Definitioncourse of employment.

Under the facts and circumstances thus narrated by the plaintiff himself, can it be said that the injuries sustained by him arose out of and in the course of his employment? "In the course of"-yes. If he had died of heart failure, or had been stunned by lightning, assaulted by a drunken stranger, or shot by a maniac, while at work, such mishap would have arisen in the course of his employment. "In the course of his employment," as a phrase, simply means that it happened while he was at work in his employer's service. The phrase relates to the time, place, and circumstances under which the accident occurred. But it is not sufficient to impose liability upon the injured workman's employer that the injury arose in the course of the employment. There is another and more important prerequisite. The injury must also arise out of the employment. It must arise because of it, or in some reasonable way be traceable to it. The injury must in some sense be due to the employment. The philosophy on which the Workmen's Compensation Act is founded is that the wear and tear of human beings in modern industry should be charged to the in

dustry, just as the wear and tear of machinery has always been charged. And while such compensation is primarily chargeable to the industry, and consequently to the employer or owner of the industry, eventually it becomes a part of the fair money cost of the industrial product, and to be paid for by the general public patronizing such product.

In McRoberts v. National Zinc Co. 93 Kan. 364, 366, 367, 144 Pac. 248, it was said: "In the enactment of the Compensation Law the legislature recognized that the common-law remedies for injuries sustained in certain hazardous industries were inadequate, unscientific, and unjust, and therefore a substitute was provided by which a more equitable adjustment of such loss could be made under a system which was intended largely to eliminate controversies and litigation, and place the burden of accidental injuries incident to such employments upon the industries themselves, or rather upon the consumers of the products of such industries."

"There is no doubt that it was the legislative intent to compensate workmen for injuries resulting from industrial accidents, and that such compensation is charged against the industry because [with or without fault] it is responsible for the injury." Klawinski v. Lake Shore & M. S. R. Co. 185 Mich. 643, 645, L.R.A.1916A, 342, 343, 152 N. W. 213; Industrial Commission v. Etna L. Ins. Co. 64 Colo. 480, 3 A.L.R. 1326, 1339, 174 Pac. 589.

But in order to charge the industry with compensation for the workman's injury, such injury must in some sense, in some degree, be due to the workman's employment in the industry.

In discussing the phrase "out of the employment" in McNicol's Case, 215 Mass. 497, 499, L.R.A.1916A, 306, 307, 102 N. E. 697, 4 N. C. C. A. 522, it was said: "It 'arises out of the employment, when there is apparent to the rational mind, upon consideration of all the circum

But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

In Coronado Beach Co. v. Pillsbury, 172 Cal. 682, L.R.A.1916F, 1164, 158 Pac. 212, 12 N. C. C. A. 789, it was said: "The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employee's work, or to the risks to which the employer's business exposes the employee. The accident must be one resulting from a risk reasonably incident to the employment.

It arises out of the occupation when there is a causal connection between the conditions under which the servant works and the resulting injury. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." Syl. ¶ 4.

But how can this plaintiff's misfortune be charged against the industry in which he was employed? How can it be said that his injury arose out of his employment? The injury to his back was occasioned by his epileptic fit. It was the unfortunate effect of it, and not of his work. His fit was not provoked or induced or rendered more likely to

He For over

happen because of his work. was subject to such fits. twenty-five years he had been thus afflicted, with almost monthly regularity. We have had to consider a case (Madey v. Swift & Co. 101 Kan. 771, 168 Pac. 1105) where a workman, while standing on a wet and slippery platform in a packing house, in the course of his employment, fell backwards, and received injuries from which he died. There was some evidence tending to show that the workman fell while in an epileptic fit and that his death was caused by epilepsy. But in that case there was a question of fact whether he fell because of the slippery platform, which would be an accident arising out of his employment, or by reason of the epileptic fit, which would not be such an accident.

Cases there are too, many of them, where workmen by reason of constitutional infirmities are predisposed to sustain injuries while engaged in their labor, yet the leniency and humanity of the law permit them to recover if the employment itself contributes in some degree to bring about or intensify the physical condition which renders them susceptible to such accident and consequent injury. But in all such cases the employment must have some definite, discernible relation to the accident. Thus, in Gilliland v. Ash Grove Lime & Portland Cement Co. 104 Kan. 771, 180 Pac. 793, a workman whose labors in the dust of a cement mill for three years had impaired his lungs, and who had not fully recovered from typhoid fever, miscalculated his strength while swinging a heavy sledge to break rock in a quarry, and suffered a pulmonary hemorrhage from which he died. It was held that, notwithstanding his physical weakness predisposing him to such fatality, his employment was a contributing cause of the accident; that it arose out of his employment; and his dependents were permitted to recover compensation for his death. The court cited pertinent and instructive English

cases, and concluded: "It is not material that the workman's blood vessels were weakened by disease, or that he was predisposed to hemorrhage because, for example, he had breathed the dust of the sacking department for three years. The statute establishes no standard of health for workmen, entitling them or their dependents to compensation, and if the added factor of physical exertion in the employment were required to effect the lesion, and did so, the injury arose out of the employment. That the injury occurred in that way, and is referable to a definite time, place, and circumstance, is indicated by the workman's apparent good health and strength, the suddenness and profusion of the hemorrhage, the absence of previous extravasation of blood, and other circumstances."

See also Blackburn v. Coffeyville Vitrified Brick & Tile Co. 107 Kan. 722, 193 Pac. 351.

In this case, if the added factor of his labor had aided in provoking the epileptic fit, it would bring the present case within the rule, and we would not hesitate to say that there was an accident arising out of the employment. But here there was no factor inherent in the employment or arising out of it which can be characterized as an accident which can be added to the disease as a contributing cause of plaintiff's injury.

Our attention is directed to some border-line cases where compensation was allowed.

In an English case (Wicks v. Dowell & Co. [1905] 2 K. B. 225, 74 L. J. K. B. N. S. 572, 53 Week. Rep. 515, 92 L. T. N. S. 677, 21 Times L. R. 487, 2 Ann. Cas. 732), where an employee, while unloading coal near an open hatchway of a ship was seized with an epileptic fit and fell into the hold and was seriously injured, it was held that regard must be had to the proximate cause of the accident resulting in the injury, "which was to be found in the necessary proximity of the workman to the hatchway,"

and that it therefore arose "out of" as well as "in the course of" his employment.

In Driscoll v. Employers' Liability Assur. Corp. (1912-13) Mass. C. W. C. A. 125, compensation was allowed for the death of an employee who, while driving an express wagon, was seized with an epileptic fit, and fell from the wagon and fractured his skull.

We would not say dogmatically that these cases were erroneously decided, but certainly they are border-line cases. Perhaps they can be justified because of the substantial and increased risk to which the workmen in each of these cases were exposed, owing to the position in which they had to work. We note that the Driscoll Case (Mass.) was decided on the authority of the Wicks Case (Eng.). The Wicks Case, supra, has not been consistently followed in England. Thus in Butler v. Burton-on-Trent Union, 106 L. T. N. S. 824, 5 B. W. C. C. 355, [1912] W. C. Rep. 222, the master of a workhouse, while on duty, was sitting on the top of a flight of steps at the hospital in which he was employed. He was suffering from tuberculosis, and while seized with a fit of coughing became dizzy and fell down the steps and sustained fatal injuries. Compensation was denied, the court holding that the accident did not arise out of the employment; that it was not due to the nature of the employment, nor to anything to which the employment required him to expose himself.

In Honor v. Painter, 4 B. W. C. C. 188, a workman while driving a delivery van was seen to fall from his van, "in what looked like a fit,

it may not have been,—and died three weeks later." The court of appeal held that these facts did not establish, even by legitimate inference, that the accident and injury arose out of his employment.

In 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, a hack driver

was

had an attack of dizziness and fell from his vehicle and was injured. Compensation was allowed, but the court said: "The evidence does not show, as claimed by the appellant, that the petitioner's petitioner's fall 'caused solely by the workman's previously diseased condition,' nor does the justice of the superior court so decide; the justice says in his decree, "The fall probably being due to dizziness or unconsciousness induced by a disease from which he was suffering,' etc. But the decree also finds that the accident was one arising out of said employment;' there is at least as much evidence that the fall was due to an unexpected and accidental lurch of the hack into the gutter and towards or against the curbstone, as that it was due to dizziness or unconsciousness induced by disease. It seems to this court that the decision and the decree appealed from embody a conclusive finding of fact that dizziness or unconsciousness was not the sole cause of the fall, and that there was evidence from which the justice could find, as he did, that the accident arose out of the employment."

In Kowalski v. Trostel & Sons (1915) 4 Ann. Rep. (Wis.) I. C. 17, a workman claimed that he bumped his head against an overhanging door while working in the respondent's plant, and fell in an unconscious state, and that he remembered nothing further until he roused from his condition in the hospital several days later. On ar

rival at the hospital he was found to have a dislocated shoulder, a contused wrist, and an incomplete inguinal hernia. No injuries of any sort were found on or about his head. The commission disbelieved his testimony that he had struck his head against the door, and found from the other evidence that his injuries were caused by his fall, and that the fall was the result of a faint or epileptic seizure, and his claim for compensation was denied.

In the case at bar the jury rendered special findings, one of which (No. 5) was that the proximate cause of the accident was not due to the plaintiff becoming dizzy and falling. The plaintiff was himself more candid and truthful than the jury, as is disclosed by his testimony quoted above.

I. Introduction, 96.

II. Fits; epilepsy, 97.

III. Fainting; dizziness, 99.

IV. Mental condition; lapse of memory,

100.

V. Tuberculosis, 100.

VI. Degenerated blood vessels, 101.

VII. Intestinal disease or weakness, 102. VIII. Hernia, 102.

IX. Syphilis; gonorrhea, 104.

X. Sensitive or wounded skin, 105.

XI. Delirium tremens, 106,

XII. Disease of eyes, 106.

XIII. Influenza, 107. XIV. Gout, 107.

As to right to compensation in case of death from heart disease, see annotion to Carroll v. Industrial Commission, post, 110.

This annotation does not cover cases where an employee sustains two injuries within a short period, and the question is whether the second injury was the natural result of the original injury; neither does it go into the question of the effect of a previous diseased condition on the amount of compensation recoverable.

1. Introduction.

It is an established rule that the fact that an employee was suffering from a diseased condition does not necessarily bar him from a right to compensation in case of injury and disability, but that an award may be had in case of a disability which was proximately caused by an accident, or personal injury, arising out of and in the course of the employment, which accelerated or aggravated an existing disease.

Illinois. Big Muddy Coal & I. Co. v. Industrial Bd. (1917) 279 Ill. 235, 116 N. E. 662; Peoria R. Terminal Co. v. Industrial Bd. (1917) 279 Ill. 352, 116 N. E. 651, 15 N. C. C. A. 632; Rockford City Traction Co. v. Industrial Commission (1920) 295 Ill. 358, 129 N. E. 135; Centralia Coal Co. v. Industrial Commission (1922) 301 Ill. 418, 134 N. E. 174.

Indiana.-Re Bowers (1917) 65 Ind. App. 128, 116 N. E. 842; Indianapolis Abattoir Co. v. Coleman (1917) 65 Ind. App. 369, 117 N. E. 502; Puritan Bed Spring Co. v. Wolfe (1918) 68 Ind. App. 330, 120 N. E. 417; Indian Creek Coal & Min. Co. v. Calvert (1918) 68 Ind. App. 474, 119 N. E. 519, 120 N. E. 709; General American Tank Car Corp. v. Weirick (1921) Ind. App.

133 N. E. 391. Kansas.-Blackburn v. Coffeyville Vitrified Brick & Tile Co. (1920) 107 Kan. 722, 193 Pac. 351.

Louisiana.-Behan v. J. B. Honor Co. (1917) 143 La. 348, L.R.A.1918F, 862, 78 So. 589.

V. Ward

New York. Mazzarisi (1916) 170 App. Div. 868, 156 N. Y. Supp. 964; Hackford v. Veeder (1916) 176 App. Div. 924, 162 N. Y. Supp. 1122; Banks v. Adams Exp. Co. (1916) 176 App. Div. 916, 162 N. Y. Supp. 479; Van Keuren v. Divine & Sons (1917) 179 App. Div. 509, 165 N. Y. Supp. 1049, affirmed in (1918) 222 N. Y. 648, 119 N. E. 1083; Cook v. New York, O. & W. R. Co. (1917) 179 App. Div. 967, 166 N. Y. Supp. 1090; Finkelday v. Henry Heide (1920) 193 App. Div. 338, 183 N. Y. Supp. 912, affirmed in (1921) 230 N. Y. 598, 130 N. E. 909; McGoey v. Turin Garage & Supply Co. (1921) 195 App. Div. 436, 186 N. Y. Supp. 697.

Pennsylvania.-Clark v. Lehigh Valley Coal Co. (1919) 264 Pa. 529, 107 Atl. 858.

Wisconsin.Milwaukee v. Industrial Commission (1915) 160 Wis. 238, 151 N. W. 247; Casper Cone Co. v. Industrial Commission (1917) 165 Wis. 255, L.R.A.1917E, 504, 161 N. W. 784; Hackley-Phelps-Bonnell Co. v. Industrial Commission (1920) 173 Wis. 128, 179 N. W. 590.

England. Lloyd v. Sugg [1900] 1 Q. B. 486, 69 L. J. Q. B. N. S. 190, 81 L. T. N. S. 768, 16 Times L. R. 65; Willoughby v. Great Western R. Co. (1904) 6 W. C. C. 28, 117 L. T. Jo. 132; Wicks v. Dowell & Co. [1905] 2 K. B. 225, 74 L. J. K. B. N. S. 572, 53 Week. Rep. 515, 92 L. T. N. S. 677, 21 Times L. R. 487, 2 Ann. Cas. 732; Ismay v. Williamson [1908; H. L.] A. C. 437, 77 L. J. P. C. N. S. 107, 99 L. T. N. S. 595, 24 Times L. R. 881, 52 Sol. Jo. 713, 1 B. W. C. C. 232; Ystradowen Colliery Co. v. Griffiths [1909]