it is not an accident, but if it need not, self owing to the difficulty of lifting a happen, then there is the fortuitous element and there is an accident." Fenton v. Thorley [1903] A. C. 443, 72 L. J. K. B. N. S. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314, 19 Times L. R. 684, 5 W. C. C. 1, another English case, arose out of these circumstances: The workman, while turning a wheel attached to a press, "suddenly felt something which he describes as a tear in his inside, and upon examination it was found that he was ruptured. There was no evidence of any slip, wrench, or sudden jerk." It was held below, following Hensey v. White [1900] 1 Q. B. 481, 69 L. J. Q. B. N. S. 188, 63 J. P. 804, 48 Week. Rep. 257, 81 L. T. N. S. 767, 16 Times L. R. 64, 2 W. C. C. 1, relied upon by appellant, that there could be no recovery because of "an entire lack of the fortuitous element." This contention was overruled, and it was said that the word "accident," as used in the British act, was used in its popular ordinary sense as denoting an unlooked-for mishap or an untoward event which is not expected or designed. Reference is made to Stewart v. Wilson & C. Coal Co. Sc. Sess. Cas. 5th series, 120, where a miner strained his back in replacing a derailed coal hutch, and the question arose, Was it an accident within the meaning of the act? All the judges held that it was and that when "a workman in the reasonable performance of his duties sustains a physical injury as a result of the work he is engaged in, this is accidental injury in the sense of the statute. If such an occur. rence as this cannot be described in ordinary language as an accident, I do not know how otherwise to describe it." plank frozen to another plank was within the British act, the court saying the evidence showed the injury to be "fortuitous and unexpected." The American cases arising out of acts of this character sustain our conclusion that there is no distinction between the accident and a fortuitous event. In Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585, it is said, in defining the word "accident" as used in the New Jersey act: "An accident' is an unlooked-for mishap or untoward event which is not expected or designed," citing Fenton v. Thorley, supra. In Re Murray, Ops. Sol. Dept. Commerce & Labor, p. 201, it is held that a rupture of the internal organs, due to the change between high and normal atmospheric pressure, was an accident. In McGuigan v. Maryland Casualty Co., the Massachusetts Industrial Accident Board holds that, where a carpenter strained himself moving a heavy radiator, he was within the act granting compensation for personal injuries sustained in the course of employment. In Gross v. Marshall Butters Lumber Co., the Michigan Industrial Accident Board, October 15, 1913, holds that a workman suffering "severe straining of lumbar muscles and bruising of the third and fourth vertebra" was entitled to compensation under a classification similar to that in the Massachusetts act. The above cases are collated in 1 Bradbury's Workmen's Compensation, 367. It seems to us it is not necessary to go further in support of our ruling that the injury to the respondent resulted from a fortuitous event within the meaning and intent of our act. Section 20 of our act (Laws 1911, p. 368) provides that "in all court proceedings under or pursuant to this act the decision of the Department shall be prima facie correct, and the burden of proof shall be upon the party attacking the same." 3 Rem. & Bal. Code, § 6604-20. It is now contended that respondent has not sustained the burden of proof cast upon him by the law in seeking to overrule the decision of the Insurance Commission. There is no dispute as to the facts resulting in the injury, so that we are not called upon to review any decision reached by the Commission on disputed facts. The question is rather one of law in determining the proper interpretation of the act as applied to the undisputed facts. United States Mut. Acci. Asso. v. Barry, 131 U. S. 100, 33 L. ed. 60, 9 Sup. Ct. Rep. 755, and North American Life & Acci. Ins. Co. v. Burroughs, 69 Pa. 43, 8 Am. Rep. 212, are cited in support of the holding. Both of these are accident insurance cases. In the first, a man was fatally injured in jumping off a platform. In the second, an accidental strain resulted in death. The opinion in each case was that death resulted from an accidental injury within the meaning of the policy. These two cases, so cited by the English court, have been ap-| provingly cited by this court in Horsfall v. Pacific Mut. L. Ins. Co. 32 Wash. 132, 63 L.R.A. 425, 98 Am. St. Rep. 846, 72 Pac. 1028, where it was held that a violent dilation of the heart, resulting in death, caused by lifting a heavy weight, was within the The appellant also suggests that the provision of an accident policy covering ac- court ought not to disturb the rulings of the cidents caused solely by external, violent, Commission upon questions of policy involvand accidental means. In Timmins v. ing the administration of the act, and that Leeds Forge Co. 16 Times L. R. 521, it was the Commission, having adopted certain held that a workman who ruptured him- rules for their government in these cases. (5) hernia coming on while a man is following his usual work is not an accident. We see no difliculty in sustaining a recovery under these rules, the evidence in our judgment meeting every requirement here made. 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 traceable. should be upheld in their observance. In so far as the Commission has adopted any rules that pertain to the administrative features or those matters that are peculiarly within he control of the Commission, the courts, we apprehend, will recognize its right to do so. But this does not mean that in our interpretation of the true intent and purpose of the act on a pure question of law we are bound by any ruling of the Commission. If so, there would be no purpose in the appeal to the courts provided by the act. Whenever the Industrial Insurance Commission inter- The only error we find in the record prets the law, that interpretation is review is the sending of the case to the jury. able in the courts, and while in any given The case, calling for an interpretation of the case, as in this, the courts will give due re- language of the act upon undisputed facts, spect to the rulings of the Commission, they was one of law for the court. But, inasmuch must finally act upon their own determina- as the jury has reached the proper conclution as to what the law means and the ex- sion, we do not feel that we would be justitent to which it is applicable. The rules fied in holding this error so prejudicial as to adopted by the Commission governing hernia | require a reversal of the judgment and the cases are: (1) There must be an accident ordering of a new trial. 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; The judgment is sustained. Crow, Ch. J., and Gose, Chadwick, and Parker, JJ., concur. WEST VIRGINIA COURT OF AP- of a jury in favor of the claimant, the PEALS. GAETANO POCCARDI, Royal Consul of Italy, in Behalf of the Dependent of Cataldo Greco, Deceased, Appt., V. claim is regarded as sufficiently proved. Public Service Commission claim for 3. It is the duty of the Commission under PUBLIC SERVICE COMMISSION, Respt. such circumstances, to give the claimant the benefit of inferences arising in his favor For other cases, see Evidence, XII. b, in rupture. workmen's com pensation 4. A rupture caused by a strain while at work is an accident or untoward event arising in the course of employment, and compensable under the workmen's compensation act. injury sufficiency. For other cases, see Master and Servant, (January 26, 1915.) PPEAL by petitioner from an order of the Public Service Commission reject that day, Dr. L. A. Whittaker was called. Finding his condition serious, the doctor had him removed to a hospital on the 15th, performed the operation on the 16th, and ing a claim for compensation under the workmen's compensation act, to the widow of Cataldo Greco, deceased. Reversed. The facts are stated in the opinion. Messrs. Francis Rawle and Joseph W. the patient died on the 20th. A post morHenderson, for appellant: A court may draw an inference from proved facts where there is no direct evidence of the cause of death. Bender v. The Zent [1909] 2 K. B. 41, 78 L. J. K. B. N. S. 533, 100 L. T. N. S. 639; Mitchell v. Glamorgan Coal Co. 23 Times L. R. 588, 9 W. C. C. 16; Clover v. Hughes [1910] A. C. 242, 79 L. J. K. B. N. S. 470, 102 L. T. N. S. 340, 26 Times L. R. 359, 54 Sol. Jo. 375, 47 Scot. L. R. 885 [1910] W. N. 73, 3 B. W. C. C. 275. The injury was received in the course of and resulted from the employment. Fenton v. Thorley [1903] A. C. 443, 5 W. C. C. 1, 72 L. J. K. B. N. S. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314, 19 Times L. R. 684. Messrs. A. A. Lilly, Attorney General, and Frank Lively, Assistant Attorney General, for respondent: The conclusion of the Commission after weighing the evidence is entitled to peculiar weight, and should not be lightly set aside. Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585. The burden of proof is upon the claimant to produce evidence from which the conclusion can be legitimately drawn that the injury was received in the course of employ ment. Howe v. Fernhill Collieries [1912] W. C. Rep. 408, 107 L. T. N. S. 508, 5 B. W. C. C. 629. tem examination made on the day of the death revealed dilatation of the right ventricle of the heart as the immediate cause of death; the wound showing no unfavorable indications. Weakness of the heart had been observed while he was on the operating table. Loney Marino, a fellow workman, says Greco, after carrying the "jim pole" to the machine shop, had thrown his hands back to his hips as though he had injured himself. The man who had charge of the men engaged in the removal of the pipe and the labor boss at the plant say neither of them heard any complaint of injury. A verified certificate of the chief clerk of the company for which Greco had worked says he "strained himself" in carrying the pipe, and "first complained of his injury in machine shop." It further says "to the best of" affiant's knowledge "the injury causing death was sustained in the course of the deceased's employment." A report of the attending physician says the hernia and strangulation were "brought on by lifting jim pipe in mill, overworking." He further reports specifically that the disability was due to the accident previously mentioned by him, and that Greco had not been maimed or crippled by previous injury. After the claim had been rejected, the applicant filed a letter from Dr. Whittaker, directed generally to whom it may concern, saying Greco had been injured in the course of his employment. He further said that, Poffenbarger, J., delivered the opinion at the time of his investigation, he had of the court: Gaetano Poccardi, royal consul of Italy, on behalf of the widow of Cataldo Greco, an Italian subject, and his sole dependent, complains of an order of the Public Service Commission rejecting her claim against the workmen's compensation fund. Though a surgical operation for strangulated hernia precipitated Greco's death, the legally proximate cause thereof was the hernia. But, in the opinion of the Commission, the hernia did not result from accidental injury. Just before his death, Greco was an employee of the Phillips Sheet & Tin Plate Company at Weirton, West Virginia. On the 10th day of April, 1914, he and some of his fellow workmen lifted a heavy iron pipe called a "jim pole." He worked the next day, but illness required him to go to bed on Sunday, the second day after the exertion to which reference has been made, where he remained until April 14, 1914, without attention from a physician. On understood him to say, through an interpreter, that he had been ruptured previously, but was now assured by the interpreter that he had misunderstood him. This seems to have been considered as upon an application to reopen or rehear the case. The Commission was notified that several persons who had known the decedent were ready to testify to his previous good health. A joint affidavit of these persons to the fact, and also one made by three other persons to the effect that he had complained of abdominal discomfort immediately after the lifting of the pipe, seem to have been taken, but, if so, they were not filed with the Commission at any time, nor in this court. What purport to be copies of such affidavits appear only in the brief of counsel for the petitioner. If such affidavits exist, it is not perceived how they can be considered here; they never having been filed in the proceeding in any manner or at any stage thereof. Meager development of the merits of the case before the Commission justifies, in the opinion of some of the members of the court, refusal of the prayer of the petitioner. No doubt the operating surgeon could have determined whether the rupture was an old one or the result of disease, or a fresh wound occasioned by a strain. As to the appearance of the wound, no inquiry seems to have been propounded to him, wherefore the evidence lacks detail and particularity, which no doubt could have been supplied. One or more of the members of the court entertain the view that the evidence is defective in form and character, justifying rejection on the ground of failure on the part of the applicant to develop the facts. A further suggestion is that the finding of the Commission is of equal dignity with the verdict of a jury, and cannot be disturbed unless plainly wrong. The action of the Commission is final and irreviewable, except as to matters "going to the basis of the claimant's right." Code chap. 15p, § 43, serial § 699. As to such matters, its function is administrative, only quasi judicial, and the supervisory power of this court over its action respecting the right of the claimant is under its original jurisdiction by mandamus. De Constantin v. Public Service Commission, W. Va. -, post, 329, 83 S. E. 88. In this respect, our statute accords with the English compensation act and those of several of the states, limiting the power of review to questions of law. Gane v. Norton Hill Colliery Co. [1909] 2 K. B. 539, 78 L. J. K. B. N. S. 921, 100 L. T. N. S. 979, 25 Times L. R. 640, 2 B. W. C. C. 42; Turner v. Bell, 4 B. W. C. C. 63; Moss v. Akers, 4 B. W. C. C. 294; Illinois act (Hurd's Rev. Stat. 1913, chap. 48) § 19; Iowa act (Acts 35th Gen. Assem. chap. 147) § 34; Massachusetts act (Stat. 1911, chap. 751) pt. 3, §§ 10, 11; Michigan act (Pub. Acts 1912, No. 10) pt. 3, §§ 11, 12, 13; Minnesota act (Gen. Stat. 1913, §§ 8216, 8225) §§ 22, 30; Bradbury, Workmen's Compensation, chap. 16, pp. 892 et seq. Under the English act, the courts regard the employer, whose place, under our statute, the Commission takes, as a demurrant to the evidence, when the issue is one of mere sufficiency thereof. If the evidence adduced or the facts found or disclosed are uncontradicted, and would sustain a verdict of a jury in favor of the claimant, there is liability as a matter of law, and legal duty to pay the claim arises. Mitchell v. Glamorgan Coal Co. 23 Times L. R. 588; 9 W. C. C. 16; Wright v. Kerrigan [1911] 2 I. R. 301, 45 Ir. Law Times, 82, 4 B. W. C. C. 432; The Swansea Vale v. Rice, 104 L. T. N. S. 658, 27 Times L. R. 440, 55 Sol. Jo. 497, 48 Scot. L. R. 1095, 4 B. W. C. 298. What rule would govern in a case of conflicting evidence, it is unnecessary to say, since the evidence adduced here is free from conflict. All of it points in the same direction, and the only question is the weight to which inferences arising from the facts are entitled. The written opinion adopted by the Commission rests largely upon the sound legal proposition that evidence giving rise to inferences consistent with the theory of liability and inconsistent therewith, in equal degree, is insufficient. An illustration of such evidence is found in Hawkins v. Powells Tillery Steam Coal Co. [1911] 1 K. B. 988, 80 L. J. K. B. N. S. 769, 104 L. T. N. S. 365, 27 Times L. R. 282, 55 Sol. Jo. 329, 4 B. W. C. C. 178. A workman whose heart was shown to have been in bad condition collapsed while at work, and died of angina pectoris. The court held the two facts (collapse while at work and disease of the heart) rendered the cause of death uncertain; the inferences arising being equally consistent with the theory of death from accident and death from disease. A collier having highly diseased arteries, threatening apoplexy at any time and under any conditions, was attacked with apoplexy while at work, and died. Here likewise the court held the evidence insufficient. Barnabas v. Bersham Colliery Co. 102 L. T. N. S. 621, 3 B. W. C. C. 216. There were like holdings in the case of a man who had undergone two successive surgical operations (amputation of a finger injured while at work, and another for a diseased tooth) and died from the effect of the anesthetics (Charles v. Walker, 25 Times L. R. 609, 2 B. W. C. C. 5), and a sailor found dead in the water in the morning, after having gone on deck, late at night, to get fresh air (Davis v Hill's Plymouth Colliery, 3 B. W. C. C. 514). In each of these cases, directly contradictory inferences arose from facts proven. In the absence of such contradiction, however, the probability arising from the facts disclosed governs and concludes. A night workman who had gone to his work, a mile or more distant, in the evening, sound and well, came back in the morning at the usual hour, in his working clothes and with a finger crushed and bleeding, unwashed, and wrapped in a rag. Continuing his work, blood poison set in, and he died. The county judge held his widow had not proved a case, and said the accident might have occurred in the walk from the colliery. But the appellate court, reversing, said: "The workman was engaged in work at which accidents do happen, and the probability therefore is that the accident happened at the time when he was so engaged, rather than at a time when, in the ordinary course of life, such accidents do not happen. There is nothing to suggest here that the accident happened on the way home." Mitchell v. Glamorgan Coal Co. cited. A man whose duty it was to lift coffins went to work apparently well, and, on returning, complained of having been hurt and had marks on his side and chest and a swollen leg. He died about a week later of pneumonia superinduced by the injury. There was no proof as to how he was injured, except a statement to his physician that he had "met with an accident by moving a coffin." The court, in dismissing the appeal, said: "So far we have, at any rate, the fact that one coffin went out, and that it would be the duty of the deceased to assist in removing it, and the doctor's evidence is consistent with the fact that something like a coffin fell upon him. This man, whose employment was lifting coffins, went out well, and came home, as we have heard, with marks and injuries upon him. In these circumstances, it strikes me that the inferences drawn in the Glamorgan Case may be drawn here. In that case the man's finger might have been crushed in many ways." Wright v. Kerrigan, cited. This principle applies as well to the ascertainment of the times and causes of internal injuries, such as ruptures. Here, as in many other instances in the administration of the laws, the right is not susceptible of complete and certain demonstration, and probability, which, ex vi termini, is evidence, must take its place as inconclusive, but nevertheless dependable, proof. In one of the most notable English cases decided apparently by the House of Lords, the decision of the county judge, denying right of compensation for a rupture, affirmed by the court of appeal, was reversed and the case remanded for ascertainment of the amount of compensation. Fenton v. Thorley, 5 W. C. C. 1. In that case Lord Lindley said: "The personal injury was the rupture. The cause of it was the unintended and unexpected resistance of the wheel to the force applied to it. . . The proximate cause may be an internal strain." In Fulford v. Northfleet Coal & Ballast Co. 1 B. W. C. C. 222, compensation for injury by rupture was awarded to a man who had a previously existing rupture, on the theory that it had been so increased by a strain as to incapacitate him. The court said: "I think, regarding the case solely from the medical aspect, the injury could not have been an untoward event not expected. On the other hand, the man had worked in the chalk quarry for six months and had dug out lumps of chalk quite as large as the one in question without injury, notwithstanding the strain he was suffering from, and, as far as he or anyone without medical or surgical knowledge was concerned, the injury was occasioned by means of a mishap or untoward event not expected or designed." In Scales v. West Norfolk Farmers' Manure & Chemical Co. [1913] W. C. & Ins. Rep. 165, 6 B. W. C. C. 188, it appeared the deceased had been ruptured three or four years before the strangulation causing his death, but the court held a strain or overexertion in the course of employment was the proximate cause of death and an accident, within the meaning of the act. Brown v. Kemp [1913] W. C. & Ins. Rep. 595, 6 B. W. C. C. 725, was a similar case, and in it compensation was awarded. Responding to medical criticism of the theory of rupture by strain or exertion, the Washington Industrial Insurance Commission has adopted rules requiring proof in cases of claims predicated on hernia: (1) That its origin was recent; (2) that it was accompanied by pain; (3) that it was immediately preceded by accidental strain in hazardous employment; and (4) that it did not previously exist. Similar rules have been adopted by the Commission. Notwithstanding the criticism calling forth these rules, they impliedly admit possibility and probability of rupture from a strain, when the strain and the rupture are in close relation. So does an article by the attorney for the Michigan Compensation Board, published in the National Compensation Journal, brought to our attention by the brief for the Commission. Both the rules and the thesis admit the English proposition that an internal injury resulting from a strain while at work is an accident, within the meaning of the act, and their limitations or restrictions upon proof of the fact have not been judicially approved. Under the decisions to which reference has been made, the circumstances stated, if sufficiently proved, make out a prima facie case of right to participation. Greco had worked for his employer more than two months. There is no proof of any antecedent infirmity of any kind on his part. In his employment, he was subjected to unusual physical exertion on Friday. He took to his bed on Sunday, and his ailment proved to be hernia. The surgeon who operated upon him and saw the rupture had no personal knowledge of the exertion, but was informed as to that fact. If a competent physician and surgeon, he was likely able to tell, from his inspection, whether the rupture was of recent origin. Having inspected it, and knowing from others what the |