I concur in reversal. The case of Woodburn v. OliverMachinery Co., 257 Mich. 109, cited by Mr. Justice McALLISTER is not controlling. In that case there were no eyewitnesses to the accident, but the facts therein raised a presumption that the injury to deceased arose out of and in the course of his employment. In the case at bar it is undisputed that on August 12, 1936, the deceased left home a normal healthy man; that he suffered an accidental injury to his toe; and that the cause of death was from a ruptured appendix — peritonitis.
The testimony of Albert McGillis, a witness produced by the defendant company, is to the effect that the only injury suffered by deceased was the toe injury. Such evidence dispels the presumption relied upon by plaintiff. It is elementary that the burden of establishing a claim for compensation rests upon those seeking the award. Plaintiff has not met the burden of proof and the award should be vacated, with costs to defendant. *Page 460