was purely "accidental" in the sense in which that term is constantly and correctly employed. Falling out of bed asleep is an accident even if the sole design in going to bed was to go to sleep. The sole case in which falling asleep is clearly not within an employment is that of a watchman or similar service where the servant is employed expressly to stay awake. In such case the failure of the servant to do the one thing he was specially employed to do is in effect an abandonment of his employment. Such seems to have been the recent case of Gifford v. Patterson, 222 N. Y. 4, 117 N. E. 946.

The judgment of the Burlington county common pleas is affirmed, with costs.

COURT OF APPEALS OF NEW YORK.

ALPERT
ข.

J. C. & W. E. POWERS ET AL.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -ACCIDENT IN COURSE OF EMPLOYMENT—EVIDENCE. Finding of Industrial Commission that injuries to claimant were accidental and arose out of and in the course of his employment held without facts or evidence to support it.

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

2. MASTER AND SERVANT-WORKMEN'S COMPENSATIONBURDEN OF PROOF-HERNIA.

As "hernia" is a disease arising out of natural causes as well as from accident, it was incumbent on claimant to offer some evidence that his employment caused or could have caused the injury.

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

3. MASTER AND SERVANT-ABSENCE OF FINDING BY INDUSTRIAL BOARD-PRESUMPTION.

In the absence of a contrary finding of fact, it will be presumed on appeal that the lifting of bundles of paper weighing from 40 to 60 pounds by claimant did not cause hernia.

(For other cases, see Master and Servant, Dec. Dig. § 417[5].)

4. MASTER AND SERVANT-WORKMEN'S COMPENSATIONDECISION NOT SUPPORTED BY FINDING-REMAND. Although the commission found that claimant while engaged in lifting a bundle of paper sustained a hernia, and that injury was accidental and arose out of and in the course of employment, the claim will be sent back for a rehearing; there being no finding that hernia was caused by lifting paper or by strain due to performance of work.

(For other cases, see Master and Servant, Dec. Dig. § 417 [9].)

* Decision rendered, March 12, 1918. 119 N. E. Rep. 229.

Appeal from Supreme Court, Appellate Division, Third Department. Proceeding under the Workmen's Compensation Law by Leo Alpert against J. C. & W. E. Powers, employers, and the American Mutual Compensation Insurance Company, insurance carrier. From an order of the Appellate Division (167 N. Y. Supp. 385.) affirming award of the Industrial Commission in favor of claimant, the employers appeal. Reversed, and claim sent back to Commission for rehearing.

Jeremiah F. Connor, of New York City, for appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondents.

CRANE, J. While doing his work, the claimant became sick, and upon examination it was discovered that he had an inguinal hernia. The commission, after three hearings, has determined that it arose out of and in the course of his employment, and their determination has been affirmed in the Appellate Division by a divided court. It is pressed upon our attention that there is no evidence whatever to sustain the finding that there was an accidental injury within the terms of the Workmen's Compensation Law (Consol. Laws, c. 67); that, at most, the evidence shows that the claimant, while performing his usual work without accident or unusual strain, sustained or developed a hernia. Such facts, it is said, do not bring him within the benefits of the act. J. C. & W. E. Powers were engaged in the printing and lithographing business with a plant at No. 65 Duane street, in New York City. Leo Alpert, a young man 25 years of age, residing in Brooklyn, had been at work for this firm about 10 weeks prior to the 10th day of April, 1917. He was a cylinder feeder, and had been such for 7 years. His work for the present employer required him to lift a bundle of paper weighing from 40 to 60 pounds from the floor to his shoulder and carry it up two or three steps to his press. This he had done about 20 a day during the previous 7 years. On the morning of the day mentioned he felt pains in his stomach, became sick, and went home about 4 o'clock in the afternoon. It was discovered later by Dr. Charles F. Fisher that Alpert was ruptured on the right side.

times

In the statement of his claim made April 14, 1917, Alpert gives this history of the occurrence:

down

I was doing my usual work on the press I always work on, and about 11 a. m. I began to have cramps in my stomach, but I kept to work until 12 o'clock; then I took a little rest, laying in the shop at my lunch hour. I started in again at 12:30, and worked until 3:30, when my cramps were so bad I had to go home, and saw a doctor the same evening. He said I had a rupture. On April 10th, the day the cramps came on me, I was handling paper of the same size and weight as usual and in the úsual way; I did not have anything like an accident happen to I did not (sic) any extra strain.

me.

the rupture should have come."

I can't account for why

In his testimony on the first hearing he says that he was doing the work the same as he had done it every day, and was not in any different position when he was lifting the paper. At the second hearing, in reply to a question put by Commissioner Mitchell, he stated that he did not feel any unusual strain; and on the third hearing he testified as follows:

to me.

"I didn't have an accident * * * While I was lifting it up I felt pain, and it was like electric shock, more than anything * * I went upstairs and felt kind of weak, cramped up like. That is, when I was walking upstairs it hurted me. When I got up there I felt kind of dizzy, and sat there for a minute before I rolled sheets out. * * I figured it was cramps at first; probably I ate something. I really didn't remember; probably my stomach was out of order. When I started walking around again I got these little pains. I thought it would be best before I went to the doctor; I took a physic. I thought that would help me out."

While doing work which he had done regularly every day for seven years, the employee felt a pain which indicated to his physician, upon examination, that he had sustained a rupture. There was no blow or unusual exertion, nothing out of the ordinary to suggest to the employee that anything that he then did caused the pain. He thought it was due to a disordered stomach, and took a physic.

[1] At the first hearing, May 7, 1917, the commission found that the claimant "severely strained himself." Subsequently the counsel to the commission notified the members thereof that there was no evidence to sustain such a finding, and it was stricken out at the next hearing, had on July 2, 1917. A further hearing was had on August 3, 1917, after which the commission made its finding of fact to the effect that Alpert while engaged in lifting a bundle of paper sustained a hernia. There is no finding that this hernia was caused by the lifting of paper, or by any strain, or was in any way due to the work that he was performing. The lapse between cause and effect is as apparent by these findings as if the commission had said that, while the claimant was engaged in lifting a bundle of paper, he sustained a mental collapse, a nervous breakdown, or an attack of pneumonia. The subsequent finding that the injuries were accidental and arose out of and in the course of his employment are conclusions without facts or evidence to support them.

[2] No medical evidence was given before the commission as to the nature or cause of hernia, and no attempt was made to prove that the lifting in this case could have produced the rupture which later developed. Hernia is a disease arising out of natural causes as well as from accident, and it was therefore incumbent upon the claimant to offer some evidence that his employment caused or could have caused the injury.

[3, 4] It will be noted that the finding by the commission that

the employee strained himself in lifting these bundles was stricken out, and not subsequently included in its final determination. If there were no strain upon the parts injured, and the lifting did not cause the hernia, as we must assume in the absence of a finding of such fact, it is difficult to understand how the rupture arose out of an in the course of the employment. As was said in Madden's Case, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000:

"It [the act] does not afford compensation for injuries or misfortunes, which merely are contemporaneous or coincident with the employment, or collateral to it. Not every diseased person suffering a misfortune while at work for a subscriber is entitled to compensation. * * * The personal injury must be the result of the employment and flow from it as the inducing proximate cause. * * The direct connection between the personal injury as a result and the employment as its proximate cause must be proved by facts before the right to compensation springs into being."

And in Clover, Clayton & Co. v. Hughes (House of Lords, 1910) 3 B. W. C. C. 275, it was said of a man who was injured while doing his work:

"If that occurred when he was lifting a weight, it would be properly described as an accident. * * * But it does not establish that the accident was one 'arising out of the employment.' ✶ ✶✶ It may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working."

In that case there was a direct finding that the strain in fact caused the rupture. Such a finding is lacking in the one under

consideration.

For these reasons the order of the Appellate Division must be reversed, and the claim sent back to the commission for a rehearing.

We refrain from expressing any opinion at this time as to whether the words "accidental injuries" include internal injuries of an accidental nature caused by the usual and customary employment. It will be time to deal with this question when it

arises.

The order should be reversed, and rehearing ordered; costs

to abide event.

Hiscock, C. J., and Collin, Cuddeback, Pound, and Andrews, JJ, concur. Cardozo, J., not voting.

Order reversed, etc.

COURT OF APPEALS OF NEW YORK.

MCNALLY

V.

DIAMOND MILLS PAPER CO. ET AL.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— EVIDENCE OF RELATION-SUFFICIENCY.

Evidence held to sustain finding that claimant, injured while aiding in installing a new engine in a paper mill, was an employee, and not an independent contractor, although his employment was casual, and he brought two of his own men with him.

(For other cases, see Master and Servant, Dec. Dig. § 405 [2].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— ENGAGING IN BUSINESS OF EMPLOYER-HAZARDOUS EMPLOYMENT.

Where a paper mill was a going concern, and the installation therein of a new engine was necessary to run it at its full capacity, an employee engaged in installing the engine was furtherng the business of the mill within Workmen's Compensation Law (Consol. Laws, c. 67) § 2, group 15, making manufacturing of paper a hazardous employment.

(For other cases, see Master and Servant, Dec. Dig. § 361.)

Appeal from Supreme Court, Appellate Division, Third Department. Proceedings under the Workmen's Compensation Law by Charles McNally, opposed by the Diamond Mills Paper Company, employer, and the Employers' Mutual Insurance Company of New York, insurer. From an order of the Appellate Division (178 App. Div. 342, 164 N. Y. Supp. 793), reversing award of State Industrial Commission and dimissing the claim, claimant appeals. Order of Appellate Division reversed, and award affirmed.

Merton E. Lewis, Atty. Gen., and Frederick E. W. Darrow, of Kingston (E. C. Aiken, of Albany, of counsel), for appellant.

Joseph A. Warren, of New York City, for respondents.

CARDOZO, J. In 1914 the Diamond Mills Paper Company had a plant at Saugerties, N. Y. It needed another engine, and bought one from the Erie City Iron Works. The manufacturer agreed to furnish an engineer "to superintend installation." Charles McNally, the claimant, undertook to move the engine from the railroad to the plant for $225. After that contract had been fully performed, he was asked by one of the officers of the paper mill to assist in the work of installation. He was to be paid by day's labor. He brought with him two. of his own hired men, and his own blocking, rigging, and jacks. Two of the permanent employees of the mill, and two others hired for the job, worked with him. In charge of them all was the engineer. In the course of the work the claimant hurt his arm. *Decision rendered, March, 12, 1918. 119 N. E. Rep. 242.

The in