175 A.D. 224 | N.Y. App. Div. | 1916
The question involved upon this appeal is the right to compensation of an employee suffering from the result of a cerebral hemorrhage induced by over-exertion while engaged in an occupation designated as hazardous by the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1913, chap. 816; re-enacted by Laws of 1914, chap. 41, as amd. by Laws of 1914, chap. 316).
There was much testimony given before the Commission by medical experts as to the cause of claimant’s enfeebled condition. • The experts called by the insurance carrier ascribed it to cerebral thrombosis, resulting from arterial sclerosis. The experts called by the claimant supported the theory that such condition resulted from embolism, and one of them testified that he found no evidence of arterial sclerosis. However, it is not for us to determine which theory seems to be better supported by the facts. The Commission has done that, and its decision, which finds justification in the evidence, is binding upon us.
As the appellants’ counsel state in their brief the case must be viewed as one of cerebral hemorrhage. So considered, I think, the award made by the Commission was fully warranted. The Workmen’s Compensation Law does not require that the nature of the injury shall be such as to present a visible or external sign. The act simply says (§2): “ Compen
Appellant’s main contention is that claimant’s condition was the natural progress and result of disease, and not of accidental personal injury arising out of his employment. This contention was disposed of by the decision of the State Industrial Commission made upon conflicting testimony mainly of medical experts. That the cerebral hemorrhage, if resulting from strain in lifting while the claimant was engaged in his usual employment, constituted an accidental injury within the meaning of the Workmen’s Compensation Law is denied by the appellants who, in their carefully prepared brief, cite many cases in support of their contention. These cases in effect hold that where the death of the employee occurs from heart failure or from inherent internal weakness or disease while the employee is doing his ordinary work in the ordinary way and not as the result of sudden or extra exertion, his death cannot he said to he accidental. In one of the cases cited (Barnabas v. Bersham Colliery Co., 103 L. T. [N. S.] 513) it was held that a stroke of apoplexy which may or may not have been brought on by a strain or over-exertion, is not an injury suffered by accident where there is no evidence that the work subjected the workman to any serious strain.
In the case at bar there was testimony that the claimant, who was fifty-two years old, and for twenty-two years had been in the service of the defendant employer, had always been in good health, and in fact had never up to the time of sustaining’ the apoplectic stroke been attended by a physician. Of the occurrence itself the claiman t testifies that while raising the barrel he felt a sensation, “ I had a dizzy head. It came on me suddenly.” His brother, who was assisting claim
The Workmen’s Compensation Law (§§ 3,10) requires that the injury, in order to entitle the claimant to compensation, must have been an accidental injury arising out of and in the course of employment. An “accident” has been most commonly defined as “an unlooked for mishap or an untoward event which is not expected nor designed.” (Connor Workmen’s Compensation, 8, 9.) “Accidental ” has been defined by the United States Supreme Court as “happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected. ” (Mutual Accident Assn. v. Barry, 131 U. S. 100, 121; Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177, 181.)
The following English cases support the decision of the State Industrial Commission in this case. As the British Workmen’s Compensation Act of 1906 (6 Edw. VII, chap. 58), which to a large extent formed the basis of our statute, provides (§ 1) for compensation for personal injury to a workman caused by accident arising out of and in the course of the employment, the English decisions are entitled to careful consideration in arriving at a proper construction of our Workmen’s Compensation Law. (Matter of De Filippis v. Falkenberg, 170 App. Div. 153.)
In the case of Fenton v. J. Thorley & Co. (5 W. C. C. 1; 19 T. L. R. 684, House of Lords) it was held that a physiological injury caused by an unlooked-for mishap or an untoward
In the case of Clover, Clayton & Co. v. Hughes (3 B. W. C. C. 275) a workman suffering from an advanced aneurism of the aorta was doing his work in the ordinary way by tightening a nut with a spanner. This ordinary strain caused a rupture of the aneurism, resulting in death. The House of Lords held that there was evidence upon which the county judge was justified in making the award. In. his opinion Lord Loreburn said: “No doubt the ordinary accident is associated with something external * * *. I think it may also be something going wrong within the human frame itself, such as the straining of a muscle or the breaking of a blood vessel. If that occurred when he was lifting a weight it would be properly described as an accident * * *.. The man ‘ broke a part of his body ’ to borrow Lord Bobertson’s expression in Brintons v. Turvey.”
In the case of McArdle v. Swansea Harbour Trust (8 B. W. C. C. 489; 11 N. C. C. A. 175, June, 1915), a workman fifty
The Court of Appeal in allowing the appeal and sending the case back to the county judge to make an award held that it was a misdirection to consider whether the rupture occurred when the deceased was or was not doing work of a light nature, and that an accident should have been found as soon as it was ascertained that the rupture occurred by reason of the strain at work, however slight that strain may have been. In the opinions of the court both Lord Cozens-Hardy, M. B., and Pickford, L. J., comment upon the two cases above cited as expressing the law of England.
At this point it may not be amiss to refer to the case of McCahill v. N. Y. Transportation Co. (2011 N. Y. 221), a negligence action, in which it was held that the acceleration of death causes death according to both the civil and the criminal law and hence that liability exists for hastening the death of a person in a diseased condition even though the disease would probably have caused death at a later time without defendant’s agency.
Beturning to the English cases. It was held by the Court of Appeal in Doughton v. A. Hickman, Ltd. (6 B. W. C. C. 77) that a workman who was suffering from a weak heart and whose duty it was to load heavy sacks on a truck and then with the help of another to push the trucks along the rails, and who shortly after pushing an empty truck and while he was having a rest, fell senseless and died soon afterwards, suffered death by accident, the medical evidence proving that the heart would not have failed had it not been subjected to more than ordinary strain.
It was held in Brown v. Kemp (6 B. W. C. C. 725) that a brewer’s assistant who felt a severe internal strain and became faint and sick while lifting a heavy cask, and later found that he had ruptured himself, was injured by accident although he had suffered a rupture in the same place twenty-two years before for which he had worn a truss up to within the last five or six years, when he found he could do his work without it. The County Court had held that although there was an injury by accident, it did not arise out of the employment as it was the result of gradual weakening and not of any unusual strain. The Court of Appeal held that there was a misdirection. Accident having been found, the evidence proved that it arose' out of the employment, and remitted the case to the County Court to fix the compensation.
It was held in Aitken v. Finlayson, Bousfield & Co. Ltd. (7 B. W. C. C. 918; 51 Sc. L. R. 653 [Court of Session, Scotland]) that a workman employed as a gateman at a- flax mill whose duty it was to attend to the gate, telephone and ambulance appliances, and personally to minor accidents, who being informed of a scaffold accident to some workmen not in the employment of the mill owners, but engaged in doing work for them on the premises, ran from the gate to the scene of the accident and back to the gate in order to telephone for a doctor and an ambulance, and who while telephoning was seized with an apoplectic fit from which he died, was entitled to an award of compensation upon the ground that his death was due to apoplexy brought on by the exertion of running as quickly as he could and the excitement caused by the scaffold accident, and hence that his death was due to an accident arising out of and in the course of the employment.
We do not understand it to be seriously questioned that the
We conclude that in the case at bar the claimant having been an employee engaged in a hazardous employment and having suffered a cerebral hemorrhage as the result of unusual strain or exertion while prosecuting such employment, suffered an accidental injury within the intent and meaning of the Workmen’s Compensation Law and that the same arose out of and in the course of his employment and that he is entitled to be awarded the compensation established by that act.
The award of the State Industrial Commission should be affirmed.
Award unanimously affirmed.
L. R. [1905] A. C. 290.—[Rep.