1. Generally-Continued.

Upon the question of casualty the opinions of experts are evidence, but they do not constitute either exclusive or conclusive proof; and the question is to be judged by the real facts, like any other matter of evidence. Ibid.

Where the proofs as to the question of actor and subject are balanced, and it is impossible to determine by them whether the case be one of contemporaneity or of collocation only, or of cause and consequence, it is a reasonable inference of public policy to presume in favor of the service. Ibid.

It is according to public policy to presume in favor of the service where the line of duty enters potentially into the causes of disability or of death, although it be not certainly provable that it was the exclusive or predominant cause. Ibid.

Where an officer of the Navy dies of disease contracted while on the retired list, his widow is not pensionable. Cornelia Lanman (Sec. Delano), 2 P. D. (o. s.), 51.

Where soldier incurs disability while voluntarily, and without orders, engaged in shooting squirrels, or while asleep on his post, he is not in line of duty, as contemplated by the pension laws, and therefore not entitled to pension. Jesse Corn (Asst. Sec. Hawkins), 1 P. D., 196.

The line of performance of military duty must sustain to the casualty or the injury alleged the relation of cause, and the disability must be the legitimate sequence of such cause in the service. Citing and following the Commissioner's rulings in David Smith, No. 182216, March 25, 1885 (Pension Digest, 1885, 278), and Joseph W. Stanley, No. 468694, August 7, 1885 (Pension Digest, 1885, 278), and W. H. Brokenshaw (1 P. D., 194). Alexander Gillespie (Asst. Sec. Hawkins), 2 P. D., 16.

Question is not whether the soldier was in line of duty at the time he received his injury in the sense that he was not disobeying any military law, rule, or regulation, or guilty of any culpable negligence, but rather what is the quality or condition of the act which produced the injury of which complaint is made. James Harding (Asst. Sec. Hawkins), 2 P. D., 232.

Invalid pensions are granted for causes of disability due exclusively to line of duty in the service. Daniel B. Kaufman (Asst. Sec. Bussey), 3 P. D., 137.

Whether a soldier was acting under "military authority" is not the only test of his being within the line of duty; but the purpose for which the authority was given, as to being connected with his military duties or with his own private affairs, and also whether the authority was an order or a mere permit, and the character of military duty the command was performing

1. Generally-Continued.

at the time must be considered; although if that which he was only permitted to do was in line of good military discipline and calculated to promote the interests of the service, he would still be in line of duty. Affirming W. P. Hargrave, 16 P. D. (o. s.), 95. William R. Johnson (Asst. Sec. Bussey), 4 P. D., 167.

(a) Examples.

Where claimant, stationed in Boston, visiting the forts in the harbor in the performance of duty, subsequent to the rebellion, contracted a disease from which he died: Held, That under the provisions of section 4694, Revised Statutes, the disability was contracted in line of duty. Martha G. Burnham (Sec. Schurz), 5 P. D. (o. s.), 102.

Where soldier receives an injury caused by comrades jumping on him while he is climbing into his bunk, he was not injured in line of duty. W. H. Brokenshaw (Asst. Sec. Hawkins), 1 P. D., 194.

Overruled; s. c., 3 P. D., 11.

The question is not whether claimant was to blame for the conduct of his assailant (who had struck claimant with a stick of wood while he was in front of his tent untying his shoes preparatory to going to bed, as he alleged), but whether the blow struck by the latter was a necessary or even a reasonable incident of line of duty in this case. It is held it was not. Citing and following William M. Ammerman, 1 P. D.,5; William Jones, ibid., 87. Jesse M. Stilwell (Asst. Sec. Hawkins), 2 P. D., 83.

Where a soldier having been detailed with others as a guard on the outside of a circus tent to protect it was permitted to go into the tent during the time he was relieved from active duty, and while within was injured by the seats giving way, he was not in line of duty. Citing and following William M. Ammerman, 1 P. D., 5. Zenas Hamilton (Asst. Sec. Hawkins), 2 P. D., 217.

Overruled: s. c., 3 P. D., 3.

Claimant having been injured in a pensionable degree by a fall of seats while witnessing a circus performance and it appearing that he was at the place as a member of a detail ordered to protect and guard said circus, and was within the tent at the time of the accident by the permission of his superior officer, the sergeant in charge of said detail, it is held that he was in the line of duty, for pensionable purposes. The accident by which claimant was injured was unavoidable on his part, with the happening of which he was in no way concerned. s. c. (Asst. Sec. Bussey), 3 P. D., 3.

1. Generally-Continued. (a) Examples-Continued.

Claimant having incurred injury of left side, caused by three soldiers, names unknown, jumping on him while he was climbing to his bunk, the Department holds that, inasmuch as the alleged injury happened to him without any fault or neglect on his part, claimant was in the line of duty. The alleged injury, though not a necessary result, was as to claimant an unavoidable incident of the service, he having been the helpless victim of an irresistible assault. W. H. Brokenshaw (Asst. Sec. Bussey), 3 P. D., 11.

Under section 4701, Revised Statutes, injuries incurred by a claimant while en route to his home from the place of disbandment of his organization are not pensionable. John Vance (Asst. Sec. Bussey), 4 P. D., 18.

Where a soldier was requested by his captain (who was sick in quarters) to go outside the camp and endeavor to procure some food suitable for him in his sickness, and soldier procured permission accordingly from the officer commanding the regiment, who directed him also to inspect while out the surrounding country with a view to procuring forage, and soldier, while acting in pursuance of these directions and permissions, was thrown from the mule he was riding and injured: Held, That he was injured in line of duty and is pensionable. Overruling former decision herein, L. B., (Ua, 103. Wesley C. Gerard (Asst. Sec. Bussey), 4 P. D., 51.

The claimant was attacked by several soldiers, who were scuffling, who threw him down and injured him, he being an involuntary participant in the scuffle: Held, That injury was received in line of duty; under W. H. Brokenshaw (3 P. D., 11), and Mary E. McNeil (Ib., 26). John Dean (Asst. Sec. Bussey), 4 P. D., 392.

An injury received while the claimant was on his way to enlist in the Army is not pensionable, as he was not then enlisted in nor otherwise connected with the service. William P. Payne (Asst. Sec. Bussey), 6 P. D., 177.

Upon the report of the War Department that there are no orders directing soldiers to play base ball, but that the Department encourages athletic sports by enlisted men as promoting the efficiency of the men, and it has been the rule to regard injuries received by officers and enlisted men while engaged in such sports in camp or garrison as incurred in line of duty, it was held that the rejection on the ground alone that alleged disability was incurred while playing ball was error, and the case was remanded for further investigation as to the circum

1. Generally-Continued.

(a) Examp.es-Continued.

stances under which such disability was incurred, and further adjudication. Henry Newman (Asst. Sec. Reynolds), 8 P. D.,

2. Absence from command as affecting line of duty.

It has been uniformly held that a soldier absent from his command of his own volition merely, and not acting under any military order, is not in line of duty; and a provision of law (section 4700, Revised Statutes), having been made for persons absent on account of sickness or under a furlough particularly designated, it must be understood that those not on public duty who may be absent from other causes and other circumstances are excluded and the principle involved is the same whether absence be for a long or a short time. Benjamin W. Seaman (Sec. Kirkwood), 9 P. D. (o. s.), 8.

(a) Absent by permission—when in.

Claimant while absent from his command on a written pass attending a party, within the lines of the Army, was captured and confined in Andersonville prison. It is held that a disability resulting from said imprisonment was contracted in the line of duty. Charles Wilcox (Asst. Sec. Hawkins), 1 P. D., 11.

The sailor having obtained from his commandant permission to visit on shore, with orders to return by a certain hour, was drowned while returning by reason of the boat capsizing in a squall: Held, That the sailor was in line of duty at the time of his death. Florence N. Cowie (Asst. Sec. Hawkins), 2 P. D., 58.

Where a soldier, sent on an errand, was returning to his command but, in the exercise of his discretion, went out of a direct course in order to obtain some refreshment at a hotel and accidentally fell into an open cellar by the way, it is held that his conduct involved no reprehensible deviation from the line of duty, and the injury is pensionable. James A. Pearl (Asst. Sec. Bussey), 3 P. D., 375.

Overruled: 7 P. D., 376.

Attendance, under permission of his superior officer, on religious service held outside of camp, there being no chaplain or religious services in camp, does not take a soldier out of line of duty for pensionable purposes. Citing W. P. Hargrave, 16 P. D. (0. s.), 95. William R. Johnson (Asst. Sec. Bussey), 4 P. D., 167.

(b) Absent by permission-when not in.

Widow is not entitled if soldier died while on leave to

attend to private business. Roslinda McCabe (Sec. Harlan), 5 L. B. P., 273.

2. Absence from command as affecting line of duty-Continued. (b) Absent by permission-when not in—Continued.

Line of duty is not accepted when the soldier, on a verbal pass, for a purpose not connected with the service, was cap tured. Robert Newman (Sec. Schurz), 6 P. D. (o. s.), 228.

Soldier not in line of duty when disability is contracted while in pursuit of pleasure or absent to attend to private business. Benjamin F. Worrell (Sec. Schurz), 6 P. D. (o. s.), 309.

An injury from the accidental discharge of a revolver while shooting fish when away from the company by permission of the captain is not incurred in line of duty. Benjamin W. Seaman (Sec. Kirkwood), 9 P. D. (0. s.), 8.

Where a soldier was accidentally drowned while returning from a supper outside of camp and across the Potomac River, which he attended by permission, his widow is not pensionable, as he was not, at the time of the accident which caused his death, engaged in any military duty, but was absent from his command for a purpose not in any manner connected with his duty as a soldier. Elizabeth Bragunier (Sec. Teller), 9 P. D. (o. s.), 250.

The soldier having frozen his feet in a furious snowstorm while absent over night from his company under permission to visit his relatives several miles from the line of march, it is held he is not pensionable, as the disability was not incurred while on a public duty, or sick leave, or veteran furlough with the organization to which he belonged. John Pruitt (Sec. Teller), 9 P. D. (o. s.), 295.

A soldier voluntarily absent from his company is out of the line of duty and exclusively responsible for whatever casualties befall him when not legitimately connected with the mili tary service. William H. Cummings (Asst. Sec. Hawkins), 1 P. D., 351; John Yant (Asst. Sec. Hawkins), Id., 118.

A soldier having been killed by a locomotive engine while absent from camp on a pass, in pursuit of pleasure: Held, Not in line of duty. Sarah Croft (Asst. Sec. Hawkins), 1 P. D., 279.

A soldier is not in line of duty while absent beyond the lines of his command on leave or on pass in pursuit of pleasure or to attend to private business, and a disability contracted or accidental injury incurred while so absent is not pensionable. Susan Stevenson (Asst. Sec. Bussey), 3 P. D., 171.

A member of the United States Marine Band having been accidentally killed while engaged, by permission, on a private excursion for his own benefit, it is held that the casualty did