The burden of proof is upon the party attacking the decision of the department, which decision, under the statute (Rem. Rev. Stat., § 7697 [P.C. § 3488]), shall be prima facie correct. A careful examination of all of the evidence in *Page 183 this record convinces me that the appellant failed to sustain the burden of proof imposed upon her by the statute. No physician testified that, in his professional opinion, the death of appellant's husband resulted from the alleged injury to his side. There is no evidence, nor is there any evidence from which it may be legitimately inferred, that the death of appellant's husband was due to the injury.
Appellant's husband was struck in the left lower side by a board April 17, 1937. Appellant was not then at home. She did not return to her home until April 20, 1937. She stated that her husband then told her about the accident and showed her his side. He continued to work until May 18, 1937, one day more than a month after the injury. When he came home from work, according to appellant, the evening of May 18, 1937, "he seemed all right." That night, he became ill and his temperature mounted. The next day, he complained that his side hurt him when he coughed or when he tried to lie on his left side. He had not improved the morning of May 19, 1937, when a physician was called, who informed her that her husband was suffering from pneumonia and advised that he be taken to a hospital, which was done. Four days thereafter, May 24, 1937, McLaren died.
No report was ever made to his employer of his injury, nor did McLaren give to his attending physician the history of any injury. Dr. Nickson, who was retained by the claimant, stated to an investigator of the department that he could not give a written statement of his opinion as to the cause of death. When the investigator questioned him, however, the physician stated that, at the post mortem, he found no indications that lobar pneumonia was brought about by trauma, and that he so informed claimant's counsel. The physician further stated that, in view of the multiple *Page 184 fibrinous adhesions between the pleura and over the entire surface of both lungs, he felt that this was not the first time McLaren had suffered from pneumonia.
The attending physician would not testify that the death from lobar pneumonia was a result of the injury. The testimony of the physicians goes no farther than that, based upon the assertion of the claimant that her husband had been spitting blood subsequent to the injury and on the assumption that the spitting of blood was the result of the alleged injury, it was possible that the death of McLaren resulted from the injury. It is presumed that, if it be true that deceased was spitting blood after the injury,possibly, presuming that the spitting of blood was the result of the alleged injury, the death of McLaren resulted from the injury. Such a chain of presumptions does not satisfy the statute.
By the showing of a mere possibility that the injury caused or contributed to the death of McLaren, the appellant did not sustain the burden of proof imposed upon her by the statute. Rem. Rev. Stat., § 7697.
If the deceased was injured, he ceased working only a few minutes and then continued for more than twenty days at his employment without making any claim that he had been injured. If the injury had been such as claimed, surely the deceased would have made a report to his employer of the injury. The claimant did not show by a preponderance of the evidence that the injury was a proximate or a contributing cause of the death of her husband.
The following language in the dissenting opinion, which later became the prevailing opinion, in Ferguson v. Department ofLabor Industries, 197 Wash. 524, 532, 85 P.2d 1072,90 P.2d 280, with respect to the burden of proof imposed by the statute (Rem. Rev. Stat., § 7697) upon the party attacking the decision of the department, which decision, under the *Page 185 statute, shall be prima facie correct, is as apt in the case at bar as in the opinion cited:
"The record in this case, as I view it, demonstrates the wisdom and need for just such a statutory rule and illustrates the propriety of sustaining the decision of the department and the judgment of the trial court."
We have no right to indulge in conjecture. To hold that the judgment should be reversed, would be to enter the realm of speculation. Not only has the claimant failed to establish by a preponderance of the evidence that her husband came to his death as a result of an accident April 17, 1937, but the evidence before us is clear that there was no such disturbance of the pleura as would be likely to cause pneumonia as the result of an injury.
To cite and quote from the numerous opinions of this court sustaining the trial court, would unnecessarily lengthen this dissenting opinion. Anderson v. Industrial Ins. Commission,116 Wash. 421, 199 P. 747, is distinguishable on the facts from the case at bar.
The judgment should be affirmed. *Page 186