McCormick Lumber Co. v. Department of Labor & Industries

¹ Reported in 108 P.2d 807. Emma Christina Sellin, whose husband, Olof Ferdinand Sellin, was engaged in extrahazardous employment at the time of his death, filed with the department of labor and industries a claim for a widow's pension. The claim was rejected by the supervisor of the department on the ground that the workman's death was not the result of an injury as defined and contemplated by the workmen's compensation act. On rehearing by the joint board, however, the claim was allowed. Upon the application of the employers of the workman, the matter was again reheard, and, at the conclusion of that hearing, the joint board made an order sustaining the allowance of the pension, and, subsequently, made a further order charging the sum of four thousand dollars against the employers' cost experience. From those orders, the employers appealed to the superior court, and from an adverse judgment by that court have appealed to this court.

Stated broadly, the question presented here is whether or not the death of the workman was caused by an injury sustained in the course of his employment, within the contemplation of the workmen's compensation act.

Olof Ferdinand Sellin was, at the time of his death on January 11, 1937, sixty-one years of age. He had been a logger all of his life, but during the two years immediately prior to January, 1937, his employment had been limited to six weeks' work in July and August of 1936. Prior to 1935, he had been employed intermittently by appellant McCormick Lumber Company, which we will hereinafter refer to as though it were the sole appellant.

In outward appearance, Sellin was a strong, robust man, and, so far as the record shows, had never had any serious illness nor had he ever complained of being sick or unable to work. However, as described by a fellow workman, he was "kind of soft" from having been out of work so long. It appears from some of the testimony that in time past Sellin had been a very heavy drinker of intoxicating liquor, and that, on that account, a former employer had discontinued giving him further work. It is undisputed, however, that Sellin was, during recent years at least, an efficient and conscientious workman. Although he, at times, drank to excess, he limited his indulgences to week ends, and drank only when away from his work.

On Monday, January 4, 1937, Sellin entered the employ of appellant as a pile cutter. On the day before, he had gone from his home in Seattle to Port Ludlow, located on the west side of Puget sound, where the work was to be done. During the course of that trip, he imbibed an excessive amount of intoxicating liquor and by Sunday night was very drunk. He reported for work the next morning, however, and worked throughout the week. So far as the record shows, he did his work satisfactorily. At the end of the week, and after leaving the logging camp, he again procured intoxicating liquor and became inebriated, though not to the extent of his experience the week before.

On Monday morning, January 11, 1937, Sellin arose, apparently as usual, and ate a hearty breakfast. In company with Ed Olson, a fellow workman, he rode on the company's speeder from the camp to the point where the pile cutting was to be done, a distance of about three miles. Olson was seventy-four years of age, but had been working regularly and was in good physical condition. The men carried with them a saw, which had recently been sharpened, two axes, and two hammers. It was a cold, though quiet, morning, the temperature being below the freezing point, and the men were heavily clad.

Arriving at their destination at about eight o'clock, Sellin and Olson walked a distance of approximately three hundred feet and entered upon their work of cutting piles. The ground in that vicinity was open and level. Each of the men "undercut" a fir tree approximately twenty-four inches in diameter, and then both of them sawed down the two trees which had been undercut. The work of undercutting and sawing down the two trees consumed about twenty or twenty-five minutes. Sellin, complaining that his feet were cold, thereupon built a fire nearby. After warming himself before the fire for fifteen or twenty minutes, he resumed his work and proceeded to undercut a third tree, preparatory to sawing it down. The process of undercutting the tree to a depth of four or five inches consumed about five minutes.

The two men then took the saw, which was six or seven feet long, and weighed five or six pounds, and began sawing the tree at the point of the undercut, which was three or four feet above the ground. As they sawed, the men were stationed on opposite sides of the tree and occupied normal standing positions. The work of undercutting was not particularly difficult, nor was any unduly strenuous effort required to pull the saw. The men were working at an ordinary speed, although it would have been considered fast for one who was not accustomed to the work or who was not in good physical condition. Sellin had made no complaint other than that he was cold, and seemed to be working in his customary manner.

The two men continued to saw for about five minutes, and had reached a point about two-thirds of the way through the tree, when suddenly Olson felt the saw jerk and heard Sellin groan. On looking around, Olson discovered that Sellin had fallen to the ground. It appears that Sellin had suddenly collapsed and died. During the sawing process, the tree had not swayed nor had the saw pinched. The jerk apparently was caused by Sellin's collapse. According to Olson's statement, there was no evidence that Sellin had been perspiring.

A post-mortem examination of the body revealed that the deceased had been suffering from chronic conditions of endocarditis, myocarditis, and gastritis, which conditions, according to the testimony of the coroner, had arrived at an acute stage about a week before the death. The coroner also found a highly inflamed condition of the decedent's stomach and at first suspected the presence of an irritant poison, but, on being informed that the deceased had been drunk a short time before, concluded that it was alcoholic poisoning. No analysis of the gastric contents was ever made.

The evidence as to the cause of death consisted of expert opinions, and, as is so often the case, those opinions were in direct conflict. The coroner, a physician, testified that, in his opinion, the death was caused by the conditions found in the post-mortem examination and as above related, and that such conditions would cause death even in the absence of any exertion on the part of the afflicted individual. To rebut that testimony, the department called as witnesses two heart specialists, residents of Seattle, one of whom had performed, during the preceding three years, over 1650 autopsies, and the other of whom had limited his practice for over eighteen years to diseases of the heart.

The first of those two witnesses expressed his opinion unequivocally that the exertion of the workman at the time and under the circumstances described above was a very definite, contributing factor to his death, and that, while the excessive use of alcohol would account for the gastritis that was found, it had no particular bearing upon the workman's demise. The other physician, in response to a lengthy hypothetical question embodying the evidence in detail, testified as follows:

"A. I would say that the exercise that he [Sellin] undertook was a contributing factor in his death. Q. Will you state why, Doctor? A. Because I think that called upon his heart for more exertion than his heart at that particular time was able to perform."

As already indicated, the joint board, after a review of the testimony, made a finding that Sellin's death was attributable to the exertion undertaken at the time of his injury and concluded that the death was compensable under the statute. Upon a review of the same evidence the superior court affirmed the joint board's decision.

[1] Under the statute, in full force and effect at the time of Sellin's death, the decision of the department is to be taken by the court as being prima facie correct, and the burden of proof is upon the party attacking the decision. Rem. Rev. Stat., § 7697 [P.C. § 3488]. Our cases upholding that rule are legion, and need not be cited.

An examination of the record leads us to the conclusion that the decision of the joint board is supported by the great preponderance of the evidence. This conclusion would ordinarily be sufficient to dispose of the case, but appellant has raised a question which it asserts must, if properly decided, result in a reversal of the action taken by the joint board in allowing the pension.

Appellant's contention is that, where, as in this instance, a workman, who is suffering from an acute, preexisting diseased condition, engages in his usual work under circumstances which require no extra or unusual strain or effort, and suddenly dies while engaged in that work, his death is not the result of an "injury," as defined by the workmen's compensation act. The proposition thus advanced requires an examination and analysis of former and present statutes affecting the question, and a consideration of a number of our decisions construing those statutes.

The original workmen's compensation act, adopted in 1911, defined "injury" as follows:

"The words injury or injured, as used in this act, refer only to an injury resulting from some fortuitous event as distinguished from the contraction of disease." Laws of 1911, chapter 74, p. 346, § 3.

In 1926, this court had occasion to construe that statute in the case of Frandila v. Department of Labor Industries,137 Wash. 530, 243 P. 5. In that case, the workman, while engaged in digging a ditch and chopping a root at the bottom of the ditch, suddenly collapsed, and within about fifteen minutes died. The work of digging and chopping was "hard." The testimony established that the workman was suffering from hardening of the arteries and that he died from either a rupture of a blood vessel or from embolism. The widow's claim for compensation was rejected by the department on the ground that the death of the workman was not caused by a "fortuitous event," in that there was no unusual strain or exertion, but was occasioned by hardening of the arteries, a slow, progressive disease which, when sufficiently advanced, produces death though there be but little, if any, exertion. The superior court reversed the action of the department and ordered that the claim be allowed. In affirming the superior court, this court prefaced its pronouncement of the law with the statement that the hardened arteries, coupled with overexercise in the course of the employment, caused either the hemorrhage or embolism, and that the chopping of the root was a definite and particular occurrence which was a contributing, proximate cause of the death. The court then said in its opinion:

"The question of whether an injury has been the result of an accident or an accident arising out of the employment, which are narrower terms than fortuitous event, has been considered by many courts, and the result of these decisions seems to be, that an accident exists when a man undertaking work is unable to withstand the exertion required to do it, whatever may be the degree of exertion used or the condition of the workman's health."

In support of that statement of the law, the opinion reviewed many cases, both American and English. Lengthy quotation was made from, and particular emphasis was laid upon, the English case ofClover, Clayton Co. v. Hughes, 26 Times L.R. 359, in which the Lord Chancellor said, among other things:

"An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health."

The opinion in the Frandila case also reviewed certain of our own decisions involving a consideration of the question of "fortuitous event," and concluded that those cases were in harmony with the cases referred to from other jurisdictions. Near the conclusion of theFrandila opinion, however, this court made the following statement:

"Where a workman, not in perfect health, during the course of his employment makes an extra exertion which, in addition to his infirmity, causes an injury, such injury is a fortuitous event, and brings him within the operation of the compensation." (Italics ours.)

In view of the fact that the court in the Frandila case had said, in the early part of its opinion, that the work of digging and cutting roots was "hard," and because of the use of the words "extra exertion" in the latter part of the opinion, appellant here insists that conditions of that kind must be present in order to render the injury and resulting death compensable.

Following the Frandila case, supra, came the case of Colev. Department of Labor Industries, 137 Wash. 538, 243 P. 7. In that case, a workman, comparatively vigorous and well for one of his age, and who had been accustomed to hard work, was, upon a certain occasion, engaged in piling heavy timbers. There was testimony that the workman was afflicted with heart and artery disease, although he did not seem to be aware of it. While "exerting practically the whole of his strength against the timber," he suddenly became conscious of intense pain in his chest, about the heart, and sat down in a semi-fainting condition. The reason which led this court to the conclusion that the circumstances were sufficient to support a finding of a "fortuitous event," was that,

"While this affliction, suddenly coming upon Cole, may have been, in a sense, at or near the culmination of his general affliction, it, nevertheless, seems clear from the testimony that what he there did, by putting forth his strength, caused the breaking or giving away of something about his heart."

The Frandila case, supra, was cited as being decisive of the question then before the court. Appellant here, however, points out the fact that, in the Cole case, again, the workman had exerted practically the whole of his strength.

At the very next session of the legislature, following the decision in the Frandila and Cole cases, supra, the definition of the word "injury" was materially changed to read as follows:

"The word ``injury' as used in this act means a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical condition as results therefrom." Laws of 1927, chapter 310, p. 815, § 2, Rem. Rev. Stat., § 7675; reenacted by Laws of 1939, chapter 41, p. 121, § 2, Rem. Rev. Stat. (Sup.), § 7675 [P.C. § 3470].

Since the adoption of that amendment, there have been a number of cases, cited by counsel, which evince our understanding and interpretation of the statute as it now stands. For convenience of discussion, we classify the cases in three groups.

The first group includes such cases as Pellerin v. WashingtonVeneer Co., 163 Wash. 555, 2 P.2d 658, and Flynn v.Department of Labor Industries, 188 Wash. 346, 62 P.2d 728. In the Pellerin case, which involved an employee who had contracted carbon bisulphide poisoning, it was held that the term "injury" applied strictly to sudden and tangible happenings of a traumatic nature, occurring from without, and producing an immediate or prompt result, as distinguished from an occupational disease. In the Flynn case, it was held that the word "injury," as defined in the statute, did not cover a situation where a workman swallowed a portion of chewing tobacco, causing him to choke and cough and producing a dilation of the heart which resulted in sudden death. It was held that the "happening" was neither "from without" nor of a "traumatic nature." Those cases, though citing and correctly construing the statute, are, manifestly, of no aid to us here because of their peculiar facts.

The second group of cases includes the following: Metcalf v.Department of Labor Industries, 168 Wash. 305, 11 P.2d 821;McArthur v. Department of Labor Industries, 168 Wash. 405,12 P.2d 418; McKinnie v. Department of Labor Industries,179 Wash. 245, 37 P.2d 218; Smith v. Department of Labor Industries, 179 Wash. 501, 38 P.2d 212; O'Toole v.Department of Labor Industries, 182 Wash. 202, 46 P.2d 388; and Devlin v. Department of Labor Industries, 194 Wash. 549,78 P.2d 952.

In Metcalf v. Department of Labor Industries, supra, a workman, while occupying an unusual position on the ground, was rapidly sawing a log, in order to remove an obstruction in a road. The task required more than ordinary exertion. While engaged in the work, the man fell over, and, without regaining consciousness, died of a cerebral hemorrhage. In upholding a claim for compensation, this court said:

"The fact that his arteries had so hardened that death was likely to result ``from a sudden and tangible happening of a traumatic nature,' does not deprive Mr. Metcalf's widow and minor child of their right to statutory benefits. It was not the legislature's purpose to limit the provisions of the workmen's compensation act to only such persons as approximate physical perfection."

In the McArthur case, supra, a workman, while in an unusual position, was exerting great force in shoving a heavy slab of stone into place. As a result, he ruptured a duodenal ulcer. The workman's own physician and medical witness testified that, had there been no preexisting disease, the injured workman probably would not have been disabled at all. In affirming a judgment for the workman, this court held that the case was controlled by the Metcalf case, supra, quoting the concluding sentence of the paragraph set forth above.

In McKinnie v. Department of Labor Industries, supra, anEn Banc decision, a workman sixty-four years of age was engaged in helping to moor a large steamship. As a result of a tremendous effort exerted by him in pulling upon one of the mooring lines, he suffered a severe strain, which produced a mesenteric thrombosis, causing his death nine days later. The workman had been afflicted with hardening of the arteries for some years immediately prior to his death. It was held, by a divided court, that the widow of the workman was entitled to a pension. TheMetcalf and McArthur cases, supra, were approved, and reference was made to the holding in the Frandila case,supra, that the workmen's compensation act applies

". . . where it appears that the workman collapsed from severe or over-exercise, coupled with preexisting disease, such as hardening of the arteries."

The opinion also mentioned, as "two excellent cases," FalmouthDocks Engineering Co., Ltd. v. Troloar, Eng. L.R., App. Cases 1933, p. 481, and Jones Paton, Ltd. v. James, Eng. L.R., App. Cases 1933, p. 501. From the latter case, the following statement was quoted:

"``An accident arises out of a workman's employment within the meaning of s. 1 of the Workmen's Compensation Act, 1925, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health. In each case the arbitrator adjudicating upon a claim for compensation must consider whether in substance, so far as he can judge on such a matter, the accident came from the disease alone, so that whatever the man had been doing it would probably have come all the same, or whether the employment contributed to it.'"

In Smith v. Department of Labor Industries, supra, a workman, sixty-eight years of age and suffering from chronic myocarditis, came to his death while violently exerting himself in helping to load and unload certain ground scrapers. The department contended that his death was due to the natural progress of the disease. This court held that it was immaterial that the workman was suffering from a chronic disease from which he "``might have died just the same if he hadn't been doing a thing,'" and stated that the real question was whether or not

". . . the death was caused by a strain arising out of the ordinary work of the deceased operating upon a condition of body which was such as to render the strain fatal."

Our former cases, together with others from foreign jurisdictions, were cited and approved and towards the close of the opinion it was said:

"The case at bar is within the rule that an accident arises out of a workman's employment within the meaning of the workmen's compensation act when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health."

In O'Toole v. Department of Labor Industries, supra, a workman, apparently in good health, died suddenly while in the course of his employment as a choker setter. No one saw the workman at or immediately prior to the time of his death, and just how the event occurred no one knew. It appeared later, however, from a post-mortem examination, that the workman had for some time been in a serious physical condition due to arteriosclerosis. This court held that the evidence was insufficient to justify the findings of the trial court to the effect that there had been a severe or violent exertion on the part of the workman, or that any such exertion had caused the workman's death. Appellant here considers that case as strong authority for the proposition that an injury to be compensable must have been sustained through exertion that is "severe and strenuous."

The case of Devlin v. Department of Labor Industries,supra, presented another situation wherein a workman afflicted with heart disease had engaged in strenuous labor, during which he was seized with a heart attack, resulting in his death nine days later. The opinion in that case defined the words "strain" and "overexertion," as used in the trial court's instructions, to mean, or imply, tension and excessive physical effort, within the rule announced in the preceding cases that:

"An accident exists when a man undertaking work is unable to withstand the exertion required to do it, whatever may be the degree of exertion used or the condition of the workman's health."

It will be observed that, in all of the six cases included in the second group, the disease with which the workman was afflicted had reached an advanced stage, and, as a result thereof, death was possible, or likely, to occur at any time. In five of those cases, compensation was allowed. In the one case where recovery was not allowed, the O'Toole case, the evidence was found to be insufficient to establish a cause of action compensable under the statute. It should also be noted that, in the same five of those six cases there was evidence of some excessive or unusual strain exerted by the workman at the time of the particular occurrence. And, in the opinion in each of those cases, some such expression as "greater strain than usual," "violent effort," "great force in an unusual position," "severe and strenuous exertion," or "overexercise" was used.

Appellant therefore contends that those decisions were rested upon the existence of those particular factors, and that they established a rule and precedent for the determination of cases according to the presence or absence of such factors. Specifically, appellant's contention is that, where a workman is afflicted with some serious disease which is likely to eventuate in death at any time, his death or incapacity, though sustained during the time that he is actually working, is not compensable, unless he was being subjected at the time to some severe or unusual strain; and that, where the work is being done under usual conditions with normal exertion, and death or incapacity results, there is no injury within the meaning of the statute.

We will consider that contention further after we have referred to the third group of cases, but it is appropriate to say at this point that the cases thus far considered uniformly declare or recognize these two principles: (1) That the provisions of the workmen's compensation act are not limited to such persons only as approximate physical perfection, and (2) that an accident arises out of a workman's employment within the meaning of that act when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman's health.

The third group of cases comprises Daugherty v. Department ofLabor Industries, 188 Wash. 626, 63 P.2d 434, and Bergagnav. Department of Labor Industries, 199 Wash. 263,91 P.2d 551. Both of those cases were En Banc decisions, were recently decided, and represent a division of opinion on the part of the members of this court.

In the Daugherty case, supra, a brakeman of a logging train was overcome while uncoupling one of the cars from the remainder of the train. Eyewitnesses testified that the workman stooped over as if intending to "cut the air" by uncoupling the air line; that he then suddenly stood up, lurched backwards with his hands in the air, and fell to the ground. He died within fifteen minutes without having regained consciousness.

A physician, who had attended the workman about two weeks before his death, testified that a physical examination made at that time revealed some tenderness in the abdomen, a slight enlargement of the heart, a systolic murmur, and some hardening of the arteries. In the opinion of the witness, the condition of the workman was not serious at that time, and the workman might have lived an indefinite number of years. However, as stated in the opinion of this court, the workman might, as the result of his preexisting condition, have dropped dead at the precise moment of uncoupling the car. The department contended that death was the immediate result of the natural physical condition of the man, and was not in any way contributed to by the work that he was then doing. The claimant, on the other hand, contended that the workman had been struck by the heavy iron coupling attached to the air line. The only evidence of a blow from the coupling was an abrasion which was subsequently discovered upon the workman's chest, in the region of the heart. A nurse, however, testified that, in an attempt to revive the workman, shortly after the occurrence, she had applied a hot water bottle to his chest and that the bottle had left a burn. The trial court found from the evidence that there had been a blow from the coupling and that upon receiving the blow, the workman had staggered from between the cars, stumbled, and fallen to the ground with such force as to cut a gash in the back of his head. In upholding the claim of the widow, this court said:

"The workmen's compensation law is intended to compensate for the hazards of employment. An element of this hazard to a workman not in perfect health or suffering from some progressive ailment, is the possibility that, in his impaired condition, he may be less able to withstand an untoward incident occurring in the course of employment. In this case, the workman, with a wife and eight small children to support, had no choice but to carry on. The act does not contemplate that its benefits shall be limited to those workmen only who can register a perfect physical score.. . .

"While the blow from the air hose, found by the court, might not have been sufficient, in the case of a man in normal health, to have caused death, yet, as testified by medical experts, it could, in the weakened condition of decedent's heart have caused death."

The Metcalf, McKinnie, and Smith cases, supra, were cited, and the rules hereinbefore stated were reiterated.

In Bergagna v. Department of Labor Industries, supra, a coal miner sixty-one years of age suffered a heart attack while at work in a mine, and died a few minutes thereafter. It appeared from the evidence that, three or four hours before the attack, the workman had sustained a fright, occasioned by the fall of a quantity of rock in the mine. An autopsy performed upon the decedent disclosed that he had been afflicted with fatty degeneration of the heart, chronic myocarditis of long standing, and hardening of the arteries. The immediate cause of death was heart failure. A widow's claim for pension was rejected by the department on the ground that there was no proof of injury to the workman during the course of his employment, and that death was not the result of trauma as defined in the workmen's compensation act. The superior court affirmed the departmental decision. On appeal to this court, the case was heard En Banc, and the judgment of the superior court was reversed. We quote, from the majority opinion in that case, two paragraphs which indicate the reasoning employed by the court and the basis for its decision:

"This case is one of a class which courts have found not easy of solution. Our own decisions have accepted the rule that an accident arises out of the employment, under the terms of the workmen's compensation act, when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the man's health. [Citing a number of cases to which reference has been made above.] . . .

"Here, the workman collapsed, while engaged in heavy muscular work, a relatively short time after he had experienced some shock or fright as the result of the fall of a mass of rock from the roof of the mine, in close proximity to him. Considering the condition of his heart, as developed by the autopsy, it hardly requires the testimony of medical men to establish that the man's collapse could have been, and, indeed, in all probability was,precipitated by the degree of exertion required for his work,even if the effect of shock or fright be eliminated. True, he could have died in bed or away from the mine. But he did not die in bed. He was stricken in the mine while engaged in work that admittedly could subject his heart to a strain beyond its capacity to withstand." (Italics ours.)

It will be observed that, in both the Daugherty case and theBergagna case, supra, there was an element which is not present in the case at bar. In the Daugherty case, there was a blow, and in the Bergagna case there was fright, although in the latter case exertion was considered to be the efficient cause, regardless of the element of fright. In the case at bar, we have simply exertion on the part of the workman, coupled with a preexisting disease.

In addition to the cases already cited in this opinion, we call attention to a recent decision of this court rendered subsequent to the time of argument of the present appeal: Barnesv. Department of Labor Industries, 6 Wash. 2d 155,106 P.2d 1069.

In that case, a machinist was engaged with the aid of two assistants, in changing the main gear on a locomotive crane. The work entailed exceptionally strenuous and unusual exertion on the part of the machinist in lifting a section of a cogwheel. After the task had been completed and the workman had gone home, he complained of pain in his chest and in the region of his heart. He returned to his place of employment on the third day thereafter, and, while engaged in doing some comparatively light work, suddenly collapsed, and eleven hours later died. A post-mortem examination disclosed that death had resulted from a thrombus, or blood clot, which had completely blocked the right coronary artery. Although there was considerable expert testimony to the contrary, the joint board found, in effect, that the decedent's exertion was a material factor causative of the thrombus which ended the workman's life. The board thereupon entered an order granting the widow's claim for pension. The superior court affirmed the order, and the employer appealed from the court's judgment. In affirming the judgment, this court said:

"The workmen's compensation law was enacted in furtherance of sound public policy for the benefit of those who engage in extrahazardous employments. It applies to all alike, the young and the old, the weak and the strong, the healthy and the diseased. One of the hazards of employment to a workman afflicted with disease is that his work may involve exertions and strains which his weakened constitution may be unable to withstand. An injury which a workman sustains in the course of his employment is compensable under the act if it results from any shock, strain, or exertion which he is then unable to endure in his condition of health, whatever that may be. [Citing practically all of the cases mentioned above.]"

As has already been indicated, it is appellant's position that the rule to be adduced from the foregoing authorities is that an injury resulting from physical exertion, coupled with a previous diseased condition of the workman, is not "traumatic" within the meaning of Rem. Rev. Stat., § 7675, unless the exertion is violent or strenuous, or is performed under unusual conditions; and that ordinary work, or work performed in the manner to which the workman is accustomed, without extra strain or overexercise, even though it be coupled with a preexisting disease, however serious or acute, cannot be held to be the cause of an "injury" within the meaning of the workmen's compensation act.

[2] It is true that, in practically all of the cases hereinbefore cited, there was some strain or effort beyond that ordinarily employed by the particular workman. However, the rule which this court has repeatedly and emphatically stated in those same decisions was not limited to those conditions. What this court has positively declared as its accepted rule, under both the original and the present definition of "injury" is this: An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of theworkman's health.

To say now that some unusual effort or strain is necessary to render death compensable, would not only be in direct conflict with the plain and emphatic language of our holdings, but would also introduce an element of uncertainty and confusion, in that every case would present a problem as to the standard to be used in determining whether or not, in a given instance, the exertion was unusual, and whether or not the workman was expending only the ordinary exertion required in a particular line of employment. The rule above stated has been accepted in this state after much discussion and diversity of opinion. It is now firmly established, and we see no reason for departing from it.

Since the board found that there was a causal relation between the workman's exertion and his death, and since the evidence supports that finding, the case is within the accepted rule.

The judgment is affirmed.

BLAKE, C.J., MAIN, BEALS, JEFFERS, MILLARD, and DRIVER, JJ., concur.