(dissenting): In my opinion the judgment of the trial court is not sustained by substantial competent evidence, as is required under the law of this state. (See, e. g., Fair v. Golden Rule Refining Co., 134 Kan. 623, syl. ¶ 2, 7 P. 2d 70.)
*588In approaching the question whether there is substantial evidence to support the award and judgment of the trial court, it is well to bear in mind certain fundamental principles of law. In Brenn v. City of St. John, 149 Kan. 416, 422, 87 P. 2d 546, it was said that in a workman’s compensation case the burden is on the claimant, and he’must prove the various elements that together show his right to an award. To the same effect see Phillips v. Okey, 111 Kan. 732, 207 Pac. 1106. See, also, Gamble v. Board of Public Utilities of Kansas City, 137 Kan. 227, 19 P. 2d 729, and Bush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542. In Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862, it was claimed by the workman that his diabetic condition was caused or accelerated by injury received by him during the course of his employment. Without reviewing the evidence it may be said his doctor testified that under the facts, the workman’s condition might possibly be the result of injury. This court said, in part:
“Claimant relies on the fact that, as he testified, he was in good condition before the accident and began to' be sick soon after it. It will be seen that the only medical testimony that was furnished by claimant was that it was possible that an aaccident such as that described by claimant might have caused his condition.” (1. c. 317.) (Emphasis supplied.)
The court’s opinion concluded:
“Taking all the evidence in this case in its most favorable light for claimant and giving claimant the benefit of all inferences to be drawn from the proven and admitted facts, the conclusion to be drawn rises but little higher than a surmise or conjecture.” (I. c. 318.)
See, also, Hall v. Armour & Co., 153 Kan. 656, 659, 113 P. 2d 145; Carney v. Hellar, 155 Kan. 674, 678, 127 P. 2d 496; McMillan v. Kansas Power & Light Co., 157 Kan. 385, 139 P. 2d 854; Hall v. Kornfeld-Harper Well Servicing Co., 159 Kan. 70, 73, 151 P. 2d 688; and Copenhaver v. Sykes, 160 Kan. 238, 242, 160 P. 2d 235; where the rule above stated is recognized as sound.
In this case the essential question is not whether the workman’s death might possibly be the result of injuries sustained by him in the course of his employment, but whether it probably resulted from those injuries.
In my view of the matter it is not necessary to review the evidence for the trial court’s judgment discloses that it reached its award and judgment through conjecture and surmise, and from a misconception of the law applicable to the case.
*589The trial court found that the medical testimony was supplied by three physicians, each of whom disqualified himself as an expert in the particular field of inquiry. After making reference to X-ray plates the court stated an aneurysm was defined as being a gradual deterioration of the walls of blood vessels, so that a Weak spot develops; that the rupture of an aorta could be caused by a strain; that development of an aneurysm is ordinarily slow, but if a man had one it would be aggravated by severe or extreme exertion or strain or even a mental strain, very suddenly; that after the workman’s death it was apparent that he must have had a beginning aneurysm on February 5, 1946 (date of claimed accident), and that an exertion could have aggravated his condition so that it might culminate in death. It may here be noted the testimony showed that a scare, a bad cold or a cough, using the stool, stepping off a curb or any strain, mental or¡ physical, might aggravate the condition. It may also be noted that no one testified that the workman’s death was the probable result of any aggravation of his condition caused by the alleged accident. The court, in its award, stated further:
“Under the liberal rules which have heretofore been announced as to the evidence necessary to establish the occurrence of such an accident, it is held by the court that there is sufficient showing in this case to establish the fact that'McMillin sustained such an accident [and as to the foregoing, I am not-particularly in disagreement] and that the accident on February 5th aggravated his condition so that it was the cause of the death even though the death did not occur until February 28th, 1946. The decedent’s employment was under the Workman’s Compensation Act and the injury is shown to have arisen out of and during the course of the employment. No other reasonable alternative is offered to account for the rapid development of the aneurysm, except that it was earned by decedent’s exertion on the morning of February 6th.” (Emphasis supplied.)
Two things are evident from the above: That the trial court was not able to find any evidence that the decedent’s death was the probable result of any injury sustained by him, and that it placed the burden of proof upon the employer to show that the decedent’s death was the result of something other than his accidental injuries. Neither meets the requirements of law. The result is that the award rests only upon conjecture and surmise and should not be allowed to stand.
I am authorized to say that Mr. Justice Wedell and Mr. Justice Burch concur in the above views.