146 Misc. 685 | New York County Courts | 1933
In this proceeding the petitioner seeks to recover from the respondent village the sum of $3,000 upon the ground that the intestate, Edmond H. Smith, being an active member of
From the pleadings and the testimony the following appears: The deceased, Edmond H. Smith, was a member of a volunteer fire company of the respondent village, operating within its limits and had been for several years prior to his death. As such volunteer fireman it was his duty to respond to alarms of fire and operate as chauffeur certain automotive fire apparatus. He lived about two blocks distant from the fire house. On July 18, 1929, an alarm of fire was sounded. The decedent was at his home. As was his duty he responded immediately and hastily walked or ran to the fire house. The testimony indicates that he ran part if not all the distance, and at least a distance of 200 feet. When he reached the fire house he ascended the driver’s seat in the automotive apparatus and proceeded to drive the same out of the fire house to the fire. Another fireman was seated beside him. The apparatus proceeded properly for some distance in the direction of the fire. The decedent’s companion then observed that the apparatus was moving erratically toward the curb, looked at the decedent and saw that he was slumped over the wheel, whereupon the decedent’s companion seized the wheel and brought the apparatus to a stop. Smith, the driver, was dead. The undisputed testimony is that he died from acute dilatation of the heart.
Acute dilatation of the heart being the immediate cause of decedent’s death, the petitioner contends that such dilatation resulting in death was an “ injury ” within the meaning of the statute brought about by the physical exertion, activity and excitement to which the decedent was subjected in hastening to respond to the alarm and in operating the apparatus. In so contending, the petitioner seeks to find an analogy in the provisions of the Workmen’s Compensation Law and the decisions thereunder. As in my opinion such analogy is compelling, an examination of that statute and of those decisions is of importance.
By virtue of the Workmen’s Compensation Law, the employer is required to secure and to pay or provide compensation to his employees for “ injury arising out of and in the course of the employment, without regard to fault as a cause of the injury.”
It will thus at once be noted that under the Workmen’s Compensation Law it is only “ accidental injuries ” that require compensation, whereas in section 205 of the General Municipal Law, it is “ injuries ” generally. Consequently under the latter statute the right to compensation is broader and less restricted if anything than under the Workman’s Compensation Law.
The purpose and intent of the Workmen’s Compensation Law is to protect and secure workmen and their dependents from want in case of injury or death incurred while engaged in the employinent and to make reasonable compensation for injuries sustained or death incurred by reason of such employment as a part of the expense of the business. (Matter of Post v. Burger, 216 N. Y. 544.)
That statute, therefore, should be liberally construed to effect such purpose and intent. (Matter of Waters v. Taylor, 218 N. Y. 248; Matter of Heitz v. Ruppert, Id. 148.)
That act, however, does not afford compensation for injuries which are merely contemporaneous or coincident with the employment or collateral to it. In order to be compensable the injury must be the result of the employment and flow from it as the inducing proximate cause. In other words, in order to establish the right to compensation there must be proven by facts a direct connection between the injury as a result and the employment as its proximate cause. Consequently, for example, where an employee suffered a hernia while at work but no evidence was adduced' as to the nature or cause of the hernia, no attempt made to prove that a lifting or strain could have produced it, but on the contrary it appeared that it might well have arisen from natural causes without any unusual lifting or strain, compensation may not be awarded. (Matter of Alpert v. Powers, 223 N. Y. 97.)
On the other hand, even prior to the decision last cited, a compensable injury had been held to exist in cases where a stroke of apoplexy resulting in death, or a dilatation of the heart resulting in death, were induced by an unusual or excessive exertion on the part of the employee in the course of his employment. (Uhl v. Guarantee Construction Co., 174 App. Div. 571; Fowler v. Risedorph Bottling Co., 175 id. 224; Matter of Cowen v. Cowen, etc., Co., 176 id. 924.)
Shortly following the Alpert Case (supra) the Court of Appeals held similarly in Matter of Hansen v. Turner (224 N. Y. 331). In that case the employee collapsed and fell while at work. No one saw the occurrence. His coemployee found him unconscious. He died the following morning and death was found to have been
On the other hand, where the employee suffered from a hernia which the evidence showed or indicated was caused by strain from lifting heavy material in the course of his employment, compensation was allowed. (Matter of Veneroni v. Baush & Lomb Optical Co., 229 N. Y. 628; Matter of Jordan v. Decorative Co., 230 id. 522.) In the Veneroni Case (supra) the Court of Appeals affirmed upon the determination by the Appellate Division that the evidence," including the employer’s statement of the injury, established the claim, such statement reporting that the employee was injured while doing his regular work and that the injury was caused by strain from lifting. In the Jordan Case (supra) the employee lifted a heavy box, strained his side and hernia resulted. The Court of Appeals said that there was no doubt that this was an accidental injury within the meaning of the statute, differentiating the Alpert Case (supra) upon the ground that in that case there had been no finding of any causal relation between the strain and the rupture. The principle thus established is that where a causal relation between the strain and the injury is found and proven, it is within the statute and is compensable.
The same principle was applied in Matter of Barath v. Arnold Paint Co. (238 N. Y. 625) and Matter of Mausert v. Albany Builders (250 id. 21). In the Barath case the employee, while working on a scaffold in the regular course of his employment, suffered an apoplectic stroke, fell from the scaffold, fracturing his skull, and died. In the Mausert Case (supra) the employee, while driving as a teamster in the course of his employment, fell from his seat, the wheels of the vehicle passed over his body, and he died. The cause of his fall was entirely unexplained but it was suggested or inferred that it resulted from some illness. The court pointed out that physical seizure unrelated to the employment is not such an accident as is compensable. Nevertheless, compensation was allowed in both cases by disregarding the cause and determining only that death resulted from the fall and that the fall resulted while the employee was engaged in the course of his employment and carried with it consequences which would not have occurred except for the employment.
It may be deduced from these decisions that the principle to be applied is as follows: The fact that the employee was suffering from a disease does not necessarily bar him from right to com
This is the law not only in New York but in other States of the Union and in Canada. (England: Clover & Co. v. Hughes, 1910 A. C. 242; Fenton v. Thorley & Co., 1903 A. C. 443; Massachusetts: Brightman’s Case, 220 Mass. 17; Fisher’s Case, Id. 581; Madden’s Case, 222 id. 487; New Hampshire: Guay v. Brown Co., 60 A. L. R. 1284; Maine: Patrick v. Ham, 119 Me. 510; 13 A. L. R. 427; Brown v. Nelson, 123 Me. 424; 60 A. L. R. 1293.)
The principle and the rule to be applied have been set forth and explained with great clarity in Madden’s Case (supra), which case, as well as the English cases above cited, has been cited with approval by the New York Court of Appeals. (See, for example, Matter of Alpert and Matter of Jordan, supra.)
This principle and rule have been sustained and applied generally. The authorities and precedents are too numerous for extended citation. (For collection of such authorities see 6 A. L. R. 1253, and Annotation, p. 1256; 7 id. 1611, and Annotation, p. 1614; 13 id. 427, and Annotation, p. 438; 19 id. 90, and Annotation, p. 95; Id. 107, and Annotation, p. 110; 28 id. 200, and Annotation, p. 204; 60 id. 1284, and Annotation, p. 1299.)
Brief reference to some of those authorities in which the situation was analogous to that here presented may be helpful. In Crosby v. Thorp-Hawley Co. (206 Mich. 250; 6 A. L. R. 1253) a traveling salesman hurrying to catch a train while carrying heavy grips and becoming excited as he ran to catch the train, suffered from paralysis caused by the bursting of a blood vessel in the brain. It was held to be an accidental injury requiring compensation. In Schroetke v. Jackson-Church Co. (193 Mich. 616) it was similarly held that a watchman with a weak heart was entitled to compensation where death resulted from heart failure due 'to exertion and excitement in performing his duty to give an alarm of fire. In Brightman’s
The foregoing citation of authorities sufficiently indicates the principle and rule to be applied, and which are applied generally in all jurisdictions in cases of this kind. The courts of this State have passed directly upon the question of whether death resulting to an employee while engaged in the usual course of his employment is a compensable injury in a case where the employee was already suffering from a heart affliction. (Matter of Thompson v. City of Binghamton, 218 App. Div. 451.)
In that case the employee was a school janitor and one of his duties as such was to go to the school in case of a fire alarm. Such an alarm occurred, and although in fact there was no fire, the employee did not know it. He was at home at the time. He went to the school by automobile. He hurried in as fast as possible,
The Appellate Division sustained the award of the compensation. In so doing they were obliged to distinguish their prior decision in O’Connell v. Adirondack Electric Power Corp. (193 App. Div. 582), although the distinction is difficult to follow as the court itself admitted. They held, however, that whether there was any substantial distinction between the O’Connell case and the Thompson case, the later decisions of the Court of Appeals and particularly that of Pickerell v. Schumacher (215 App. Div. 745; affd., 242 N. Y. 577) sustained the- court’s position in the Thompson case. In making such determination the court said: “ The excitement to which Thompson was subjected and his activity undoubtedly hastened his death, brought his diseased heart condition to the climax. The over-excitement and exertion were the real proximate cause of his death. The acute dilation of the heart was the accidental injury.”
In the Pickerell Case (supra) the determination of the Appellate Division, which was affirmed by the Court of Appeals, sustained the right to compensation of an employee whose occupation was to drive a hearse. His brakes failed to hold and the hearse started to back down the hill, ran against the side of the road and stopped. The employee suffered no physical injury whatsoever. Little strain was involved in operating the steering wheel. The only “ accident ” to him was the mental nervous excitement resulting. The following morning he suffered an apoplectic stroke shown to have resulted from the over-excitement.
Later the same question was presented to the same department of the Appellate Division (Matter of Andrews v. Emporium Forestry Co., 224 App. Div. 327). In that case the employee was an assistant mill foreman. As a part of his duties he was required to return to
The Thompson Case (supra) was followed and approved in Matter of Blass v. Long Island Motor Parkway (222 App. Div. 706), confirming an award made by the State Industrial Commission in a case of death of an employee from heart trouble brought on by excitement while arguing with the occupant of a parked car. The Thompson and Andrews Cases (supra) were likewise followed and approved in Matter of Shapiro v. Moss (227 App. Div. 681). The principle has been applied generally in the making of awards by the State Industrial Commission in similar cases. (See Annotation to Workmen’s Comp. Law, § 2, subd. 7, in McKinney’s Consolidated Laws of New York, book 64.) Among the latter the petitioner’s counsel calls attention to the following as particularly analogous: Armstrong v. American Red Cross (24 State Dept. Rep. 143); Murry v. Cummings Construction Co. (Id. 297); Eggerstadt v. New York Tribune, Inc. (Id. 401).
Sufficient has been shown to demonstrate clearly that were this a claim for compensation under the Workmen’s Compensation Law, an award could and should be made.
Turning then to the present case it appears that the analogy as noted above is compelling. Indeed the situation as between a volunteer fireman and the municipality which he serves calls even more strongly perhaps for compensation in case of disability or death than it does as between a paid employee and his employer in ordinary employment. As is well known, these volunteer firemen are not engaged in fire service as a vocation. They have no fixed or other compensation. They are usually paid nothing for their services and if paid at all it is a mere pittance. They render a meritorious service to the community. The fact that they render
Such indeed was the determination of the Second Department of the Appellate Division in an analogous case (Matter of Marzen v. Town of Huntington, 234 App. Div. 869). In that case the decedent, a volunteer fireman, responding to an alarm, dropped dead while attending a fire. For a year previous to his death he had been suffering from a heart affliction and under the care of physicians. He collapsed about 150 feet from the scene of the fire. The death certificate indicated that the cause of death was over-exertion and that coronary disease of the heart was a contributing cause. The
In the case now before me, although there is some conflict in the proof, the evidence fairly indicates that the decedent for sometime previous to his death was suffering from some sort of heart affliction. The evidence is also sufficient to sustain a finding that, such being the case, the dilatation of the heart which caused his death resulted from the exertion and excitement in running to the fire house, getting out the apparatus and operating it,, all in the line of his duty as an active volunteer fireman. Such being the case it follows upon principle and authority that under the statute in question he died as a result of injury incurred while in the performance of his duties as such fireman and that his administratrix, the petitioner, is entitled to the compensation provided for by the statute.
Submit findings accordingly.
