Hernia resulting from some unusual strain or exertion by the workman while acting within the scope of his employment is an accident for which compensation is recoverable.34 So, the court of common pleas is justified in finding that a man's death was due to accident where, although there was some evidence that pointed to cancer and an internal rupture of some kind, the rupture occurred while the deceased was in the very act of doing some heavy work, namely, furrowing certain heavy posts, pushing them forward against the knives of the furrowing machine by pressing his abdomen forcibly against the ends of the posts.35 Under the American statutes, as under the English act, the question has arisen fact only; namely, an accident. Hence if the injury or death can be traced by physical causation not too remote in time or place to the accident, then such injury or death was proximately caused by the accident, irrespective of any element of reasonable anticipation.” "An injury, to come within the compensation act, need not be an anticipated one; nor, in general, need it be one peculiar to the particular employment in which he is engaged at the time." State ex rel. People's Coal & Ice Co. v. District Ct. (1915) 129 Minn. 502, post, 344, 153 N. W. 119. In this case the employee was struck by lightning while standing under a tree to which he had gone, for protection, from his ice wagon which it was his duty to drive. Death may be the result of the injury within the meaning of the Massachusetts workmen's compensation act, whether or not it was the reasonable and likely consequence of the injury. Sponatski's Case (1915) 220 Mass. 526, post, 333, 108 N. E. 466, 8 N. C. C. A. 1025. whether an industrial disease is an accident within the meaning of the statute. Following the English rule, it has been held that where no specific time or occasion can be fixed upon as the time when an accident happened, there is no injury by accident within the meaning of the New Jersey act.36 Thus, where an employee, after ten days' service in defendant's bleachery, was affected with a rash which was pronounced to be a condition of eczema, and might be caused by acids, his injury is not "by accident" within the meaning of the New Jersey act.37 So it has been held that lead poisoning is not an accident within the meaning of the Michigan act.38 But under the Massachusetts act, lead poisoning has been in the policy of the act as announced by the legislature in its adoption, and the language of the court in its interpretation." The court also said: "The rules adopted by the Commission governing hernia cases are: (1) There must be an accident resulting in hernia; (2) the hernia must have appeared just following the accident; (3) there must have been present pain at the time; (4) the applicant must show that he did not have hernia before the accident; (5) hernia coming on while a man is following his usual work is not an accident." In this case the evidence showed that the workman was in the employ of a cooperage company, and on the day of the alleged injury was pushing a heavily loaded truck; that the car ran harder than usual, and he tried three or four times to start it, but could not move it, and then put all of his strength into it, gave a jerk and hurt himself. The court said: "The evidence takes the case out of the fifth rule, showing, as we have held, that the hernia in this case resulted from a fortuitous event or accident, and is not one appearing while the workman was following his usual work without accident or fortuitous event to which the result might be directly trace 34 A rupture caused by a strain while at work is an accident or untoward event arising in the course of the employment, and compensible under the workmen's compensation act. Poccardi v. Public Service Com-able." mission (1915) W. Va., post, 299, 84 S. E. 242, 8 N. C. C. A. 106. Hernia resulting from a workman attempting to move a heavy truck in the line of his employment is an injury resulting "from some fortuitous event as distinguished from the contraction of a disease" within the meaning of the Washington statute. Zappala v. Industrial Ins. Commission (1914) 82 Wash. 314, post, 295, 144 Pac. 54. The court said: "The sustaining of an injury while using extreme muscular effort in pushing a heavily loaded truck is as much within the meaning of a fortuitous event as though the injury were the result of a fall or the breaking of the truck. To hold with the Commission that if a machine breaks, any resulting injury to a workman is within the act, but if the man breaks, any resulting injury is not within the act, is too refined to come with 35 Voorhees v. Smith Schoonmaker Co. (1914) 86 N. J. L. 500, 92 Atl. 280, 7 C. C. A. 646. 36 In Liondale Bleach, Dye, & Paint Works v. Riker (1913) 85 N. J. L. 426, 89 Atl. 929, 4 N. C. C. A. 713, in holding that where no specific time or occasion can be fixed upon as the time when the alleged accident happened, there is no injury by accident within the meaning of the act, the court said: "This seems a sensible working rule, especially in view of the provisions of the statute requiring notice in certain cases within fourteen days of the occurrence of the injury, a provision which must point to a specific time." 37 Ibid. (N. J.) 38 If the Michigan act should be held to apply to occupational diseases, it would be unconstitutional under the provision of the Constitution that no law shall embrace held to be a "personal injury." 39 As has been pointed out, the requirement of a statute that notice of the "accident" be given to employers within a fixed period of time indicates that the legislature had in mind something that occurred at some specific time, which would exclude occupational diseases. This inference might also be drawn with regard to the Massachusetts act, but the courts of that state had held that the same rule does not apply to the latter act,40 and that the "personal injury" arises at the time when the employee becomes incapacitated.41 If a disease other than an occupational disease is the direct result of the conditions under which the workman is employed, there can be no questions but more than one subject, which shall be expressed in its title. Adams v. Acme White Lead & Color Works (1914) 182 Mich. 157, post, 283, 148 N. W. 485, 6 N. C. C. A. 482. that it is a "personal injury." Thus, an attack of optic neuritis induced by poisonous coal tar gases from furnaces which it was the workman's duty to attend, which attack resulted in total loss of vision, is a "personal injury" within the meaning of the Massachusetts act.42 So, an employee who inhales damp smoke and is drenched with water, and as a result contracts lobar pneumonia and dies, may be found to have suffered a personal injury within the meaning of the Massachusetts act.4 And typhoid fever contracted by an employee in drinking contaminated water furnished to him by his employer is an accident within the meaning of the Wisconsin act.44 So, too, the death of a person v. The Zenaida (1909) 25 Times L. R. 446, 2 B. W. C. C. 19); pneumonia induced by inhalation of gas (Kelly v. Auchenlea Coal Co. [1911] S. C. 864, 48 Scot L. R. 768, 4 B. W. C. C. 417). See also Brown v. George 43 39 Johnson's Case (1914) 217 Mass. 388, Kent [1913] 3 K. B. (Eng.) 624, 82 L. J. 104 N. E. 735, 4 N. C. C. A. 843. K. B. N. S. 1039, 109 L. T. N. S. 293, 29 Times L. R. 702, 6 B. W. C. C. 745, and Alloa Coal Co. v. Drylie [1913] S. C. 549, 50 Scot. L. R. 350, 6 B. W. C. C. 398, 4 N. C. C. A. 899. We lay these cases on one side, however, because it is plain from the third schedule of Stat. 6 Edw. VII. chap. 58, that certain occupational diseases were intended to be included within the English act.” 43 Re McPhee (1915) Mass. 40 Blindness through optic neuritis, due to poisonous gases from a furnace about which the injured person is obliged to work, is a personal injury within the meaning of the Massachusetts act, although the statute requires that information shall be given as to the time, place, and cause of the injury, as soon as practical after it is suffered, and that the employer shall make return of an accident resulting in any injury. Hurle's Case (1914) 217 Mass. 223, post, 279, 104 N. E. 336, Ann. Cas. 1915C, 919, 4 N. C. C. A. 527. 41 Although it was found that a lead grinder had been absorbing lead poisoning into his system for twenty years, the Industrial Accident Board is justified in finding that the injury arose at the time when he became incapacitated for work because of the poison. Johnson's Case (Mass.) supra. E. 633. 109 N. 44 Vennen V. New Dells Lumber Co. (1915) Wis. post, 273, 154 N. W. 640. The court said: "The term 'accidental,' as used in compensation laws, denotes something unusual, unexpected, and undesigned. The nature of it implies that there was an external act or occurrence which caused the personal injury or death of the employee. It contemplates an event not within one's foresight and expectation, resulting in a mishap causing injury to the employee. Such an occurrence may be due to purely accidental causes, or it may be due to oversight and negligence. The fact that deceased became afflicted with typhoid fever while in defendant's service would not, in the sense of the statute, constitute a charge that he sustained an accidental in 42 In Hurle's Case (Mass.) supra, the court said: "The English workmen's compensation act affords compensation only where the workman receives 'personal injury by accident.' It adds to the personal injury alone required by our act the element of accident. Yet it has been held frequently that disease induced by acci-jury, but the allegations go further, and dental means was ground for recovery; as, state that this typhoid affliction is atfor example, a rupture resulting from over- tributable to the undesigned and unexertion (Fenton v. J. Thorley & Co. [1903] expected occurrence of the presence of bacA. C. (Eng.) 443, 72 L. J. K. B. N. S. 787, teria in the drinking water furnished him 52 Week. Rep. 81, 89 L. T. N. S. 314, 19 by the defendant, as an incident to his emTimes L. R. 684); infection of anthrax from ployment. These facts and circumstances a bacillus from wool which was being clearly charge that Vennen's sickness was sorted (Brintons v. Turvey [1905] A. C. the result of an unintended and unexpected (Eng.) 230, 74 L. J. K. B. N. S. 474, 53 mishap incident to his employment. These Week. Rep. 641, 92 L. T. N. S. 578, 21 allegations fulfil the requirements of the Times L. R. 444, 2 Ann. Cas. 137); heat statute that the drinking of the polluted from a furnace (Ismay I. & Co. v. William- water by the deceased was an accidental son [1908] A. C. (Eng.) 437, 77 L. J. P. C. occurrence while he was performing servN. S. 107, 99 L. T. N. S. 595, 24 Times L. R.ices growing out of and incidental to his 881, 52 Sol. Jo. 713); sunstroke (Morgan employment.' It is alleged that the conse 46 The supreme court will not reverse the findings of fact that the death of an employee was due to injury arising out of and in the course of his employment, where the employee died of pneumonia, and there was expert evidence to the effect that the direct cause of the pneumonia was a hurt or strain of the back suffered by the deceased about two weeks before his death, although such expert evidence was flatly contradicted by other expert evidence. Bayne v. Riverside Storage & Cartage Co. (1914) 181 Mich. 378, 148 N. W. 412, 5 N. C. C. A. 837. 47 Where an employee's arm was broken while he was in the defendant's employ, and was treated at a hospital where the fracture properly united, but there developed an abscess upon the fleshy part of the thumb, which resulted in ankylosis of the thumb, making it permanently useless, the injury of the thumb was an injury arising by accident out of and in the course! of his employment. Newcomb v. Albertson (1913) 85 N. J. L. 435, 89 Atl. 928, 4 N. C. C. A. 783. The court said: "We cannot assume that the infection could be caused only by the negligence of the physician,| and it is therefore unnecessary to decide whether such negligence would amount to such a break in the chain of causation that the employer would not be liable." 48 Disability resulting from blood poison that the accident resulted in his death, while it would have had less serious results had the employee been a normally healthy man, does not prevent his dependents from recovering compensation for his death. Thus, acceleration of previously existing heart disease to a mortal end sooner than it would have come otherwise is an injury within the meaning of the act.50 So, a workman's death may be held to be the result of an injury where, after working hard during the forenoon at heavy labor, he attempted to carry bags of coal, weighing approximately 150 to 200 pounds, and, in attempting to lift one, fell to the ground and died immediately or shortly thereafter, and there was expert testimony to the effect that a few years before he had suffered from acute articular rheumatism, and that an affection of the valves of the heart ordinarily followed cases of acute inflammatory rheumatism.51 ing may be found to be the proximate result of an injury to the hand of an employee which bruised the flesh and knocked a small piece of the skin off the back of the hand, where the time that transpired between the abrasion and the beginning of the pain was the usual period of infection of one form of the disease commonly termed "blood poisoning." Great Western Power Co. v. Pillsbury (1915) Cal. - post, 281, 151 Pac. 1136. The accident, and not blood poisoning, will be held to be the proximate cause of the death of an employee who received a fracture of the spine which necessitated his lying in bed in one position, and by reason of this an extensive bed sore was developed, which extended and grew worse until it brought about the blood poisoning that was the immediate cause of his death. Re Burns (1914) 218 Mass. 8, 105 N. E. 601. 49 The aggravation by a boxing match of a wound received in the course of the employment, which had practically healed, and would have caused no further trouble had it been given a little more rest, so that blood poisoning and permanent injuries to the hand result, is a proximate cause of such injury, and no recovery can be had under the Wisconsin act. Kill v. Industrial Commission (1915) 160 Wis. 549, ante, 14, 152 N. W. 148. 50 Brightman's Case (1914) 220 Mass. 17, post, 321, 107 N. E. 527, 8 N. C. C. A. 102, citing Wiemert v. Boston Elev. R. Co. (1914) 216 Mass. 598, 104 N. E. 360; Clover, C. & Co. v. Hughes [1910] A. C. (Eng.) 242, 79 L. J. K. B. N. S. 470, 102 L. T. N. S. 340, 26 Times L. R. 359, 54 Sol. Jo. 375, 3 B. W. C. C. 275, 47 Scot. L. R. 885. 51 Fisher's Case (1915) 220 Mass. 581, 108 N. E. 361. And the dependents of a school principal | fered "personal injury" within the meanwhose death was caused by a blow on|ing of the Massachusetts act.56 the head from a basket ball may recover compensation although the deceased was suffering from an advanced stage of arterial sclerosis at the time he was injured, and had he not been so suffering, the blow he received would, in all probability, have caused no serious injury.52 Likewise it has been held that compensation is recoverable where the man's incapacity is the direct result of an injury, although such incapacity is largely subjective, he apparently not having the will power to throw off the after-effects of the injury to the extent which his physical condition warrants.5 53 An employee of a mill company, who is drowned while cleaning rubbish out of a flume, suffers death by accident.* So, An injury is none the less an accident because it was occasioned by a sportive act of a fellow employee.56a In one case, the Wisconsin court rejected the contention of the employer that an injury resulting from carelessness or negligence is not one that can be said to have been accidentally sustained in the sense of the compensation act.57 Where the common pleas judge found as a fact that the decedent was killed "by a heavy bar of metal falling upon his head from one of the upper stories" of the building upon which he was at work, and that the falling of the bar was caused by another fellow workman, the decedent's death was caused by "an accident" within the purview of the act.58 The fact that the injury was the result The burden of proving that there was of a wilful or criminal assault by another an accident which caused the injury in does not exclude the possibility that the question is upon the petitioner,59 and an injury was caused by accident.55 award cannot stand which is based merean employee who was shot while at-ly upon conjecture.60 That the injury tempting to remove an intruder from the was caused by accident, however, may factory in which he was employed suf-be shown by circumstantial evidence.61 52 Milwaukee v. Industrial Commission, his employment include all accidental in(1915) 160 Wis. 238, 151 N. W. 247. 53 Where a workman is partially incapacitated for work by reason of a condition of hysterical blindness and neurosis, he is entitled to compensation if such injuries flow as a proximate result from an actual physical impact, although slight, received by him in the course of and arising out of his employment, although apparently he did not have sufficient will power to throw off the condition and go to work, as his physical capacity amply warranted him in doing. Hunnewell's Case (1915) 220 Mass. 351, 107 N. E. 934. 54 Boody v. K. & C. Mfg. Co. (1914) 77 N. H. 208, ante, 10, 90 Atl. 859. 55 Western Indemnity Co. v. Pillsbury (1915) Cal. 151 Pac. 398 (section foreman assaulted by member of gang who had been discharged). In McNicol's Case (1913) 215 Mass. 497, post, 306, 102 N. E. 697, 4 N. C. C. A. 522; compensation Was allowed for injuries caused by an assault of an intoxicated fellow workman, but the case turned upon the question whether the injury was received in the course of the employment, and not whether it was such an injury as to entitle the workman to compensation. juries, whether happening through negligence or otherwise, except those intentionally self-inflicted." 58 Bryant v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585. 59 The burden of proving that death was caused by accident arising out of and in the course of the employment is upon the petitioner; and where the physician in attendance refuses to state that death was caused by the accident, there is no basis or inference to that effect by the court. Reimers v. Proctor Pub. Co. (1913) 85 N. J. L. 441, 89 Atl. 931, 4 N. C. C. A. 738. 60 Where a workman employed in building a bridge over a river near its outlet in a bay was last seen alive at his home some miles from the place of work, and two hours before he was to return to his work, and his body was afterwards found in the bay, and there was no evidence as to how he met his death, it may properly be inferred that he came to his death by accident, but not that the accident arose out of his employment. Steers v. Dunnewald (1913) 85 N. J. L. 449, 89 Atl. 1007, 4 N. C. C. A. 676. 61 An accident may be inferred where an employee was found dead under a train of 56 Re Reithal (1915) -- Mass. post, 304, cars with a hole of about 6 inches in 109 N. E. 951. 56a De Fillipis v. Falkenberg (1915) App. Div. -, 155 N. Y. Supp. 761. 57 Vennen V. New Dells Lumber Co. (1915) Wis. post, 273, 154 N. W. 640. The court said: "In the popular sense the words as used in the compensation act referring to a personal injury accidentally sustained by an employee while performing services growing out of and incidental to diameter in his abdomen, where there is nothing from which self-destruction can be inferred, and the size of the wound indicates that the injury was caused by some unknown happening. De Fazio v. Goldschmidt Detinning Co. (1913) N. J. L. 88 Atl. 705, 4 N. C. C. A. 716. Proof of apparent previous good health, a heavy and unusual lift in the course of work, discovery of rupture on the second Whether or not the injury was caused by "accident" is generally considered to be a question of fact; and the findings of the Commission or trial court will not be disturbed if there is some evidence to support such finding.62 But it has been said that the question whether or not the injury to the employee is an accident within the purview of 2 of the New Jersey act is a mixed question of law and fact; when applied to a certain state of facts, it is a question of law.63 XXXIII. Injuries "arising out of and in the course of" the employment. 66 The terms "out of" and "in the course of" are not synonymous, 65 and if either of these elements is missing, there can be no recovery.6 The two questions are to be determined by different tests.67 The words "out of" refer to the origin or cause of the accident, and the words "in the course of" to the time, place, and circumstances under which it occurred.68 So it has been said that an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises "out of and in the course of the employment." 19 69 the employment is an accident arising out of the employment,70 and that the injuries for which compensation is to be paid under the Wisconsin act are such v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C A. 585. For the English decisions construing It has been said that under the New this phrase, see ante, 40. Jersey act an accident which is the rePractically all of the American stat-sult of a risk reasonably incident to utes provide compensation in case of "injury" or "injury by accident" "arising out of and in the course of the employment." This phrase is borrowed day thereafter, death from surgical operation for relief thereof, and the opinion of the operating surgeon that the rupture was caused by the lifting, is sufficient to establish accidental injury in the course of employment within the meaning of the West Virginia act. Poccardi v. Public Service Commission (1915) W. Va. post, 299, 84 S. E. 242. The Industrial Commission is justified in indulging the presumption that a workman whose body was found in a river did not commit suicide. Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 150 N. W. 998. Where, by an agreement between an employer and an employee, it was stated that the injury to the employee's right eye was caused by molten iron being splashed into it, causing a bad burn, the employer is estopped from subsequently claiming that the defect in the eye at the time of the order approving the agreement was the result of senile cataract. Spooner v. Beckwith (1914) 183 Mich. 323, 149 N. W. 971. 62 The findings by the Industrial Accident Board, upon a petition to review, will not be reversed unless the petitioners have conclusively shown by their evidence that the injury to the employee's eye was caused by senile cataract, and not by traumatism. (Mich.) Ibid. 63 Bryant v. Fissell (1913) 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585. 64 The language of the New Jersey act of 1911 with reference to the recovery of compensation where an employee is injured by accident arising out of and in the course of his employment is identical with the language of the British workman's compensation act of 1906, and therefore cases in that jurisdiction, construing the language in that act, will be useful in construing the same language in the New Jersey act. Bryant 65 “An injury may be received in the course of the employment and still have no causal connection with it, so that it can be said to arise out of the employment." State ex rel. Duluth Brewing & Malting Co. v. District Ct. (1915) 129 Minn. 176, 151 N. W. 912. 66 McNicol's Case (1913) 215 Mass. 497, post, 306, 102 N. E. 697, 4 N. C. C. A. 522; Bryant v. Fissell (N. J.) supra. 67 Hopkins v. Michigan Sugar Co. (1915) Mich. post, 310, 150 N. W. 325. 68 Hills v. Blair (1914) 182 Mich. 20, 148 N. W. 243, 7 N. C. C. A. 409; Hopkins v. Michigan Sugar Co. (Mich.) supra. 69 Scott v. Payne Bros. (1914) 85 N. J. L. 446, 89 Atl. 927, 4 N. C. C. A. 682. An accident arises "in the course of the employment" if it occurs while the employee is doing what a man so employed may reasonably do in the time during which he is reasonably employed, and at a place where he may reasonably be during that time; and it arises "out of" the employment when it is something the risk of which may have been contemplated by a reasonable person when entering the employment as incidental thereto. Bryant v. Fissell (N. J.) supra. "It is sufficient to say that an injury is received in the course of' the employment, when it comes while the workman is doing the duty which he is employed to perform. It arises out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury." McNicol's Case (Mass.) supra. L. 70 Hulley v. Moosbrugger (1915) N. J. |