(dissenting).
Subsequent to the filing of the opinion in this matter, which affirmed the'decision of the Industrial Accident Board awarding compensation, the appellant filed a petition for rehearing, and on a re-examination of the issues presented, I have concluded that the order appealed from should be reversed.
The decedent’s death was not caused by an accident coming within any definition either recognized by the common law or as defined in the Workmen’s Compensation Act.
Before a workman or his dependents are entitled to compensation under the Workmen’s Compensation Act, there must be an accident causing the disability or death.
An accident means: “ * * * an unexpected, undesigned, and • unlooked for *15mishap, * * * happening suddenly and connected with the industry in which it occurs, and which can he definitely located as to time when and place where it occurred, causing an injury * * *. * * * ‘injury’ and ‘personal injury,’ * * * shall be construed to include only an injury caused by an accident, * * * which results in violence to the physical structure of the body. * * * ” Sec. 72-201 I.C.
The tipping of the car as outlined in the majority opinion may or may not have been an accident, but whether it was or was not, such tipping did not result in violence to the physical structure of the decedent’s body. There was no testimony from which the Board could conclude that there had been an accident causing injury, or warrant the conclusion that decedent died the result of “an untoward, unforeseen or unexpected event or series of events causing an injury”. The expert testimony does not support such a conclusion.
The burden of proving an. accident was on the claimant. An absence of evidence does not meet the requirement.
■In Wade v. Pacific Coast Elevator Co., 64 Idaho 176, 129 P.2d 894, a much stronger showing was made than is presented' here. This court concluded that the decedent did not come within the provisions of the Workmen’s Compensation Act.
In Sonson v. Arbogast, 60 Idaho 582, 94 P.2d 672, this Court held that: “ * * * in absence of showing that there was some noticeable mishap, fortuitous incident, or sudden or manifest change in working conditions”' there could be no recovery, and in Walters v. City of Weiser, 66 Idaho 615, 164 P.2d 593, held that where an electrician with a weak heart contracted influenza and continued to work and died with rheumatic heart disease complicated by influenza, such condition did not meet the requirement that there must be an accidental injury.
In Hoffman v. Consumers Water Company, 61 Idaho 226, 99 P.2d 919, this court held that typhoid fever contracted while on the job was not an accident.
The Board did not find that the decedent suffered some noticeable mishap or fortuitous incident connected with the employment from which the injury complained of resulted, and the finding of the Board that decedent died the result of an accident is a conclusion supported by no evidence whatsoever. Conclusions of law cannot take the place of findings of fact.
There being an entire absence of evidence to connect the alleged accident with the injury suffered should only result in a reversal of the Board’s conclusion.