dissenting.
I am unable to agree with the position of the majority, and therefore I submit the following observations as embracing my views herein:
L. E. Justice, the claimant’s deceased, was injured by an accident, arising out of and in the course of the employment, on February 22, 1938, while working at an average weekly wage of $22.30. The nature of the injuries was described as a “fracture of the left ilium extending down *8to the acetabulum.” The accident was caused by a fall of slate in the mine of the appellee.
The injured man was brought out of the mine, and carried down an abrupt incline to the office of the physician for the company. It required forty-five minutes to travel the distance to the doctor’s office. The weather was cold and it was raining. A blanket was used to cover the injured man in traveling the distance. He was examined by the physician, who directed that he be taken to the Mattie Williams Hospital at Richlands, Virginia, a distance of 52 miles. The trip was made in a closed automobile.
The fracture was reduced on February 24, 1938. In the reduction ether was employed, pneumonia developed on February 27, 1938, and the patient died on March 4, 1938, at 12:30 a. m.
We quote from the opinion of the Hearing Commissioner Nickels, which was adopted by the full Commission:
“The claim is based upon the theory that the administration of ether gave deceased pneumonia. The defendant alleges that death resulted from natural causes.
“The record shows no symptoms of a cold or elevation in temperature, due to shock or exposure, while deceased was being transported from site of accident to the hospital. The hospital record shows a normal temperature on the day of the operation for reduction of the fracture. The first signs of pneumonia developed on February 27, 1938, a period of 3 days after administration of the ether. The medical evidence shows that the type of pneumonia occasionally following the administration of ether usually develops thereafter in from 24 to 36 hours.
“The record shows that this type of pneumonia develops from mucus congesting in the lungs. It is not of the germ type. On the other hand, the record shows cause of death to have been lobar pneumonia of the pneumococcus type, A-B, which is of a contagious character and very dangerous to human life. Therefore, the record shows this type of pneumonia to be direct cause of death.
*9“From the record it is apparent that the administration of ether did not cause the pneumonia. The only inference of fact compatible with the record is that the germ was already present and that pneumonia developed coincidentally during the period of hospitalization for the fracture. It is equally probable that the pneumonia would have developed independently of the accident. Good reasoning would indicate that a weakened body from the accident would, no doubt, be a contributing factor to death from pneumonia.
“The disease condition having been the proximate cause of death, and the accident not having been a producing cause thereof, the case is dismissed from the docket, each party paying its respective costs,”
We think that the above is a fair and accurate statement of the case as shown by the record.
Five physicans testified and not one of them was positive as to the cause of the disease, pneumonia, which resulted in the death of the employee. The only medical testimony on that point is found in the examination of the company’s physician, Dr. U. O. Sanders, who said that pneumonia would not develop from exposure alone in the case of a person who was otherwise healthy.
The claimant urges that the testimony creates a doubt as to the principal issue and that where such is the case it should be resolved in her favor. If this court should approve and adopt that contention in this case, it would ignore the paramount requisite in every case, namely, that the plaintiff must make out his case, i. e., he must prove it by a preponderance of the evidence. Here the evidence leaves us in a maze of surmise and conjecture as to what did cause the pneumonia, of which the employee died. No casual connection between the accident and the disease is shown and, that being true, an inhibition of the statute applies, which is found in Virginia Code, section 1887 (2), subsection (d) and reads:
“ ‘Injury’ and ‘personal injury’ shall mean only injury by accident arising out of and in the course of the employ*10ment and shall not include disease in any form, except where it results naturally and unavoidably from the accident.”
It is suggested that the case is controlled by the case of Bristol Builders Supply Co. v. McReynolds, 157 Va. 468,162 S. E. 8, 9. This court, in that case, through Campbell, Chief Justice, said: “The sole question in this case is whether or not the claimant’s deceased died of septic pneumonia. If death did result from septic pneumonia, claimant is entitled to compensation; otherwise she is not.”
As to this issue the attending physicians were in doubt but the Commission called three disinterested physicians, to whom the question was propounded in hypothetical form and their answer was: “We feel from the question as stated that it was septic pneumonia, probably due to the injury.” Thus their testimony was positive in its response to the question which was determinative of the issue as declared by the court.
There is no positive testimony here as to the decisive issue; this being so, the award of the Commission and its finding of facts should, in my judgment, be determinative of the case.
In the case of Old Dominion Land Co. v. Messick, 149 Va. 330, 141 S. E. 132, we held that the disease must be due to the injury to warrant an award in favor of the claimant. That is far from having been shown in this case.