20 A.D.2d 743 | N.Y. App. Div. | 1964
Appeal by the employer and its carrier from a decision and award of death benefits on the grounds that there is no substantial evidence to sup-port the board's finding of causal relationship and that, in any event, claimant is not the lawful widow of the decedent. On December 24, 1956 decedent, while performing his duties as a cab driver, was involved in an automobile accident in which he was thrown against the steering wheel and toward the right side of the ear. The next day he consulted his physician who diagnosed, among other injuries, an “acute left ventricular failure due to aggravation of pre-existing hypertensive cardiovascular disease.” An examination of decedent on January 16, 1957 by the carrier’s physician and by his own physician on the next day both revealed that decedent’s heart had “ compensated ” and that no permanent disability or complications existed. On January 28, 1957 decedent passed away in his sleep from what was diagnosed as hypertensive cardiovascular disease. The issue of causal relationship evolved into the usual dispute among the medical witnesses, which is the pattern in eases such as this, especially where, as here, a pre-existing condition is also a contributing factor. While decedent’s physician was “ less than positive ” as to the relation of the accident to decedent’s death, he did have a “ reasonably certain ” belief that “ the accident was a contributing cause to his death ” and thus his testimony meets the test established in Matter of Ernest v. Boggs Lake Estates (12 N Y 2d 414). On the issue of whether claimant was decedent’s lawful widow, the record reveals that after the death of his first wife decedent married one Mary Best. On June 12, 1950 decedent procured a divorce from Mary Best in the Chancery Court of White County, Arkansas, and on September 11 of the same year married claimant in Elkton, Maryland. One child was born of this marriage. Then on May 6,1953 Mary Best was granted a divorce in the Supreme Court of the State of New York and subsequently remarried. Decedent was personally served in this proceeding but did not appear. The Federal Constitution requires the courts