Claim of Donovan v. Alliance Electric Co.

191 A.D. 303, 181 N.Y.S. 823, 1920 N.Y. App. Div. LEXIS 4707

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1920
• Status: Published

Opinions

Cochrane, J.:

The claimant on December 29, 1918, in the course of his employment hit his head against a desk. He worked regularly thereafter until January 16, 1919. He is now suffering from encephalitis commonly known as “ sleeping sickness.” The Commission finds that this disease was “ caused by a fracture to the base of the skull ” sustained by him when he hit his head. There is no evidence of a fractured skull. The evidence is to the contrary. At one stage of the disease the physicians thought the symptoms indicated a fractured skull but subsequent developments caused them to change their opinion. It cannot be that a tentative diagnosis in a partially developed case subject to future developments and which is changed by the later history of the case has any probative force. At most a statement of a witness out of court inconsistent with his testimony discredits the witness but is never received as evidence of the fact contained in such inconsistent statement. No physician in this case has ever testified to a fractured skull and no physician connects the present disease with the blow to the head. The Commission in its effort to make such connection has based its finding on the erroneous hypothesis of a fractured skull of which there is no evidence.

I, therefore, think the award should be reversed and the matter remitted to the Commission.

All concur, except John M. Kellogg, P. J., dissenting, with an opinion in which Kiley, J., concurs.