Page:North Dakota Law Review Vol. 1 No. 1 (1924).pdf/2



Fannie Pace, vs. North Dakota Workmen's Compensation Bureau,

1. In an action against the Workmen's Compensation Bureau to recover on account of an injury, resulting in death, alleged to have been received by the decedent in the course of his employment, the burden is on the claimant to prove, by preponderance of evidence, that the injury was received in the course of the employment, and an award should not be made upon mere surmise or conjecture.

2. It is the intent of the Workmen's Compensation Law that an employee, injured in the course of his employment, shall have relief in all cases where he would have had a right of action at common law, and, in addition thereto, to extend his right to recover in other cases, regardless of questions of negligence, contributory negligence, or assumption of risk.

3. A physical impact is not a necessary prerequisite to an "injury," within the compensation act.

4. In a case of prostration of an employee in the course of his employment, the claimant is entitled to compensation if the excessive or unusual heat was the proximate cause of the collapse and the subsequent bursting of a blood vessel, which resulted in death.

5. Whether, under the 4th subdivision of section 7660, C. L. 1913, a party is entitled to a new trial on the ground of newly discovered evidence, rests largely in the sound judicial discretion of the trial court and the appellate court will not interfere, unless it appears that such discretion has been abused.

6. NothwithstandingNotwithstanding [sic] the fact that existing disease or infirmity may have predisposed the employee to apoplexy, his dependents may be entitled to compensation if the rupture of the blood vessel, with resulting apoplexy, took place earlier because of the excessive artificial heat, under which the employee labored. Acceleration of a pre-existing disease to a fatal conclusion is, in such circumstances, an injury within the compensation law.

7. Certain findings of fact challenged by appellant examined, and, for reasons stated in the opinion, held to have substantial support in the evidence.

Appeal from the District Court of Ward County, North Dakota, Hon. George H. Moellring, J.

AFFIRMED. Opinion of the Court by Johnson, J.

Phillip Elliot and Scott Cameron, Bismarck, N. Dak., and O. B. Herigstad, Minot, N. Dak., Attorneys for Appellant.

McGee & Goss, Minot, N. Dak., Attorneys for Respondent.