Compensation Act (Laws 1913, p. 335) is denied on the ground that Madison's injury did not arise out of his employment. The argument in support of that contention is that the fall into the ash pit was not due to an incident of the employment, but was caused by Madison being seized with an epileptic fit; that he was subject to such fits, of which his employer had no knowledge; that the fit was the direct and only cause of his injury, and the accident did not arise out of the employment. It is generally held by the English courts and the courts of this country that, where the death of an employee results from a prior existing disease, like heart trouble or other impaired physical condition, while the workman was doing his ordinary work in the ordinary way, and there was no sudden, unusual, or violent strain, it will not be considered an accidental death arising out of the employment, within the meaning of the Workmen's Compensation Act.

It is contended by defendant in error those principles are controlling in this case, because there was no evidence of any unusual effort or strain of Madison, which caused or contributed to his fall, or to bring on a fit, as the result of which he fell into the pit. So far as disclosed by the testimony, Madison was doing his work in the ordinary way when last seen. No one saw him fall, but there was proof by medical and lay witnesses that in the year 1918 he had spasms resembling epileptic fits, and the doctors who testified on that subject believed him afflicted with that trouble. The widow testified she had been married to deceased and lived with him a year before the accident, and that she had never seen or known of his having a fit. It must be admitted the proof of defendant in error tended to show Madison occasionally had spasms or fits. Whatever the disease was that caused the spasms or fits, it was mild in form, and the

fits were not many or of frequent

Occurrence.

It is contended by defendant in error that it is not as probable Madison's fall into the pit was the result of his being overcome by gases or fumes or other causes, while removing the hot ashes and cinders from the furnace, as that the fall was caused by an epileptic fit, in view of the testimony referred to. The fact that we cannot overlook or ignore is that Madison, by reason of his falling into the pit while engaged in performing the duties of his employment, was so severely injured that he died from the injuries. He did not die from epilepsy or pre-existing disease, but from the burns he received from falling into the pit. Some cases hold that, where an employee is seized with a fit and falls to his death, the employer is not liable, because the injury did not arise out of the employment (Van Gorder v. Packard Motorcar Co. 195 Mich. 588, L.R.A.1917E, 522, 162 N. W. 107; Brooker v. Industrial Acci. Commission, 176 Cal. 275, L.R.A. 1918F, 878, 168 Pac. 126); but a majority of the courts, American and English, hold that, if the injury. was due to the

compensation

epileptic seizure.

fall, the employer is Workmen's liable, even though injury caused by the fall was caused by a pre-existing idopathic condition.

Defendant in error admits the English decisions "apparently sustain the position of the applicant in this case," but endeavors to point out that those decisions are not all in harmony, and argues the American cases holding the contrary are based on sounder reason and principles. The view of this court on that question was expressed in the opinion in Peoria R. Terminal Co. v. Industrial Bd. 279 Ill. 352, 116 N. E. 651, 15 N. C. C. A. 632. In that case the employee was fireman on a switch engine. While engaged in performing his duties he fell from the engine, while it was running slowly

chap. 138, as amended by Pub. Acts 1915, chap. 288).

The deceased had worked as a painter for defendant for over two years, and had painted structures. at a height above the ground without being affected by it. He began, in September, 1918, visiting physicians for their prescription. None of the physicians told him his trouble; indeed, they did not agree as to this. From time to time prior to April 15, 1920, he had spells of unconsciousness, but he had always been able to anticipate these and take firm hold of some support, and after temporary loss of consciousness he would resume work. The defendant knew that the deceased suffered from indigestion, and that on one occasion, when he was at home, he had a spell of fainting or unconsciousness. About three

months before the date of his injury a physician had advised him to discontinue working in high places, because of the liability to have one of these attacks. He replied that he had painted all his life, and knew no other kind of work, and he had to continue in the line of his own occupation.

On April 15, 1920, he was given his choice between inside work, and outside on a staging some 11 feet above the surface, which was covered with wooden paving blocks. He was not feeling well that morning, and preferred working out of doors. He worked awhile, and then went to defendant's dispensary and said he had indigestion. The nurse in charge gave him a dose of rhubarb and soda, and he took this, and apparently felt relieved, and resumed his work. The deceased believed that his trouble was indigestion, and several times, for that complaint, the nurse had given him a similar remedy, which had relieved him. He also frequently had complained of his stomach. It did not appear that he had a disease which, in the absence of this fall, would have been fatal within any brief period of time. He was, during this morning while at work,

jovial and joking with his fellow workmen. On returning from the dispensary he worked awhile, and then, apparently again feeling uncomfortable, he sat down on the platform where he was painting, smoked a cigarette, stood up, or partly stood up, to resume work, and then fell backward to the surface below, and fractured his skull as a result of the fall, from which he died.

Mr. Benjamin I. Spock, for defendant:

Decedent's fall and subsequent skull fracture, resulting in death, brought about by an attack of fainting and temporary unconsciousness due to his heart condition, do not constitute an injury arising out of his employment.

Diaz v. Warren Bros. Co. 95 Conn. 287, 111 Atl. 206; Jacquemin v. Turner & S. Mfg. Co. 92 Conn. 382, L.R.A. 1918E, 496, 103 Atl. 115; Larke v. John Hancock Mut. L. Ins. Co. 90 Conn. 303, L.R.A.1916E, 584, 97 Atl. 320, 12 N. C. C. A. 308; Marchiatello v. Lynch Realty Co. 94 Conn. 260, 108 Atl. 799; Fiarenzo v. Richards & Co. 93 Conn. 581, 107 Atl. 563; Hartz v. Hartford Faience Co. 90 Conn. 539, 97 Atl. 1020; Reeves v. John A. Dady Corp. 95 Conn. 627, 113 Atl. 162; Brooker v. Industrial Acci. Commission, 176 Cal. 275, L.R.A. 1918F, 878, 168 Pac. 126; Van Gorder

V. Packard Motorcar Co. 195 Mich. 588, L.R.A.1917E, 522, 162 N. W. 107; Collins v. Brooklyn Union Gas Co. 171 App. Div. 381, 156 N. Y. Supp. 957; Butler v. Burton-on-Trent Union, 5 B. W. C. C. 355; Nash v. The Rangatira [1914] 3 K. B. 978, 83 L. J. K. B. N. S. 1496, 111 L. T. N. S. 704, 58 Sol. Jo. 705, 7 B. W. C. C. 590; George L. Eastman Co. v. Industrial Acci. Commission, Cal., 200 Pac. 17; Cox v. Kansas City Ref. Co. 108 Kan. 320, post, 90, 195 Pac. 863; Carroll v. What Cheer Stables Co. 38 R. I. 421, L.R.A. 1916D, 154, 96 Atl. 208, Ann. Cas. 1918B, 346, 12 N. C. C. A. 174.

Decedent's conduct in working upon an elevated staging, with full knowledge of his physical disabilities and in utter disregard of the warnings which he had received against persisting in such work, constitutes serious and wilful misconduct.

Bradbury, Workmen's Comp. 3d ed. 531; Johnson v. Marshall, Sons & Co. [1906; H. L.] A. C. 409, 75 L. J. K. B. N. S. 868, 94 L. T. N. S. 828, 22 T. L. R.

walking from one place of work to another on his employer's premises in the course of his work, it would hardly be claimed that the injury did not arise out of the employment."

This could not have been asserted unless we had been of the opinion that the fall, and not the slipping, caused the injury. Reeves v. John A. Dady Corp. 95 Conn. 627, 631, 113 Atl. 163, was decided upon the point that, at the time the decedent fell from the doorway, he had temporarily departed from the course of his employment. "In this case," we say, "the decedent did not fall out of the doorway through carelessness, or because of any disability which he brought to his employment." The inference, although unexpressed, seems to us plain, us plain, that, if he had fallen because of a physical disability which he had brought to his employment, vertigo, an epileptic fit, or heart disease, the resulting injury would have been one arising out of the employment. And this would have been so because the fall would have caused the injury, and not the physical disability.

as

We have examined all of the cases upon this subject. The courts of Great Britain have not uniformly followed Wicks v. Dowell & Co. [1905] 2 K. B. 225, 2 Ann. Cas. 732, but finally British authority has adopted its doctrine. The case was brought to secure compensation for a workman who, while employed in unloading coal from a ship, was, while at his work, seized with an epileptic fit, to which he was subject, and fell into the hold of the ship and was injured. In discussing whether the injury "arose out of the employment," Collins, M. R., said: "A man is picked up at the bottom of the hold of a ship, suffering from injuries. What is the cause of his condition? The proximate cause, obviously, is that he has fallen from a height. But it is suggested that, if the occurrence is analyzed, it will be seen that the accident was caused by the idio

pathic disease from which the man was suffering, and that therefore the accident did not arise out of his employment. At that point the authorities come in, to the effect that, although the cause of the fall was a fit, the cause of the injuries was the fall itself, and they are direct authorities that the injury in the present case was caused by an accident.

"Then did the accident arise out of the man's employment? When we get rid of the confusion caused by the fact that the fall was originally caused by the fit, and the confusion involved in not dissociating the injury and its actual physical cause from the more remote cause,

that is to say, from the fit,-the difficulty arising from the words 'out of the employment' is removed. How does it come about in the present case that the accident arose out of the employment? Because, by the conditions of his employment, the workman was bound to stand on the edge of what I may style a precipice, and if in that position he was seized with a fit he would almost necessarily fall over. If that is so, the accident was caused by his necessary proximity to the precipice, for the fall was brought about by the necessity for his standing in that position. Upon the authorities, I think the case is clear; an accident does not cease to be such because its remote cause was the idiopathic condition of the injured man; we must dissociate that idiopathic condition from the other facts, and remember that he was obliged to run the risk by the very nature of his employment, and that the dangerous fall was brought about by the conditions of that employment.'

The reasoning of the master of the rolls applies the rule of proximate cause in accordance with the view of this court to which we have referred. In Wright & Greig v. M'Kendry [1918] 56 Scot. L. R. 39, 41, 12 B. W. C. C. 410, the decedent fell upon the slightly sloping floor of his store, and fractured his skull. The cause of his fall was a uremic fit arising from his kidneys.