Dissenting Opinion.
Dausman, J.— I am compelled to dissent from the answer by the majority of the members of this court to the question certified herein, but I shall refrain from giving my reasons therefor. There is another *490phase of the matter which to my mind is of vastly greater importance. I am of the opinion that this court ought not to answer the question at all for the reasons following:
In recent years mankind has made marvelous advancement in that realm of knowledge commonly known as the physical sciences. Especially in chemistry and physics we have moved forward by leaps and bounds. Mechanical ingenuity has been turned loose in a vast field of unlimited possibilities, and an ever-increasing number of inventions has come with a regularity akin to an arithmetical progression. The time in which we live is distinctively an age of machinery. As a natural and inevitable result industrial life has been revolutionized. Mechanics have been taken from their little isolated shops where each man worked alone at his bench with simple hand tools, and have been congregated by the hundreds and by the thousands in vast establishments where they work at power-driven machines. Powerful machinery is inherently dangerous. The production of electricity and chemicals and their extended use in industrial affairs is a prolific source of danger. The congregating of working people is in itself an element of danger. The factory, the mine, the railroad, and all places where men assemble to work, are scenes of inevitable accidents. Motor-driven vehicles have made unsafe even our streets and country roads. These things, and the rapidity of changing conditions which is a necessary concomitant, make every industrial venture hazardous for both capital and labor. The proprietors risk their capital and the workmen risk life and limb. Service in industrial life has become quite as hazardous as service in war. The workman is the soldier of organized industry. *491Stertz v. Industrial Ins. Com. (1916), 91 Wash. 588, 158 Pac. 256. “A machine as well as a bullet may produce a wound, and the disabling effect may be the same.” Mountain Timber Co. v. Washington (1917), 243 U. S. 219, 37 Sup. Ct. 260, 61 L. Ed. 685, Ann. Cas. 1917D 642.
These considerations have made thoughtful men to stop and wonder if in the end machinery will prove to be a blessing or a curse, and whether our vaunted industrialism will not some day fall of its own weight. Eventually the conviction became general that if a deplorable end is to be avoided the methods of caring for the unfortunate victims of industrial accidents must keep pace with the march of industry itself. The conviction has become general that the men who are brave enough to risk the dangers of modern industrialism in order to earn a livelihood for themselves and their dependents must have protection in keeping with the hazards they face. Some years ago it became apparent that the common-law remedy by an action in tort is pitifully inadequate as a means of adjusting the multifarious claims for compensation growing out of personal injuries occasioned by industrial accidents. That plan came to be regarded as wasteful, unfair, demoralizing and unsatisfactory, by both employer and employe. New York Central R. Co. v. White (1916), 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D 1, Ann. Cas. 1917D 629. Various statutory modifications of the common law, and substitutes therefor, have been tried, and they too have proved inadequate. It is a matter of common knowledge that employers, of their own initiative, sought refuge by procuring insurance against their liability for damages arising out of personal injury cases. Manifestly this plan could not *492benefit the employe. Its only effect was to shift the uncertainty from the employer to the insurance carrier, leaving the employe to struggle against the latter'in the same old way. The situation became intolerable for all concerned, including the public. Finally employers and employes joined hands in an effort to get relief by legislation. See §1, Oregon Workmen’s Compensation Act.
In recognition of the imperative demand for relief the legislative bodies of nearly all civilized states have enacted workmen’s compensation laws. The underlying principle of all these laws is the same. The plan is a legislative venture, • pure and simple. It differs radically from anything known to the common law. It eliminates the idea of fault on the part of both employer and employe, excepting only where it amounts to wilful misconduct on the part of the employe. New York Central R. Co. v. White, supra. It has been said that this plan provides compensation in the nature of a pension. But the better view is that it is a species of workmen’s insurance — the statute itself constituting the policy. Its enactment was prompted largely by the desire to promote the public welfare by preventing disabled workmen and their dependents from becoming the victims of poverty and charges upon public charity; and the authority for its enactment is referable to the police power of the state. A consideration' of the causes which lead to the conception and realization of the plan leads to the conclusion that its purpose is to provide compensation for every industrial injury by accident, excepting only where the injury is due to the workman’s wilful misconduct. Cleland v. Smith Bros. (Wis.), 7 N. C. C. A. 424. The plan is remarkable for its simplicity and was adopted in *493the- hope that the administration of it would not be hampered by legalistic theory. Indeed one of the main objects of the plan is to get away from the complexities and perplexities of litigation; and with this object in view the legislature of Indiana wisely committed the execution of our workmen’s compensation act to an administrative board which belongs to the executive department of the state! government.
It is the duty of the courts to interpret the act when properly called upon t.o dp so. In numerous instances the courts have been asked to construe the words “arising out of and in the course of the employment,” as used in the following context: “Sec. 2. From and after the taking effect of this act, every employer and every employe, except as herein státed, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby.” Acts 1915 p.. 392. And the courts have repeatedly said that these words should be liberally construed in order to give effect to the humane and public purposes of the act; that they are broad enough to include every accidental injury, which might reasonably have been contemplated by the parties at the time of entering into the contract of service; that they include every accidental injury which bears a causal relation to the service, and every accidental injury which is incidental to the service. What more can be said with any .degree of safety? Every attempt to formulate a definition of said words in rigid and unyielding language which would include every injury for which compensation ought to. be allowed and exclude every *494injury for which compensation ought to be dis-. allowed, is fraught with the imminent danger of either narrowing or broadening the legislative intent.
Whether a particular injury “arises out.of and in the course of the employment” is a question of fact. Call it an inference, or a conclusion, or an ultimate fact, or a conclusion of fact — call it what you will— it is in the realm of facts and not in the realm of law. It is just because it is a matter of fact that we find such seeming incongruity in the decisions. In this respect the reported cases appear to be a jungle of contradictions. We can ho more follow them than one can follow all the roads. In every contest it is an easy matter to arrange a long list of cases on either side of the controversy. The wonderful complexity of modern industrialism, the great army of workers, the diversified conditions under which they work, and the capricious nature of accidents, must inevitably cause accidental personal injuries under an infinite variety of circumstances. It is not likely often to happen that any two contested cases will be exactly alike in all the details. Hence, as Lord Lore-burn said: “We have to decide each case on the facts. Argument by analogy is valueless. * * * It is another of the very numerous cases in which the question is whether the accident arose out of and in the course of the workman’s employment — words, it is admitted, of inexhaustible variety of application according to the nature of the employment and the character of the facts proved. The facts in each case are materially different, and if we are on each argument to discuss and differentiate them one from another, judgments in Courts of Law would be interminable, and would lead rather to confusion than to enlightenment.” Kitchenham v. S. S. *495“Johannesburg” (1911), 4 B. W. C. C. 311. In another case the same jurist said: “Cases are really valuable in so far as they contain principles of law. They are also of use, of course, to show the way in which judges regard facts. But in that sense they are only useful as illustrations. Judges are not laying down the law when they are explaining their reasons for coming to a conclusion of fact, and it seems to me you have to decide each case upon its own facts.” In the same case Lord Ashbourne said: “I think it is impossible to measure the facts of one case by the facts of other cases. It is sufficient for us in each case that arises to apply our minds to the facts before us and to the case before us, * * * And Lord Shaw, assenting, said: “My Lords, may I respectfully tender my assent to the proposition which your Lordships have laid down that it is in all cases of precedents, or alleged precedents, most dangerous to treat analogies of fact as conclusive. New cases arise in ordinary life, and few cases arise in the Law Courts, in which such analogies are complete; and unless they be complete they, fail, and the attempt to evoke a principle out of them also fails.” S. S. “Swansea Vale” v. Rice (1911), 4 B. W. C. C. 298.
Some person or group of persons must determine whether a particular injury arose out of and in the course of the employment. The legislature of Indiana has imposed this duty upon the Industrial Board. It is the province ' of the Industrial Board to hear the evidence, draw the inferences (or conclusions) therefrom, and make a finding of the ultimate facts. The parties are entitled to have their controversy decided for them in the first instance by the Industrial Board. It is their right* to have' the *496experience, skill, discernment and judgment of the Industrial Board and, if desired, of each member thereof, brought to bear upon their dispute. This duty of the Industrial Board cannot be shifted or evaded.
After the Industrial Board has discharged its duty, then, under the legislative permission, either party may appeal to this court.- On appeal this court is authorized to determine whether the evidence sustains the finding; but our attitude toward the-matter is quite different from that of original triers of the facts. In accordance with the long-established rule of appellate procedure we recognize that it is the exclusive province of the Industrial Board to weigh conflicting evidence, if there be conflicting evidence; and that in all cases it is the duty of the board, in the first instance, to draw the inferences (or conclusions) 'from the evidence, whether conflicting or not. "We carefully refrain from invading that province of the Industrial Board and confine our inquiry to the simple question: Is there any evidence tending fairly to sustain the finding? Any other rule would be likely to work gross injustice. Bor this court to determine as an original 'matter, whether an accidental injury arose out of arid in the course of the employment would constitute a flagrant invasion of the province of the Industrial Board, and would amount to an usurpation of its functions and duties.
Under a fair interpretation of §61 of the act, as amended, I am of the opinion "that the submission of the above question is unauthorized. It is my conviction that the answer to said question cannot operate as “a decision and determination” of the controversy and is jioh binding on the Industrial Board.
I have not overlooked the fact that the question is *497not put in the full language of the statute. If the mere form of the question carries with it a peculiar significance — if it means that the Industrial Board is satisfied that the injury arose in the course of the employment, hut is in doubt as to whether -it arose .out of the employment — then it may be regarded as a request for an interpretation of said §2 with special reference to this particular trouble. On that view of the matter we are bound to respond to the request by construing the troublesome words “arising out of and in the course of the employment.”
The English Workmen’s Compensation Act was enacted by Parliament on December 21, 1906, and the compensation laws of the United States and of the various states of the Union follow the general outlines of the English law. Naturally the courts of this country have been influenced more or less by the constructions put upon the law by the English courts. Now, it so happened that in June, 1908, Buckley L. J., sitting as a member of the Court of Appeal, took occasion to expound the words “accident arising out of and in the course of the employment.” It seems to me that his explanation tends only to cloud that which is clear, to make mysterious that which is plain, and to make complex that which is simple. Here is his exposition: “The words ‘out of and in the course of the employment’ are used conjunctively, not disjunctively; and upon ordinary principles of construction are not to be read as meaning ‘out of,’ that is to say, ‘in the course of.’ The former words must mean something, different from the latter words. The workman must satisfy both the one and the other. The words ‘out of,’ point, I think, to the origin or cause of the accident; the words ‘in the *498course of’ to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words ‘out of’ involves, I think, the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment.” Fitzgerald v. Clarice & Son (1908), 1 B. W. C. C. 197.
But what are the qualities of an accident? Is not the origin of a thing included in the time, place and circumstances of its appearance? Is it possible that an accident may arise out of the employment and not in the course of the employment? Is it possible that an accident may arise in the course of the employment and not arise out of the employment? "What does he mean by the cause of the accident? Is it the duty of those intrusted with the administration of the compensation laws to make an exhaustive investigation in every case of accidental injury for the purpose of determining the origin or cause of the accident? Must the workman be denied compensation in every case where the origin and cause of the accident are found to be in a realm outside his employment? One of the inherent weaknesses of his explanation lies in the fact that it is not the accident, but the injury, that must arise out of and in the course of the employment. The words should be . read, ‘ ‘ accidental personal injury arising out of and in the course of the employment”; or “personal injury (by accident) arising out of and in the course *499of the employment.” Madden’s Case (1916), 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D 1000.
Do the words “ont of and in the course of” necessitate two distinct inquiries? The words “out of” do not appear in the federal act, nor do they appear in the acts of the following states: Maine, Pennsylvania, Texas. The legislative bodies of these political units, as well as of certain foreign countries other than England, have seen fit to use only the words “in the course of. ’ ’ The words of the Louisiana act are, “out of and incidental to.” The words in the title to the English act are, “Compensation to workmen for injuries suffered in the course of their employment.’ ’ In the title to the Iowa act we find only the words “in line of duty.” In the title to the Indiana act the words are, “To establish rates of compensation for personal injuries or death sustained by employes in the course of employment. ’ ’ The words “out of” do not appear in the titles of the acts of several of the states. While the language used in the titles of the various acts is not controlling, yet it is worthy of note as an indication of the legislative intent. Now, it is generally conceded that these acts have a common intent. In enacting them the various legislative bodies were all aiming at the same mark. With respect to the point now under consideration, none of them is either weaker or stronger than the others. The varying expressions above referred to are only different ways of saying that compensation shall be allowable for every accidental personal injury or death due to the employment.
The Indiana Compensation Law, supra, was enacted in the year 1915; and there is a general rule of statutory construction to the effect that where a statute is modeled after an act of a foreign country *500it will be presumed to have been enacted with reference to tbe construction put upon it by the courts of the country from which it is taken. This rule is more or less binding, according to circumstances. It does, however, require that this court should heed the interpretation of the act by the English courts prior to its enactment here. But from a full and complete recognition of the rule it does not follow that we are under any obligation to approve the particular process of reasoning by which a judge arrived at his conclusion. I indorse the conclusion reached by Buckley, L. J., in his assenting remarks supra, viz., that the injury for which compensation is allowable must be due to the employment — must result from a risk incidental to the employment. But the particular bit of reasoning in which he indulged, while it has not been, approved generally by the courts, unfortunately has misled some of them and has burdened the administrative board charged with the execution of the compensation laws. It should be rejected once for all.
Note. — Reported in 118 N. B. 551. Workmen’s compensation: Injuries arising out of and in the course of employment within meaning of act, L. R'. A. 1916A 40, 232, L. R. A. 1917D 114, Ann. Oas. 19130 4, 1916B 1293, 1918B 768.