95

be direct and positive. It may rest on circumstances. Thus, where a person is found dead, the law imparts to the circumstances

(Clarkson v. Charente Steamship Co., Ltd. [1913] 6 B. W. C. C. 540, C. A.); and where a workman, who had been climbing a steep path, was covered with mud, as if he had had a fall, complained of pain, and went home to bed, and died later, after vomiting, from an old hernia, which was not down when he went home, but came down after the vomiting (Marshall v. Sheppard [1913] 6 B. W. C. C. 571, C. A.).

95 Heileman Brewing Co. v. Shaw, 161 Wis. 443, 154 N. W. 631. An employer, in order to dry out an empty beer tank, burned in it 10 pounds of charcoal. Ten hours afterwards an employé went into the tank to clean it, and in a few minutes was found unconscious, and shortly thereafter died. The autopsy disclosed all the signs of carbon monoxide poisoning and no other injuries. The evidence showing that carbon monoxide would be produced and remain in said tank under such circumstances, it was held that the employé was killed by accidental poisoning. Markt v. National Brewing Co., 2 Cal. I. A. C. Dec. 881. Where an employé, whose duties as a night watchman of the warehouse and wharves of the employer, requir ed the keeping up of steam in boilers, the making of regular rounds about the plant, and other duties, was found missing in the morning on the arrival of the other employés, no steam in the boilers, his lantern still burning, the electric lights not turned off, a card indicating 12 o'clock as the last hour on which the watchman made his rounds, the gates open, suspicious footprints about, two suspicious characters known to have been about, a pool of blood on the wharf, and a trail of blood to the edge, the torn cap of the watchman in the blood, a complete disappearance of the body of the watchman, no evidence whatever of any reason but the death of the employé to account for his disappearance, this evidence was held sufficient to warrant a finding that the employé was killed on the night in question. Shea v. Western Grain & Sugar Products Co., 2 Cal. I. A. C. Dec. 550.

Where the employé, a watchman, was found at the foot of a stairway in his employer's plant, with a lantern near him which he had carried on his rounds, this fact, together with the employer's report of accident that the injuries were supposed to have been caused by a fall from the stairway, was sufficient proof of an accident. Fogarty v. National Biscuit Co., The Bulletin, N. Y., vol. 1, No. 6, p. 9.

Circumstances held sufficient proof of accident: Where deceased was found lying under a train of cars with a hole about six inches in diameter in his abdomen. De Fazio v. Goldschmidt Detinning Co. (N. J. Sup.) 88 Atl. 705. Where a workman employed in building a bridge over a river near its outlet was last seen alive at his home some miles from his work, and his dead body was later found in the bay, there being no evidence as to how he met death. Steers v. Dunnewald, 85 N. J. Law, 449, 89 Atl. 1007. West Virginia. Where a

96

the prima facie significance that death was caused by accident rather than by suicide. This presumption persists in its legal force until overcome by evidence. The existence of an accident cannot, however, be inferred without some substantial basis for the inference, nor can it be established by evidence which is merely

97

workman in previous good health discovered, two days after an unusually heavy lift in the course of his work, that he was ruptured, and died from a surgical operation to relieve it; the operating surgeon saying that the rupture was caused by a lift. Poccardi v. Public Service Commission, 75 W. Va. 542, 84 S. E. 242, L. R. A. 1916A, 299. Wisconsin. Where a workman in a brewery, part of whose duty was to clean up after the day's work and to turn on steam in certain machines, was found injured and unconscious on the floor of the basement of the building, and afterward died. Heileman Brewing Co. v. Shaw, 161 Wis. 443, 154 N. W. 631. California. Where a deck hand on a steamboat, so loaded as to make it convenient to go forward by walking along the narrow side rail, after being seen to go forward, was next seen in the water, drowning, there being no evidence of any reason for suicide. Olsen v. Hale, 2 Cal. I. A. C. Dec. 607. England. Where a healthy workman, working in the hold of a ship, came up the ladder in great pain, and was sent home, where it was found that he had marks on his ribs, and later developed pneumonia and died. Lovelady v. Berrie (1910) 2 B. W. C. C. 62, C. A. Where a workman, apparently in good health, was found injured after moving some very heavy glazed sinks, and after a fortnight returned to work, but still complained of a pain in his back, and some months after died in a hospital from a fracture of one of the lumbar vertebræ. Hewette v. Stanley Bros. (1913) 6 B. W. C. C. 501, C. A. Where a sailor, who went on deck at night to get fresh air, was found next morning in the water, dead. Marshall v. Owners of Ship Wild Rose (1910) 3 B. W. C. C. 514, H. L., and 2 B. W. C. C. 76, C. A.

96 Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 150 N. W. 998.

Where it is not clear concerning a condition or an existing state of facts that may be material, and relates to the manner in which an injury occurred, the presumption is that it was accidental. Hanson v. Commercial Sash Door Co., Bulletin No. 1, Ill., p. 30.

97 It is not sufficient to think this or that is probable. There must be practical probability. Howe v. Fernhill Collieries, Ltd. (1912) 5 B. W. C. C. 629, C. A.

It is necessary that proof of an accident be reasonably clear, and where a baker found to have a hernia attributed it to a strain occurring while he was lifting a truck load, at which time he claimed to have felt a pain, but he said

hearsay," or, as a general rule, by uncorroborated statements of the injured workman."" For corroborative testimony to be sufficient, it must be direct and substantial,1 but it may consist of state

nothing about it to his fellow workmen and continued to work for over a month thereafter, it was not proven that the hernia resulted from the strain alleged. Vogler v. M. Carpenter Baking Co., Rep. Wis. Indus. Com. 1914-15, p. 35. Where there was nothing extraordinary in the employé's work at the time of the strain alleged to have caused a hernia, nothing unforeseen or fortuitous happened to him at that time, and the pain was not serious, but only sufficient to call his attention to his condition, an accidental injury was not established. Toennes v. Milwaukee Electric Ry. & Light Co., Rep. Wis. Indus. Com. 1914-15, p. 26. Where the strain alleged as the cause of a hernia was of a slight and insignificant character, and resulted in only slight pain, not causing a cessation in work, and came while the workman was engaged in doing an ordinary task not at all strenuous, the accident—that is, an incident of sufficient moment to develop the hernia-was not established. Drolshagen v. Milwaukee Pattern & Mfg. Co., Rep. Wis. Indus. Com. 1914-15, p. 25.

Where a delivery boy, after several falls from his bicycle, is operated upon for hydrocele, the existence of which was observed by the physician at the time of the first accident, the physician testifying that it was then admitted as having existed before that, the proof of accident origin was insufficient. Young v. Paris, 2 Cal. I. A. C. Dec. 518.

98 In this proceeding to review an award of compensation it is held that the award must be annulled, for the lack of proof that the injury was accidental, since the only testimony in proof of the accident was hearsay. Employers' Assur. Corp., Ltd., v. Cal. Indus. Acc. Com., 2 Cal. I. -A. C. Dec. 453, 170 Cal. 800, 151 Pac. 423; Englebretson v. Indus. Acc. Com., 2 Cal. I. A. C. Dec. 449.

99 In the proceeding to review an award allowing compensation to a wife for the death of her husband, there was no proof that the injury resulting in death was accidental, where the only proof was the hearsay statements and explanations of the deceased. Employers' Assur. Corp., Ltd., v. Cal. Indus. Acc. Com., 2 Cal. I. A. C. Dec. 452, 170 Cal. 800, 151 Pac. 423.

Where the workman's own description of the accident differed materially in his notice of accident, his claim, and his testimony, he made no claim until after leaving the defendant's employ, his evidence was unsupported, and the motormen on his car denied any knowledge of the happening of any accident, it was held there was not sufficient proof of accident. Graf v. Brooklyn Rapid Transit Co., The Bulletin, N. Y., vol. 1, No. 6, p. 9.

1 Where the workman had told various persons that he did not know whether the injury to his finger had been caused by a passing wheelbarrow

ments made by him to his fellow workman near the time of the Occurrence, especially when they are in accord with the reports of a medical expert. In a case wherein the evidence as to the happening of the alleged accident and as to the nature of what happened at the time was equally divided, and conflicting in both fact and credibility, it was held that expert and unprejudiced medical advice corroborating the probability of applicant's testimony authorized a decision in favor of the applicant. That the workman, as frequently happens, is mistaken or confused as to the date of injury, does not invalidate his claim. A prima facie case may, of course, be rebutted by proof that the injury was not accidental.

or handling a hammer, and his claim of injury by a wheelbarrow, although corroborated by two fellow employés, is doubtful because of the location of the injury this evidence is insufficient to prove an industrial accident. Nicoletti v. Penn. Mining Co., 2 Cal. I. A. C. Dec. 347.

2 When an employé claims to have fallen and bruised himself, returning to work the next day, infection thereafter setting in and causing disability, the uncontradicted testimony of two fellow workmen that he told them of his fall at the end of the day of the accident is sufficient corroboration of his story to prove the accident. Bridgewood v. Union Iron Works Co., 2 Cal. I. A. C. Dec. 599.

3 Where an employé claims an injury, and the only corroborative evidence that it was the result of an accident was his statement at the hospital two days after the alleged accident, which was in accord with his testimony at the hearing, and a medical expert reports that in his judgment the trouble was the result of an injury, and not of a gonorrheal infection, there was sufficient corroboration of his testimony that an accident took place. Pattberg v. Young & Swain Baking Co., 2 Cal. I. A. C. Dec. 883.

4 Whitsell v. Montgomery, 1 Cal. I. A. C. Dec. 572.

Ponce v. Engstrum Co., 2 Cal. I. A. C. Dec. 370.

• "If personal injury is caused to a workman, and it arises out of and in the course of an employment to which the Act applies, it appears to me that prima facie the Act entitles him to compensation, but that this inference may be displaced by proof that the injury is attributable to his own serious and willful misconduct, or to some other cause which shows that the injury was not accidental." Lord Lindley, in Fenton v. Thorley & Co., Ltd. (1903) 5 W. C. C. 9.

The statutory presumption that, in the absence of substantial evidence to the contrary, the claim comes within the Compensation Act, is overcome

The mere fact that an employé may have a predisposition of hernia, and even a slight or latent hernia, is no proof that a serious hernia brought on while in the course of and occurring during his employment is not an "accident.”

§ 100. Proof of injury

The burden of proof is on the applicant to establish the fact of injury, but, where the injury is such that objective symptoms are absent, dependence must be placed on the history of the case given by the applicant, if he appears to be dependable. Where his story of how the injury was sustained is reasonable in itself, and corroborated by the testimony of the attending surgeon that his illness resulted from an injury, and there is no evidence tending to disprove an injury received in the course of the employment, sufficient evidence is presented to establish the fact of injury. A claim may be approved where only circumstantial evidence of the injury can be adduced,10 and circumstances may be sufficient to corrobo

by the testimony of the employé's helper and two bystanders that they were present at the time and place the accident was alleged to have occurred and did not see any accident whatsoever, and the testimony of an examining physician that he found no bruises, discolorations, or abrasions on the workman's body (Laws 1914, c. 41, § 21). Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 N. E. 507, reversing 169 App. Div. 450, 155 N. Y. Supp. 1. 7 Hasenstab v. Chicago House Wrecking Co., Bulletin No. 1, Ill., p. 62. The question as to whether or not an injured employé had a predisposition to hernia, or a weakness toward hernia, is not material, when an accident occurs which brings forth a protrusion of the intestines and causes disability; it being an accident within the meaning and scope of the Workmen's Compensation Act. Fobes v. Killeen, Bulletin No. 1, Ill., p. 68.

8 Murphy v. Casualty Co. of America, 1 Cal. I. A. C. Dec. 54.

9 Jenkins v. Pieratt, 1 Cal. I. A. C. Dec. 114.

But where claimant's testimony that he had sustained a hernia by a sudden strain while lifting, had felt sudden and severe pain, and that he had had no former hernia, was flatly contradicted by several witnesses, compensation was denied. Silverman v. Zibulsky Bros., The Bulletin, N. Y., vol. 1, No. 6, p. 13. 10 In re Simpson, Feb. 15, 1909. Op. Sol. Dept. of L. p. 675.

Where the manner in which a workman was compelled by his employment