present claimant has no ground for predicating her claim upon an injury the right to claim compensation for which had been forever barred long before the alleged second injury.

The contract of insurance was at an end when the injured man made no claim within the year limited by the statute. For any injury subsequent to that time a new contract arose by operation of law, and compensation for such second injury depended upon giving the notices provided by section 18 of the Workmen's Compensation Law (as amended by Laws of 1918, chap. 634), or upon facts and circumstances connected with such second injury as would justify a conclusion that the insurance carrier (in this case the employer) was not prejudiced because of a failure to give such notice. No medical attention is shown to have been furnished in connection with the

alleged second accident. Indeed it is most uncertain whether any such accident ever occurred under circumstances which in any manner involved the employer, and no attempt is made to show that the employer had any notice whatever of this alleged second accident. The only notice, constructive, inductive or otherwise, is in connection with the accident of April 14, 1915, and as to this the claimant's intestate permitted it to pass without notice, not only for one year but for nearly four years. By what process of reasoning it may be held that the employer was not prejudiced by a failure to give notice of either of these alleged accidents, if it is to be charged with liability for them, is more than we are able to comprehend. If the injury of 1915 was of a character that was likely to result in death from a trifling fall at any time, it was fair that the employer should have had some notice of the fact. It might not have been willing to continue the employment with such an impending charge against its industry, and certainly if the injury was such as to lay the foundation for death under the circumstances alleged to exist, it was clearly of importance that the second accident should have been called to the attention of the employer in the manner pointed out by the statute.

We do not think the award is justified under the letter or the spirit of the act, and it should be reversed.

All concur, COCHRANE and H. T. KELLOGG, JJ., in the result on the ground that the findings as to the injuries and cause of death are not supported by the evidence, except JOHN M. KELLOGG, P. J., who dissents, with a memorandum.

JOHN M. KELLOGG, P. J. (dissenting): There was evidence tending to establish that the death was the result of the accident; that the employer had knowledge of the injury and due notice of death, and we are precluded from questioning those findings of fact. By section 18 of the Workmen's Compensation Law compensation cannot be awarded unless notice is given by the injured employee within thirty days after the accident, and death benefits cannot be allowed unless the widow, or party claiming them, gives notice within thirty days after the death. The accidental injury is the basis for compensation. Such injury, and resulting death, are the basis for death benefits. They are separate and different rights, with separate and different remedies. The wife cannot give notice as a basis for death benefits during her husband's lifetime. Neither of them can, by action or inaction, destroy the rights and remedies of the other. I favor an affirmance.

Award reversed and matter remitted to the Commission.

January 27, 1919, a factory laborer wet his feet and legs while putting out a fire upon his employer's plant. He developed a high temperature within a few days. April 4, 1919, he died of pneumonia. His employer took an appeal upon the ground that he had not had notice of the accident. The Attorney-General claimed that the employer had waived notice by making no contention at the Commission's hearing. The court reversed the award and remitted the matter to the Commission upon the ground that the employee had failed to give notice and that the Commission had failed to excuse such failure: Leon v. Gilbert Knitting Co., Case No. 13518; App. Div.-, May 5, 1920.

The question of notice figured in the case of a pantry maid who claimed to have hurt her arm in lifting a pan of dishes; the Appellate Division reversed an award to her and remitted her case to the Commission for failure of proof that her disability had arisen from an accident: Mooney v. Delmonico's, Case No. 303088, July 14, 1919; 191 App. Div. 931, Mar. 3, 1920.

Cases of accident subsequent to May 13, 1918, in which the employers' plea of want of notice failed to affect court decisions are: Arcieri v. Booth & Flinn, Case No. 200169, Jan. 27, 1919; 190 App. Div. 885, Nov. 15, 1919; Cesaro v. Bossert Corp., Case No. S-12326, Apr. 24, 1919; 190 App. Div. 924, Dec. 29, 1919; France v. Kingston Shipbuilding Corp., Case No. 10903, May 3, 1919; 190 App. Div. 783, Mar. 3, 1920; Franklin v. Pierce Arrow Motor Co., Case No. B-11599, May 9, 1919; 190 App. Div. 923, Dec. 29, 1919; McCaffrey v. Dupont De Nemours Co., 20 S. D. R. 373, Apr. 4, 1919; 190 App. Div. 889, Nov. 21, 1919; Nokransky v. Masson Bros., Case No. 326742, June 6, 1919; 190 App. Div. 923; Dec. 29, 1919; Rooney v. Great Lakes Transit Corp., Case No. 13744-B, June 23, 1919; 191 App. Div. 10, Mar. 3, 1920; and Scism v. Union Mills, Case No. 12975-A, July 2, 1919; 191 App. Div. 929, Mar. 3, 1920.

C. ACCIDENTS OCCURRING BEFORE AMENDMENT OF § 18

The Appellate Division, unanimously and without opinion, affirmed findings of the Commission denying compensation to a quarry hand for loss of his eye because he had failed to give notice

of his accident. Licursi v. Balmforth Bros., File No. B-961, Oct. 16, 1918; 190 App. Div. 924, Dec. 29, 1919.

The question of notice figures in the briefs of Farrington v. U. S. R. R. Administration, 20 S. D. R. 365, Feb. 24, 1919; 190 App. Div. 920, Dec. 29, 1919; — N. Y., Mar. 9, 1920; and White v. American Society for Prevention of Cruelty to Animals, Death Case, No. 77038, May 21, 1919; 191 App. Div. 6, Mar. 3, 1920. These cases were reversed by the courts upon grounds other than notice. The question figures also in Nieresdursen v. Clark & Son, 19 S. D. R. 532, 4 Bul. 167, Apr. 9, 1919; - App. Div. reversed May 14, 1920; and Johnson v. Faribault Building Corp., 20 S. D. R. 453, July 9, 1920;- App Div. -, May 5, 1920.

XIV. PRESUMPTIONS IN FAVOR OF COMPENSATION CLAIMS

The presumptions of Workmen's Compensation Law, § 21, throw the burden of proof in compensation cases mainly upon the employer. Earlier decisions and opinions illustrating their operation are in Bulletin 81, pages 392-397, and Bulletin 95, pages 345-355. Additional cases are presented here.

A. CONNECTION BETWEEN ACCIDENT AND DISABILITY Given an accident and a subsequent disability, the Commission has held upon opinion by Commissioner Lyon that the presumptions of § 21 incline the scale to a holding that the disability is a consequence of the accident. Commissioner Lyon's opinion is as follows:

BUTERA V. MORSE DRY DOCK & REPAIR Co., 20 S. D. R. 418, 4 Bul. 176, May 13, 1919.

LYON, Commissioner: The doctors are, as is not unusual in many of these eye cases, in disagreement as to the causal relation between the injury and the present loss of vision in claimant's eye. There is, however, no question but that there was an accident resulting in a piece of steel entering the claimant's eye with sufficient force to imbed itself in the cornea so deep that it could not be removed without the aid of an expert physician. There is no denial but that three-quarters of the vision of this eye is now gone, nor is there any substantial denial of the fact that the claimant before this accident had vision in this eye which was perfectly useful for practical purposes. Given the accident and the loss of vision immediately following, I do not quite see how we could deny an award in this case even in the absence of the presumptions raised by section 21 of the law.

The employer claims that the presumptions raised by this section are limited to the fact that the accident arose in the course of his employment and that his work was hazardous but I think this is too limited a view to take of that section. I think the presumptions of section 21 are sufficient in a close case or an evenly balanced case, to turn the scale in favor of the employee. I am also of the opinion that there is no substantial evidence to overcome the presumption and that an award must therefore be made for the loss of three-fourths of the vision of this eye.

On the 13th day of May, 1919, the Commission acted upon the foregoing matter in accordance with the foregoing opinion. MITCHELL and SAYER, Commissioners, concur.

Given an accident consisting of a blow upon the chest and death from pneumonia three days thereafter, the presumption is that the disease and the death are results of the accident: Delso v. Crucible Steel Co., 21 S. D. R. 590, 5 Bul. 95, Dec. 10, 1919.

B. UNWITNESSED ACCIDENTS

Employees are often found dead or injured, no one having witnessed the death or the injury. Their bodies are discovered in the water or they disappear under circumstances that indicate accidental drowning, though the bodies are not recovered. They are found dead from asphyxiation, heat prostration or freezing. Now and then they incur unwitnessed accidental injury and survive but cannot themselves account for the cause. In such cases the burden of proof is upon the employer to show that the accident has not arisen out of and in the course of the employment and the probabilities are that he will not be able to do so. In but one of eleven cases of unwitnessed death described in Bulletin 95, pages 346-352, did the Commission and the Appellate Division deny death benefits. In the one exceptional case the employer showed that the employee had lingered unduly upon his employer's premises after his discharge and had thereafter lost his life by drowning: Whalen v. Stanwood Towing Co., 186 App. Div. 190, Jan. 8, 1919.

In but one of the following six additional cases of unwitnessed accident did the claimants fail of compensation.

In the exceptional case, a laborer who had been wheeling ashes for his employer's boiler house crawled into a gas shanty, upon the premises but remote from his place of work, and was there found dead of gas poisoning; the Commission denied death benefits to his father, saying that there had been no occasion for him to go to the place in connection with his work; the Appellate Division sustained the denial unanimously and without opinion: Salas v. Lackawanna Steel Co., 20 S. D. R. 368, Mar. 19, 1919; 190 App. Div. 924, Dec. 29, 1919.

A pressman returned to his work at night after having had his supper and fell to the floor of the press room, fracturing his skull; no one witnessed his fall; he died without recovering consciousness; the employer sought to show that the fall had been due