In re the Claim of Levy v. World-Telegram

255 A.D. 237, 7 N.Y.S.2d 546, 1938 N.Y. App. Div. LEXIS 4700

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1938
• Status: Published

Opinions

Hill, P. J.

This is an appeal from two decisions, the first disallowing the claim of Maxwell Levy for disability, the other of his dependents for death benefits. He was injured on November 17, 1932, while carrying newspapers for the employer, a publisher. He never returned to work, and died, following a continuous illness, on March 10, 1936. The decision in the first appeal was in the following language: “ The decision made herein on May 31, 1934, rescinding the previous findings and award dated June 16, 1933, is hereby affirmed, and the disability claim is hereby disallowed on the ground that the said Maxwell Levy initiated the assault upon himself and was the aggressor therein, and said assault did not arise out of and in the course of his employment.”

The appeal on the decision disallowing death benefits is made upon the same grounds. The Board found as “ conclusions of fact ” that Levy Was the aggressor; also that he left a widow and infant child who were dependents.

Many persons were working in the same employment as claimant-decedent. The evidence indicates that ond ,of his coworkers, either in rough horseplay or under a mistaken sense of humor, seized decedent in the buttocks. Levy, believing it was a fellow-employee named McCue, applied to him an opprobrious epithet, whereupon McCue struck decedent with great force and he fell down upon a stone step receiving injuries from which he died. The cause of the blow is shown by the following testimony: “ Q. Now, Mr. McCue, on November 17, 1932, the deceased, Maxwell Levy, called you a very vile name, and of course you resented that? A. Yes. Q. That is the reason you struck him? A.- Yes. Q. You really didn’t intend to injure him. You lost your temper? A. Yes. Q. Because he called you that name, you struck him? A. Yes.

Under the foregoing facts, the decision of the Industrial Board was error and should be reversed. (Matter of Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Carbone v. Loft, 174 App. Div. 901; affd., 219 N. Y. 579; Matter of Humphrey v. Tietjen & Steffin Milk Co., Inc., 235 App. Div. 470; Matter of Field v. Charmette K. F. Co., 245 N. Y. 139.) Words, no matter how coarse and abusive, which tend to excite angry passions never justify a physical assault. (Lee v. Woolsey, 19 Johns. 319.)

The altercation which resulted in Levy’s injury and death was as closely identified with his employment and arose out of it to an extent equal to those passed upon in the Verschleiser and Carbone cases (supra).

The decisions should be reversed and the matter remitted to the Industrial Board, with instructions to make appropriate awards, with costs against the State Industrial Board.

Crapser and Heffernan, JJ., concur; Rhodes and Bliss, JJ., dissent; Bliss, J., with an opinion, in which Rhodes, J., concurs.