Claim of Beaver v. Town of Collins

263 A.D. 1033, 33 N.Y.S.2d 413, 1942 N.Y. App. Div. LEXIS 7965

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1942
• Status: Published

Opinion

Claimant appeals from a decision of the State Industrial Board reversing an award for death benefits and dismissing the claim on the finding of fact that no accident occurred. The claimant’s intestate was regularly elected to the office of town highway superintendent of the town of Collins, Erie county, N. Y., at the November, 1937, general election. On March 18, 1938, he was out on the town highway with a Ught truck. He stopped to visit some friends at a farm and when he returned to the truck and started up it became mired in the highway. He shoveled it out and got it going. WhEe he was engaged in this work, with help, he sank to the ground, lost consciousness and died. He had an incurable heart condition which had existed for at least five years and died of heart failure. The evidence did not show an accident in the form of severe and unusual strain, nor was there any showing of accident in the nature of catastrophic or extraordinary occurrence, and the evidence sustains the finding of the State Industrial Board. The cross-appeal of the employer and insurance carrier as alleged in the reply brief should be dismissed. Decision affirmed, with costs to the State Industrial Board, on the authority of Matter of Dworak v. Greenbaum Co. (287 N. Y. 555); Matter of LaFountain v. LaFountain (284 id. 729). Crapser, Bliss and Sehenck, JJ., concur; Hill, P. J., and Poster, J., dissent, and vote to reverse the decision and remit the matter to the Industrial Board.