Claims of Van Keuren v. Dwight Divine & Sons

Appellate Division of the Supreme Court of New York

Claims of Van Keuren v. Dwight Divine & Sons

179 A.D. 509, 165 N.Y.S. 1049, 1917 N.Y. App. Div. LEXIS 6588

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 1917

StatusPublished

Cited by7 cases

This text of 179 A.D. 509 (Claims of Van Keuren v. Dwight Divine & Sons) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claims of Van Keuren v. Dwight Divine & Sons, 179 A.D. 509, 165 N.Y.S. 1049, 1917 N.Y. App. Div. LEXIS 6588 (N.Y. Ct. App. 1917).

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Opinions

Cochrane, J.:

The Commission has found that the deceased at the time of his injury had dormant tuberculosis which was aggravated by the injury so that it became acute and caused his death. These findings are supported by the evidence and are conclusive on this court. An injury under the statute is one “ arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.” (Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 3, subd. 7.) It seems to me that there is a fallacy in the reasoning of the opinion of Mr. Justice Woodward, in assuming that it must be shown that death resulted from “ such disease or infection as may naturally and unavoidably result ” from the injury, and in ignoring the other part of the definition of the word “ injury ” that it may arise “ out of and in the course of employment ” irrespective of whether or not any disease or infection results therefrom. The claim here is not that tuberculosis resulted from the injury as would be inferred from the opinion of Mr. Justice Woodward. But the evidence shows quite clearly and the Commission has found that the disease existed .before the injury which accelerated the disease and shortened fife. The injury caused a hemorrhage which so far as the [511]*511evidence discloses the deceased never experienced before or after and there is medical testimony to the effect that such an injury would develop the disease then existing. If an employee has a disease and having the same receives an injury “ arising out of and in the course of employment ” which accelerates the disease and causes his death, such death results from such injury and the right to compensation is secured even though the disease itself may not have resulted from the injury. The award should be affirmed.

All concurred, except Woodward, J., who dissented in an opinion in which Sewell, J., concurred.

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Cochrane, J.:

The Commission has found that the deceased at the time of his injury had dormant tuberculosis which was aggravated by the injury so that it became acute and caused his death. These findings are supported by the evidence and are conclusive on this court. An injury under the statute is one “ arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.” (Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 3, subd. 7.) It seems to me that there is a fallacy in the reasoning of the opinion of Mr. Justice Woodward, in assuming that it must be shown that death resulted from “ such disease or infection as may naturally and unavoidably result ” from the injury, and in ignoring the other part of the definition of the word “ injury ” that it may arise “ out of and in the course of employment ” irrespective of whether or not any disease or infection results therefrom. The claim here is not that tuberculosis resulted from the injury as would be inferred from the opinion of Mr. Justice Woodward. But the evidence shows quite clearly and the Commission has found that the disease existed .before the injury which accelerated the disease and shortened fife. The injury caused a hemorrhage which so far as the [511]*511evidence discloses the deceased never experienced before or after and there is medical testimony to the effect that such an injury would develop the disease then existing. If an employee has a disease and having the same receives an injury “ arising out of and in the course of employment ” which accelerates the disease and causes his death, such death results from such injury and the right to compensation is secured even though the disease itself may not have resulted from the injury. The award should be affirmed.

All concurred, except Woodward, J., who dissented in an opinion in which Sewell, J., concurred.

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Bluebook (online)

179 A.D. 509, 165 N.Y.S. 1049, 1917 N.Y. App. Div. LEXIS 6588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claims-of-van-keuren-v-dwight-divine-sons-nyappdiv-1917.

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