— That the claimant suffered an accidental personal injury arising out of and in the course of his employment is not disputed. The only controversy is as to whether the pneumonia which followed was the result of the injury.
If the record discloses evidence fairly tending to show that the penumonia resulted from the accidental personal injury received by claimant in the course of his employment by Stockton Brothers, the judgment of the Circuit Court must be affirmed. It is a declaration of our fundamental law that—
“No fact tried by a jury shall be otherwise reexamined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” Art. VII, § 3-c, Or. Const.
*398 This is a mandate coming from the people. It is expressed in clear and concise language, and requires no elucidation.
At the time of the accident, William L. Robertson, the claimant, had been an employee of Stockton Brothers, builders and contractors, of Gresham, Multnomah County, Oregon, for a number of years. On that date both employer and employee were subject to the provisions of the Workmen’s Compensation Act and were contributors to its fund.
It is conceded by the Commission’s brief that Robertson, while in the course of his employment, sustained an accidental personal injury to his right leg between the ankle and knee, and that he was entitled to compensation for a brief period of time.
At the time of the accident, Robertson was a strong man, in apparent robust health, weighing about 220 pounds. At the time of the hearing of this case in the court below, his weight was 140 pounds. On the occasion of the injury, he was wheeling a load of cement in a wheelbarrow, and, while pushing the heavily loaded wheelbarrow, it struck some object and suddenly stopped. Robertson testified:
“The wheelbarrow came up with a chug and stopped, and as I went to take a step I whacked it (his leg) right into the (iron) crosspiece on the wheelbarrow. ’ ’
He further testified:
“It was a new wheelbarrow. It had not been used to wheeling and the handle was a little bit shorter and the bar was a little bit lower down on the legs, and I hit the crossbar there and knocked the skin off of my leg and it made me sick at my stomach. * * I had to stop for a few moments and sit down. I was sick. Then I went ahead and finished up that day. I felt bum all that day * * *399 and then the next day. * * That night I went home and I sat down to eat snpper, and I couldn’t eat no supper. I was so sick. And I went to bed and I. had a chill, and my leg was — right here there was a big place blue and watery places came up on it, and the next morning it wasn’t no better. * *
“Q. What doctor did you get?
“A. Dr. Hughs.
“Q. What did he do for you, so far as you know?
“A. Why, he had my wife to put on hot applications onto my leg and keep them on continually. * * He has attended to me ever since this up to the time I went to the hospital. * * I was in the hospital eight weeks.”
Witness thus described the condition of his leg after the injury:
“It was tight along the bone, along here, and hard like as near as I can tell you, outside of the blisters and the blue. * * I was limping all the rest of the time until I went to bed until afterwards. It still pains.
“Q. What is your condition at this time, if you know?
“A. It ain’t very good. When I was at the hospital I had an operation and they tapped me on the side and drew off a lot of pus out of my side and my side is still running * * .
“Q. What had been your condition as to health previous to the 25th of July, 1923, when you were injured?
“A. I was never sick a day in my life.”
Dr. H. H. Hughs, claimant’s attending physician, testified that he was called to see Mr. Eobertson at his home; that—
“He was in bed. Mr. Eobertson had, on his right leg, over his right shin bone, a lesion- — an infected abrasion, I call it — showing an inflammation about three or four inches above and below this lesion, and *400 considerable pain and a fever. I put on wet boric acid pack and ordered him to stay in bed until he was better. * #
“ Q. Was there any condition that developed after that infection there in the leg?
“A. There was pneumonia and a pleurisy development afterwards. ’ ’
He then testified as an expert, whose qualifications the state admitted, that in his opinion pleurisy and pneumonia resulted because of the lowered resisting power of the patient. This testimony was not controverted.
The law under consideration relates to accidental personal injuries to employees arising out of industrial occupations. The Workmen’s Compensation Law is not a scheme of health insurance, nor was it devised to insure against occupational or general diseases:
Iwanicki
v.
State Industrial Acc. Com.,
In the case of Iwanicki v. State Industrial Acc. Com., supra, this court, speaking through Mr. Chief Justice Burnett, said, at page 664:
“No one disputes that if an accident happens within the true meaning of the term, which brings *401 oil a subsequent disease, the ailment may be counted as part of the injury, but the initiative must be found in the suddenness and unexpectedness of what is termed ‘accident.’ ”
The boohs contain many illustrations of accidental personal injuries resulting in pleurisy and pneumonia.
In the case of
Anderson
v.
Industrial Insurance Commission of Washington,
“There is but little conflict in the evidence. The medical witnesses testify that the ax wound of itself would not cause pneumonia, yet all agree that the wound and the resultant weakened condition of Mr. Anderson rendered him much more susceptible to the disease than he otherwise would have been, had he maintained his ordinary robust health. All of them testify, moreover, that it was not beyond probability that he acquired pneumonia from his *402 exposure to the weather because of his weakened condition, and some of them testify that it was highly probable that he did do so.
“There is, of course, no question of contributory negligence or fault involved. # * Nor is it necessary that the ax wound should have been of itself the cause of the death. It is sufficient if it was the proximate cause — the cause which directly set in motion the train of events which brought about the death. ,
“In our opinion the evidence justifies this conclusion, and the judgment of the superior court will stand affirmed.”
See, also, in this connection,
Breslauer Company
v.
Industrial Com.,
The following illustrative cases are found in 1 Workmen’s Compensation Law, Schneider, at Section 232:
In the case of Brown v. Watson, 7 B. W. C. C. 259, a miner, perspiring as a result of his work, was compelled, because of a breakdown of the machinery, to stand in a shaft exposed to a draft of cold air, from which he contracted pneumonia, causing death. In that case it was held that the man’s death resulted from an injury by accident.
In the case of Majeau v. Sierra Nevada Wood & Lumber Co., 2 Cal. I. A. C. D. 443, a workman engaged as a lumberman, who was confined to the hospital because of a fractured leg, developed pneu *403 monia and died, death being hastened by his poor physical condition caused by his confinement and inaction, Held: that the pneumonic md o?~, sequent death was due to the accidental injn
Again, the author cites the case of
Bergstrom
v.
Industrial Com.,
From the text of that Section 232, we quote: the-following excerpt from pages 439, 440: y
“Lowered vitality following injury to the- chest cavity or-to other parts of the body terminated in death from pneumonia in five cases, the awards of which the Appellate Division affirmed unanimously and without opinion, to-wit: a laborer who vlra^ed his side by heavy lifting and walked home through cold and snow; an aged workman who slipped* fell and hurt his hand and arm, infection resulting; a' shoe treer,' whose exertion and bending over his work caused a hernia; a laborer who ¿üt ’little fingen while washing bottles, infectiony resulting * ai|d a coal-hoist engineer who sprained fqg ankle 111 a complete somersault over a stair rail'mg wlfiF descending to get his pay envelope.” ■ s
In the case before us. ---7aF +ne pneumonia caused by the accidental injury jmeeived by Robertson in the course of his employr-unt by Stockton Brothers? Had we been the trier of faci.y it is possible that we might have decided this issue in favor of the Commission. However,1, the jury found in favor of the claimant. It is not our province to weigh the evidence. But it is our duty to determine whether this finding is supported by some competent evidence.
*404 “It may be ‘slender.’ It must be evidence, however, and not speculation, surmise, or conjecture. Von Ette’s Case ,223 Mass. 60 (111 N. E. 696 , L. R. A. 1916D, 641); Sponatski’s Case,220 Mass. 526 (108 N. E. 466, L. R. A. 1916A, 333).” Mailman’s Case,118 Me. 172 , 177 (106 Atl. 606 , 608).
Fronu an inspection of the record before us, we find .some evidence-, that tends to trace the injury and fits resultant illness to a definite time, place and (cause:
Matthiessen
v.
Industrial Board,
In reviewing the record, every legitimate inference which can arise from the evidence adduced by elaiawfi mu, t be drawn in his favor. Mindful of this "*jr<.ciph we have no right, in view of the record and be imperative language of our organic law hereinbefore qu ed, to set aside the judgment from which the apr-.-al is taken.
There is another reason why this cause must be affirmed: T[Tp0n a^peal the Commission is restricted to the theory tpken by it in making its defense in the couTt below "
Wallace
v.
American Life Ins. Co.
(Or.),
It is a rule of practice in
this
state that a motion for nonsuit must specify the grounds therefor, and unless it does so an appellate court will not
*405
review the action of the trial court in denying the motion:
Ferguson
v.
Ingle,
This ease is affirmed. Affirmed.