Pac.