Certiorari to review the order of the industrial commission denying compensation to Louise Adler, the Avidow of EdAvard F. Adler, who died while in the employ of the Interstate Power Company. The Fidelity & Casualty Company is the insurer.
On September 27, 1928, the decedent Adler was in the employ of the Interstate Power'Company in its plant at Rochester, Minnesota, as a stoker. He commenced Avork at one o’clock in the afternoon. His first work Avas the pulling out of a charge from one of the upper rеtorts. The evidence is that this one was more than ordinarily a hard charge to handle and that Adler was subjected to the fumes of the сoal and coke, perhaps more so than Avas usual. When hе got his charge out and was about to refill he complained of a pain in his head and across his chest, and he felt sick and vomitеd severely. He sat doAvn on his wheelbarrow and later Avent to the bаsement and lay down on a lounge. A feAv hours later he was taken to his home and put in a chair from Avhich he fell in a few moments and died.
An аutopsy was had. It was a thorough one. Dr. Mills, pathologist in the Mayo Clinic, who had had long experience in performing autopsiés, said that he considered the body that of the healthiest man Avhose body he had ever examined. His opinion was as follows:
“My opinion is that, anything I knoAV of the facts observed by me and those heard from the testimony of others, Edward Adler arrived at his death as a result of probably inhаlation or injection of some poisonous substances, presumably derived in some way or other from the destructive distillation of coal.”
, So far as could be, all other causes than the inhalation or injection of poisonous substances coming from the distillаtion of coal *194 were eliminated. The conclusion of the dоctor was not disputed. No cause other than the one he assigned was suggested. If compensation is denied, the opinion reаched by a competent pathologist, given with a rather definitе degree of certainty, after as thorough an autopsy as сould be performed, and under as favorable conditions as сould be had, must go for naught and the cause of the death held unascertained. This cannot be so. It is true that the. doctor could not testify as to an exact certainty. He could not give the definite gаs or poison or combination which brought the result; and it is true that he аdmitted under cross-examination that in reaching results there might be such а thing as conjecture or speculation. But we have fairly given his viеw. There is no question of credibility. The burden of proof is of course on the plaintiff, and she cannot rest a recovery merely on speculation or conjecture. In the practical аdministration of the compensation act the unassailed oрinion of the doctor, with the uncontradicted circumstances attending supporting it, should be taken as a correct statement оf the cause.
There is raised the question whether, conceding thаt death came from an inhalation or injection of gas or рoison, it was an accident. The statute defines accident as “an unexpected or unforeseen-event, happening suddеnly and violently, with or without human fault, and producing at the time injury to the physical structure of the body.” G. S. 1923 (
An attorney’s fee of $75 is allowed in this court.
Order reversed.