rate a claimant's unsupported statement as to injury in the absence of proof to the contrary; 11 but, as was said in the next preceding section relative to proof of accident, evidence which is as consistent with the theory that death or incapacity was due to natural causes as that it was due to injury is insufficient to establish the fact of injury.12 Where injury and accident are proven, and the employer

to handle heavy bales of waste was peculiarly calculated to produce severe abdominal strain, and while at work he was suddenly seized with pain in the abdomen, felt weak, and changed to lighter work, and was later found to have a hernia, it was held there had been an accidental injury. Ratzberg v. Deltox Grass Rug Co., Rep. Wis. Indus. Com. 1914-15, p. 34.

In Maloney v. Waterbury Farrel Foundry & Machine Co., 1 Conn. Comp. Dec. 220, where the deceased workman felt a sudden pain while lifting a heavy crank shaft, and after working for part of the week with continual pain, was found to have an inguinal hernia, it was held he had sustained a compensable injury.

11 In re Davis, Op. Sol. Dept. of L. 740. Claimant contended that she struck and injured her arm while at work in the Bureau of Engraving and Printing; she made no immediate report, as it did not cause incapacity at the time. Review of circumstances showed them to be compatible with the truth of statement, and claim was held to be established. In re Johnson, Op. Sol. Dept. of L. 748. The claimant was not given an opportunity to file a claim immediately following the injury, and owing to misunderstanding it was some time before he was permitted to file same. The local officials in the field of the Forest Service contended that claimant was not injured as alleged, and cited the fact that he had worked in a coal mine subsequent to his alleged injury. Upon consideration of all evidence submitted, it was concluded that claimant had been injured as alleged by him, and the medical evidence further established the fact of an injury from the nature of which incapacity could be presumed. In re Lissy, Op. Sol. Dept. of L. 752.

12 Where a person engaged in cleaning fish had his hand punctured by a fish fin, and disability followed from infection setting in, but two fellow workmen, instead of admitting that the injured workman had told them of the injury on that day, as claimed, stated that the applicant had received a puncture several days previously, and before his employment, at which time they had put peroxide on the hand, and the injured workman admitted a previous fish puncture, the fact of injury by accident while under employment was established. Chamberlain v. Southern Fish Co., 2 Cal. I. A. C. Dec. 424. The employé, a granite cutter, fell in the cutting shed of the subscriber and died four days later from cerebral hemorrhage. The evidence given by fellow employés, who were presumably eyewitnesses of the occurrence, was wholly

contends that the injury is not a new one, but is the result of a former accident, the burden is on him to prove this contention.13 Delay in reporting an injury and presenting a claim therefor under the federal Act does not establish nonexistence of the injury. Evidence that an employé was strong and healthy until he complained of a hurt received while doing heavy lifting, and that he died suddenly a few days thereafter for no other assignable cause, is sufficient to show that he had sustained some internal injury, though there were no external manifestations thereof.14 But evidence of a slight blow on the jaw is not evidence that tuberculosis of the cervical glands causing incapacity is an injury.15

at variance with the weight of the medical testimony. An impartial physician was appointed to perform an autopsy, and his report and evidence showed that the said employé did not in fact receive a personal injury. It was held that the dependent widow was not entitled to compensation. Birnie v. Contractors' Mutual Liability Insur. Co., 2 Mass., Wk. Comp. Cases, 619 (decision of Com. of Arb.).

13 Where a workman, who had wrenched his knee three years before and had several times since felt pain, felt a similar pain on rising from a kneeling position, and found that the cartilage of the knee was ruptured, it was a personal injury by accident; the onus being on the employers to show that there was no new injury. Borland v. Watson, Gow & Co., Ltd. (1912) 5 B. W. C. C. 514, Ct. of Sess.

14 In re Powers, Op. Sol. Dept. of L. 214.

15 In re Hicks, Op. Sol. Dept. of L. 217.

Section

ARTICLE II

ARISING OUT OF AND IN COURSE OF EMPLOYMENT

DIVISION I.-IN GENERAL

101. "In course of" and "out of"-Necessity and distinction. 102. Employments.

DIVISION II.—ARISING IN THE COURSE OF EMPLOYMENT

105. In general.

106. Term of employment.

107. Going to work.

108. Returning from work.

109. Premises of employer.

110. Means of conveyance.

111. Leisure periods-Attendance on personal comforts and necessities.

112. Negligence and recklessness.

113. Disobedience.

114. Deviation from original employment.

DIVISION III.-ARISING OUT OF EMPLOYMENT

115. Risks due to employment.

116. Risks peculiar to employment.

117.

Risks of commonalty.

118. Risks external to the employment, but special exposure to risk due to

119.

120.

121.

employment.

Injury from forces of nature.

Injury caused by coemployé or others.

Injury from horseplay or practical joking.

122. Area of duty-Absence-Entry and exit.

123. Incurring of additional risks.

126. Burden, requisites, and sufficiency of proof.

DIVISION I.-IN GENERAL

§ 101. "In course of" and "out of"-Necessity and distinction According to the usual language of the Acts, to warrant recovery of compensation for the injury or death of a workman, the injury must be one "arising out of and in the course" of his employment.10 This phrase is used in the same sense in the Acts of England and of many of the states, and, though its literary construction is well. settled, its application to particular cases has given rise to differences of opinion not easily harmonized." Attempts of the courts

16 (Laws 1913, c. 198) Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, Ann. Rep. Neb. St. Dept. of L. p. 94; Lanigan v. Lanigan, 222 Mass. 198, 110 N. E. 285; Hills v. Blair, 182 Mich. 20, 148 N. W. 243. Compensable injuries under the Wisconsin Act are such as are incidental to and arise out of the employment. Hoenig v. Indus. Com., 159 Wis. 646, 150 N. W. 996, L. R. A. 1916A, 339. "The language of the Act provides for compensation for injuries accidentally received while in the course of employment. The English Act provides for compensation for injuries accidentally received growing out of the employment. We have had occasion to construe this difference in language between the English Act and our Act heretofore, and we have held that the meaning of the two Acts is the same, and this construction has been upheld by the Supreme Court. The legislative committee in its report says that 'compensation shall be paid when the injury grows out of the employment. It makes no difference who was to blame. It is sufficient that the industry caused the injury.' This language of the legislative committee construing the section referred to can only mean one thing, and that is compensation is to be paid for industrial accidents-accidents that grow out of the industry. Arnold v. Holeproof Hosiery Co., Rep. Wis. Indus. Com. 1914-15, p. 32.

17 Mann v. Glastonbury Knitting Co.,.90 Conn. 116, 96 Atl. 368.

The words "out of and in the course of the employment" admit of an inexhaustible variety of application according to the nature of the employment and the character of the facts proved." Lord Loreburn, L. C., in Kitchenham v. S. S. Johannesburg (Owners of), (1911) 4 B. W. C. C. at p. 312. "There cannot be imagined a more difficult part of this difficult Act to determine than that which relates to injuries by accident arising out of and in the course of a man's employment." Lord Loreburn, L. C., in Warner v. Couchman (1912) 5 B. W. C. C. at p. 179.

Considering that the members of the Wainwright Commission which draft

to formulate general rules relative to the distinction between the terms "out of" and "in the course of" have not been entirely successful. All agree, however, that the terms are not intended to be synonymous. 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.18 But it is difficult, if not impossible, to conceive of an injury arising out of and not also in the course of the employment.19 The importance of distinguishing between these terms arises from the fact that each represents an element essential to, but not authorizing, recovery of compensation without the presence of the element represented, by the other. In other words, even though the injury occurred "in the course of" the employment, if it did not arise "out of the employment," there can be no recovery; and even though it arose "out of the employment," if it did not arise "in the course of the employment," there

ed the New York Act were familiar with the English Act, and that the words "arising out of and in the course of the employment" were taken from that Act, the decisions of the English courts in construing this phrase should be given due consideration in New York. De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761; Newman v. Newman, 169 App. Div. 745, 155 N. Y. Supp. 665.

18 State ex rel. Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176, 151 N. W. 912; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; In re Employers' Liability Assur. Corp., 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Barnes v. Nunnery Colliery Co., Ltd. (1912) App. C. 44 (Eng.); Plumb v. Cobden Flour Mills Co., Ltd. (1914) App. C. 62 (Eng.).

19 "Many accidents occur in the course of, but not out of, the employment; but I am unable to think of any that could arise out of, and not also in the course of, the employment." Farwell, L. J., in Leach v. Oakley, Street & Co. (1911) 4 B. W. C. C. at p. 98. "I think it is impossible to have an accident arising out of, which is not also in the course of, the employment; but the converse of this is quite possible, as, for instance, if a workman were shot by a lunatic, or struck by lightning, while at the moment engaged in his work. In a great many cases, however, the two phases do not admit of separate consideration, and the present is one of those cases. If this accident took place in the course of the workman's employment, it also indubitably arose out of that employment; if not, not." Lord President, in McLauchlan v. Anderson (1911) 4 B. W. C. C. at p. 379.

HON.COMP.-21