strain to create a hernia. Held, that the hernia existed prior to the injury complained, and it would be unjust to the employer and the industry to tax the cost of treatment of this employee to the employer. Application for compensation denied."

"California. Hernia-Proof, burden of. (Industrial Accident Commission.) Harold W. Toney, employee; Thomas H. Williams, employer; Pacific Coast Casualty Company, insurer. (September 18, 1914.)

"The employee claimed that while undertaking to move a pipe in a drainage sewer a left inguinal hernia was caused. An operation was performed, and the issue involved is as to whether the hernia was a result of the accident. The presumption is against hernia being caused by accident, and the burden of proof rests strongly upon the applicant to show positively that the hernia is a result of, instead of being coincident with the accident. Ruled, that in this case the physical defect was probably at least nine-tenths constitutional, and not such as should be charged against the industry. Application denied."

"Massachusetts. Course of employment. (Industrial Accident Board.) Andrew Johnson, employee, George W. McCauley, employer; Employers' Liability Assurance Corporation, insurer.

"The question was whether the employee was injured in the course of his employment. The applicant testified regarding the development of a rupture, charging it to his heavy lifting in his employment. After the testimony of witnesses, there is given the following from Dr. L. R. G. Grandon, who was asked to give his impartial examination; "The hernia could have been caused by his work. But every hernia is related to and is caused by strain, and if the board authorizes compensation for this hernia, it must require some employer hereafter to pay for every hernia that arises in any employee. Hernia, to be caused by some specific accident, can only follow a physical effort of tremendous and unusual violence.' The committee finds, upon all the evidence, that the employee did not receive a personal injury arising out of and in the course of his employment, which caused a condition of hernia and incapacitated him for work, the evidence failing to show that the hernia for which he was operated upon was caused by reason of any strain or injury due to his employment.” In modern medical jurisprudence it has become a serious question whether hernia is a disease or caused by accident and I have taken the liberty to attach to this brief a discussion of that question prepared by Mr. Albert E. Meder which may be of some assistance to the court.

We respectfully submit that the finding of the Commission should be affirmed. Respectfully,

A. A. LILLY,

Attorney General.

FRANK LIVELY, Assistant Attorney General.

January 9, 1915.

No. 2791.

POCCARDI vs. PUBLIC SERVICE COMMISSION, Kanawha County. Order Requiring Payment of Claim.

POFFENBARGER, Judge.

1. Under its supervisory power over the Public Service Commission, respecting its administration of the Workmen's Compensation Act, this court takes cognizance of questions of law only.

2. In the absence of conflict in the evidence adduced to show a claimant's right to participation in the Workmen's Compensation Fund, the Commission is regarded, in this court, as a demurrant to the evidence, and, if the evidence would sustain a verdict of a jury in favor of the claimant, the claim is regarded as sufficiently proved.

3. It is the duty of the Commission, under such circumstances, to give the claimant the benefit of inferences arising in his favor from the facts proved, in the absence of direct evidence.

4. A fupture 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.

5. Proof of apparent previous good health, a heavy and unusual lift in the course of work, discovery of rupture on the second day thereafter, death from surgical operation for relief thereof and 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 said act.

POFFENBARGER, Judge.

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 and Tin Plate Company at Weirton, W. Va. 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 that day, Dr. L. A. Whitaker was called. Finding his condition serious, the doctor had him removed to a hospital on the 15th, performed the operation on the 16th and the patient died on the 20th. A post mortem 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 iujury 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 pole" in mill, over working." He further reports specifically that the disabili (y 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, at the time of his investigation, he had 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 re-open or re-hear 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 particularly 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, ch. 15 P sec. 43, Serial sec. 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 vs. Pub. Ser. Com., W. Va.; 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 vs. Colliery Co., 2 B. W. C. C. 42; Turner vs. Bell and Sons, 4 B. W. C. C. 63; Moss & Co. vs. Akers, 4 B. W. C. C. 294; Illinois Act, sec. 19; Iowa Act, sec. 34; Massachusetts Act, pt. 3, secs. 10 and 11; Michigan Act, pt. 3, secs. 11, 12 and 13; Minnesota Act, secs. 22 and 30; Bradbury's Work, Com. ch. 16, pp. 892 et seq.

Under the English act, the court 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 vs. Glamorgan Coal Co. 9 W. C. C. 16; Wright vs. Kerrigan, 4 B. W. C. C. 432; Owners of Steamship vs. Rice, 4 B. W. C. 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 vs. Coal Co., 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 pectoria. 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 vs. Colliery Co., 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 anaesthetics, Charles vs. Walker, Limited, 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 vs. 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 go 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 poisoning 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 appallate 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 vs. 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 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 employ

ment 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 the inference drawn in the Glamorgan case may be drawn here. In that case the man's finger might have been crushed in many ways." Wright vs. 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 vs. Thorley & Co., 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 vs. Coal and 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 any one 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 vs. West Norfolk, etc. Co., Work Com. Rep. 165, it appeared the deceased had been ruptured three or four years before the strangulation caused his death, but the court held a strain or over-exertion in the course of employment was the proximate cause of death and an accident within the meaning of the act. Brown vs. Kemp, Id. 595, 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 proceded 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 subject 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