193 A.D. 862 | N.Y. App. Div. | 1920
The State Industrial Commission has made an award to the administratrix of Jessie Kade, deceased, for compensation for disability, not death benefits, from December 29, 1917, to May 7, 1919, the date of her death. Whether it is proposed, after the payment of this compensation, to continue the punishment after death and compel the insurance carrier to pay death benefits, does not appear, though almost anything seems possible.
The claimant in this case is the administratrix of Jessie Kade, deceased, though for the purpose of convenience in discussion we will refer to the decedent as the claimant, and treat the case as though she had survived and was here claiming the compensation.
The claimant, Jessie Kade, was employed by the Greenhut Company in New York, on the 18th day of July, 1917, as a saleswoman in the hardware department. On that date a stock of hardware was to be placed on the shelves. A part of the invoice consisted of galvanized tubs wired together in packages of six. Claimant removed the wires and found that the tubs stuck together, and being unable to separate them she picked up the package and in doing so she says that she “ felt something snap inside of me, and I fell backward; then. I fell against the tubs and I got weak and I fainted and when I came to I was on the floor.” She further says that she struck her back and side against the wash tubs; that she subsequently went to the toilet room, where in passing water she bled; that there was blood in the basin in the toilet, and she makes it sufficiently clear that this blood was not of menstrual origin; so that it may be assumed for the purposes of this discussion that there was an accident on the 18th day of July, 1917, happening in the course of the regular employment, and that the injury sustained was in the back and side in the region of the left kidney, and that this injury was sufficient
Dr. Tompkins testified to making an examination of the claimant and that she found a displaced uterus. This examination occurred on the twenty-first day of September, about two months after the accident, and the doctor was unable to say whether the tipped uterus and the dropping of the right lddney, which she also found, were due to the accident; she testified that they might have been, and also that a woman standing on her feet a great deal, as in the case of the claimant, might develop these troubles independently of the accident; that this was quite common. Answering a hypothetical question, based on the conditions shown after the operation for the removal of the diseased left kidney, Dr. Tompkins testified that she did not think it would be possible that there could be any connection between the accident and the disease of the kidney. Commissioner Archer asked at this point, “ If there were a preexisting kidney lesion, would an accident such as described cause an acute exacerbation of the condition? ” To this Dr.
The claimant’s family physician was called and testified that he had treated the claimant for a slight difficulty some time previous to the accident; that he was again consulted about the middle of December, 1917, and up to the time that he sent her to St. Francis Hospital, where the operation for the diseased kidney took place. He said that when she came to him in December the claimant gave him a history of an exposure to a rain storm; that he examined her and thought she was suffering from grippe-pleurisy; that he treated her for that a few days, and, getting no results, became suspicious of his diagnosis; that he insisted upon a vaginal examination, which was refused. He says the claimant at that time informed him that she had been to Dr. Tompkins, and that Dr. Tompkins had inserted a pessary. The family doctor then says that he made a urine examination, and after watching her for a few days sent her to St. Francis Hospital, where an examination revealed a pus kidney, for which an operation was performed, demonstrating the accuracy of the diagnosis. This doctor was asked if he found any causal relation between the accident and the condition which was demonstrated by the operation, and he practically confirms the two previous doctors, by introducing a theory as to the infection. He says: “ The only way I consider her condition is this: that the accident or injury she had formerly at Greenhut’s weakened or bruised her kidney and the insertion of the pessary carried infection to this bruised or injured kidney and this caused the infection.” Of course, if this is true, then the accident was not the proximate cause of the disability for which-this award has been made. In Laidlaw v. Sage (158 N. Y. 73, 98, 99) the court, in discussing proximate cause, quotes with approval from Bishop on Non-
It is to be noted that the award does not date from the alleged accident in July, 1917, but from December 29, 1917, at about which time the diseased kidney became manifest, and, according to the claimant’s own physician, this disease was communicated, not by the accident, but by the insertion of a pessary a month or more after the accident, and the pessary, not the accident, conveyed the infection. Obviously, therefore, up to this point there is no causal relation between the accident and the conceded cause of disability. Prolapsus uteri and a falling of the right kidney, Dr. Tompkins says, would not produce any disability; was a condition requiring a monthly treatment for two years, which would not incapacitate the patient, and it was a condition quite common among women occupied as was the claimant.
Dr. O’Neill was a physician at St. Francis Hospital, and he testified that the claimant was suffering from a pus kidney when she reached the hospital on the eighteenth of January; that the record showed that she gave as the history of her then difficulty that she had been exposed to a severe rain storm; that she was suffering from chills and fever and had pleurisy. Answering a hypothetical question this physician said the accident was “ pretty remote.”
Dr. Edgerton, who performed the operation on the' claimant, in answer to a question by Dr. Lewy, the Commission’s advising physician, declared that he could not connect the injury with the disease. There appears to have been some controversy between Dr. Edgerton and Dr. Lewy as to what the
It may be that out of this massive record of 239 pages, of which counsel for the Commission says about one-half is “ devoted to verbal sparring between counsel which it is not necessary to read,” there may be patched together enough to constitute a scintilla of evidence to support this award, but it is certain that the verdict of a jury could not rest upon such a foundation; and the question is thus presented how far this court is limited by the provisions of section 20 of the Workmen’s Compensation Law (as amd. by Laws of 1919,
It would seem to follow that if the Workmen’s Compensation Law is to be literally followed, and the Commission’s conclusions of fact are to become final whenever there is a scintilla of evidence to be found in the record, the legislation does not meet with the requirements of due process of law, and this difficulty is not met by anything in the provisions of section 19 of article 1 of the State Constitution, which were designed to meet the objections pointed out in Ives v. South Buffalo R. Co. (201 N. Y. 271) and do not profess to deal with the question of the mode of determining' the essential facts on which the right to compensation depends. If, however, we read the provision of the statute to provide that the “ decision of the Commission shall be final as to all questions of fact which are supported by legal evidence, and as to all questions of law which are not reversed upon appeal as provided in section 23,” the way is open to a rational system, and one which can command the sanction of the courts; and this, we apprehend, is the true construction of the statute. Starting with the established rule that whether there is evidence to .support a finding of fact is always one of law (People ex rel. Stephenson v. Bingham, 205 N. Y. 168), we find that as early as the leading case of Laidlaw v. Sage (158 N. Y. 73, 97) it was held upon a long line of decisions, uniformly followed, that “ to justify the submission to the jury of any issue, there must be sufficient proof to sustain the claim of the party upon whom the onus rests, and that mere conjecture, surmise, speculation, bare possibility or a mere scintilla of evidence, is not enough.” (Matter of Case, 214 N. Y. 199, 203.)
It can hardly be argued successfully that evidence which would not warrant a jury in finding that the accident on which this claim must rest was the proximate cause of the disability of the claimant can be relied upon to support a finding of fact made by the State Industrial Commission, thus depriving the employer and the insurance company of their property. Such a holding would be to deny to these defendants that due process of law, that equal protection of the law, which is accorded to the owners of other property within the State of New York (U. S. Const. 14th Amendt. § 1; State Const.
If we are right in these propositions this case comes fully within the rule in Matter of Alpert v. Powers (223 N. Y. 97), - and the award may not stand.
The award appealed from should be reversed.
All concur, Cochrane, J., in result on the ground that there is no evidence to sustain the award, except John M. Kellogg, P. J., and H. T. Kellogg, J., dissenting.
Award reversed and claim dismissed.