Claim of Mausert v. Albany Builders Supply Co.

164 N.E. 729, 250 N.Y. 21, 1928 N.Y. LEXIS 1492

• Court: New York Court of Appeals
• Decided: December 31, 1928
• Status: Published

Opinions

O’Brien, J.

This is the question certified: “ Was there any evidence in the record upon which the State Industrial Board could make a finding of fact that the injury resulting in the death of William Mausert was an accidental injury and arose out of and in the course of his employment? ”

William Mausert was employed as a teamster by the Albany Builders Supply Company. While driving his horses at a walk over smooth pavement, he fell from his seat and two wheels passed over his body. Within three hours he died. There is no evidence that his fall was intentional and the carrier at the hearing expressly disclaimed an attempt to prove intoxication. Although the report of our decision in Matter of Daly v. U. S. Trucking Corp. (248 N. Y. 515), upon which respondent relies, states no reason for affirmance, the fact is that we placed that decision upon the ground that no inference could fairly be drawn from the evidence except the conclusion that the injury resulted solely from intoxication. Here nothing indicates that Mausert may not have been sleepy or awkward or stupidly negligent. The statute does not bar recovery on account of such conduct. It excludes compensation for injuries due only to intention or intoxication. The Industrial Board made no finding in respect to the cause of the fall and the Appellate Division was of the opinion, as we are, that the cause is entirely unexplained. All we know is that death resulted from a fall followed by the imposition of the wagon’s weight and that these events occurred while the victim was in the course of his employment. The evidence proves that the injury could have happened only to one who, falling from a wagon seat, was run over. The driver’s position from which he fell was due entirely to his employment and, accordingly, the accidental injury arose out of his employment. There is no proof of illness preceding the accident, but in view of respondent’s suggestion in its brief that the explanation for the fall is illness and in view of the discussion in the briefs of both parties and in the Appellate Division’s opinion concerning decisions relating to injury following a fall caused by disease unrelated to the employment, we may properly take this opportunity to reaffirm the doctrine announced in Matter of Barath v. Arnold Paint Co. (238 N. Y. 625).

The revised finding by the State Industrial Commission in Matter of Barath, after that case had been remitted to it by the Appellate Division on the first appeal, is: “He was employed on a scaffold raised above the common level and was subjected, therefore, to a hazard greater than the average person; that while so employed he sustained an apoplectic stroke and fell from such scaffold, striking his head and thereby sustaining a fracture of the skull; and as a result of the injuries thus sustained he died on September 6, 1916. The injuries which resulted in the death of Michael Barath were accidental injuries, and arose out of and in the course of his employment.” The Attorney-General’s brief presented to this court on that appeal argued that the injuries came from an accident which arose out of and in the course of his employment and cited Wright & Greig, Ltd., v. McKendry (11 B. W. C. C. 402); Wicks v. Dowell & Co. (7 W. C. C. 14); Fennah v. Midland & G. W. Ry. (4 B. W. C. C. 440); Swansea Vale v. Rice (4 B. W. C. C. 298); Carroll v. What Cheer Stables Co. (38 R. I. 421); Dow’s Case (231 Mass. 348) and Board of Commissioners v. Shertzer (73 Ind. App. 589) in support of his contention; With those findings of fact and those arguments before this court, the award by the Industrial Commission and the order of the Appellate Division were unanimously affirmed here. The decision in the Barath case is the accepted doctrine of this court and of the highest courts of many other States in this country and of the English courts. We adhere to it not merely as a precedent but as a decision founded upon logic and justice. The question in the Barath case and in the case at bar as well as in all the others cited demands an answer respecting the immediate, proximate cause of the injury. An apoplectic stroke or vertigo may be the proximate cause of the fall but it is surely a remote cause of the injury. An illness sufficiently arresting to cause the patient to fall may prove entirely devoid of any result. The sick man may drop upon a bed or a soft rug and suffer no injury. Barath fell from a scaffold and fractured his skull; Mausert fell under wagon wheels and was crushed. A physical seizure unrelated to the employment is not such an accident as is compensable. (Matter of Hansen v. Turner Const. Co., 224 N. Y. 331.) It is the fall and the injury resulting from it that constitutes an accident within the purview of the statute. The cause may be disregarded and the inquiry limited to an investigation to disclose whether the fall, having occurred, bore with it such consequences as would not have occurred except for the employment. A teamster, suffering from heart disease may sink upon a quantity of straw in the stable. He may be temporarily dazed and immediately recover or he may die from cardiac syncope. Unless his disease was caused by his employment, his death does not arise out of his employment. Another teamster, suffering from the same disease in a form not sufficiently severe to cause him to do more than to slide from his seat to the pavement, breaks his bones or is killed. Then his injury arises out of his employment. If he had not been driving his wagon and fallen to the street he would not have been hurt.

The order of the Appellate Division should be reversed, the award of the State Industrial Board reinstated, with costs in this court and in the Appellate Division and the question certified answered in the affirmative.