The

JOHN M. KELLOGG, P. J. The employer was carrying on a small farm and a small trucking business. He kept two teams. The farm was used principally in furnishing supplies for the farm and teams. farm work, in great part, was done by the employer; the trucks were driven by the employe. Occasionally the employe helped on the farm. and sometimes the employer drove a truck. On the day in question the employe said in the morning he had some errands to do for himself and would not work in the forenoon; he said he would take some shoes over to the shoeshop and have them fixed. He returned about noon and began work in doing chores on the farm. It was then understood that they were to go to the coalyard and get a load of coal, and then to the woods to get a load of wood for the farmhouse.

As they were about ready to start for the coal, the employe said that he ought to have his heavy shoes, which were at the shoemakers, and he was told he could get them, and then meet the employer at the coalyard, unless he overtook him on the way. Instead of going directly to the shoemakers, the employe went to a saloon, and from there started for the postoffice, when he collided with an automobile upon the street and sustained injuries, from the result of which he died in a few days. Evidently he had not visited the shoeshop at all. The farm from which the employer and employe started was about 10 minutes' walk from the shoeshop. The employer drove to the coalyard and was loading the coal alone, when he was informed of the accident. Undoubtedly the heavy shoes were more suitable for work in the woods than the lighter ones: but the employe was upon his own errand when he started for the shoeshop and intended to there change the lighter for the heavier shoes. It cannot be said that he was obeying instructions from his employer; the employer permitted him, but did not direct him, to do the errand. He could have performed his service in the woods for the employer just as well without the heavy shoes; it was to save the employe the inconvenience of getting his feet wet that he was permitted to exchange his shoes. When he went to the saloon, and was going from it to the post office, it was for his own purposes, and he was not then acting within his employment. Culhane v. Economical Garage Co., 188 App. Div. 1, 176 N. Y. Supp. 508.

The award should be reversed, and the claim dismissed. All concur.

GRAFFE et al. v. ART COLOR PRINTING CO. et al. (Supreme Court of New York. Appellate Division. Third Department. May 5, 1920.)

181 New York Supplement, 707.

MASTER AND SERVANT-AWARD OF COMPENSATION FOR DEATH FROM FALL ON OBSTRUCTED FLOOR HELD WARRANTED.

Compensation properly awarded for death of employee of color printing establishment, who was found, on concrete floor with fractured skull, between two rolls of paper, where there were other obstructions over which he might have tripped, in an odor and gas impregnated dark room, by other workmen of night shift returning from recess for lunch.

(For other cases. see Master and Servant, Dec. Dig. § 405[4].)

Appeal from State Industrial Commission

Vol. VI-Comp 6.

Proceeding by Anna Graffe and her minor children under the Workmen's Compensation Act (Consol. Laws, c. 67) for compensation for death of her husband, Felix Graffe, the employee, opposed by the Art Color Printing Company, the employer, and the Etna Life Insurance Company, insurance carrier. Compensation was awarded by the Industrial Commission, and the employer and insurance carrier appeal. Affirmed.

Argued before John M. Kellogg, P. J., and Woodward, Cochrane, Henry T. Kellogg, and Kiley, JJ.

James B. Henney, of New York City, for appellants..

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondents.

KILEY, J. On the 19th of November, 1917, Felix Graffe, husband of the plaintiff, was working, night shift, for the Art Color Printing Company of New York City. The men shut down at 10 p. m. and went out to lunch; Graffe went with them. They returned at about 10:45 p. m., and they saw deceased lying on his back between two rolls of paper. His skull was fractured; the floor where he fell was. concrete; he was taken to the hospital, and died in a few hours. The commission awarded his widow and minor children compensation; later it reversed the award, and still later, by divided vote, reversed its reversal, and reinstated the award.

The appellants contend that there is no evidence of an accident authorizing such award, and cite Matter of Collins v. Brooklyn Gas Co., 171 App. Div. 381, 156 N. Y. Supp. 957, and Matter of Hansen v. Turner Construction Co., 224 N. Y. 331. 120 N. E. 693, as decisive against respondents. In 171 App. Div. 381, 156 N. Y. Supp. 957, the deceased was assistant foreman, and while sweeping the paving near the works he fell, and later died in the hospital. The theory of claimant in that case was that escaping gas caused him to faint. He had said to a fellow employe that "a weak spell must have come to him." The evidence showed absence of any effect from gas, and the theory was abandoned, and the commission found the decedent stumbled and fell, and thus received his injury.

There was no evidence of any obstruction. The Hansen Case, 224 N. Y. 331, 120 N. E, 693, is in many respects like this case; but in that case there was total absence of evidence of anything, in the nature of obstruction, of pillars or posts, near him, that should cause him to fall. In the present case several facts, connected with the employment, of conditions that might have caused Graffe to fall and fracture his skull, appear: The concrete floor, grease upon the floor about the press at which he worked, rolls of paper three feet in diameter lying lengthwise on the concrete, with metal bar extending 12 to 14 inches out of either end, over which he could trip; absence of light, except one light 30 feet away, dark around the press where he worked and was found; the presence of noxious, enervating, and pernicious odor and gases; and close and tepid atmosphere, kept so continuously and purposely on account of the effect fresh air or moving draughts had upon the colors that were being stamped upon the paper-all of which was connected with the employment and business, and which the evidence shows might have been the cause of the fall of the decedent. We think the decision in Shludzinski v. Standard Oil Co., 176 App. Div. 87, 162 N. Y. Supp. 225, sustains the award of the Commission in the case at bar.

The award should be affirmed. All concur.

INTINI ET UX. v. STITTVILLE CANNING CO. et al.

(Supreme Court of New York, Appellate Division, Third Department. March 11, 1920.)

181 New York Supplement, 890.

MASTER AND SERVANT-FATHER AND MOTHER NOT BOTH ENTITLED TO COMPENSATION FOR DEATH.

The father and mother of a deceased employee held not both entitled to compensation for his death as dependents.

(For other cases, see Master and Servant, Dec. Dig. § 323.)

Appeal from State Industrial Commission.

Proceeding by Pietro Intini and wife, by the Royal Italian Consul, for compensation under the Workmen's Compensation Act (Consol. Laws, c. 67) for the death of their son, Nicolo Intini, opposed by the Stittville Canning Company, employer, and the Utica Mutual Insurance Company, insurer. Compensation was awarded, and defendants appeal. Affirmed in part, and reversed in part.",

Argued before John M. Kellogg, P. J., and Woodward, Cochrane, Henry T. Kellogg, and Kiley, JJ.

Hart, Stevenson, Walton & Senior, of Utica, for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, and Bernard L. Shientag, of New York City, of counsel), for State Industrial Commission.

KILEY, J. In this case the award was made to the father and mother, as dependents of the deceased, $2.885 each, weekly. In the Matter of Sharpeletzos v. Counes & Raptis Corporation (recently decided in the Court of Appeals) 228 N. Y. 46, 126 N. E. 268, such award is disapproved-viz. cannot be made to both. Under the authority of that case, the award to the father, Pietro Intini, of $2.885 weekly, should be affirmed, and the award to the mother reversed, and the claim as to her dismissed. All concur.

MINERLY v. KINGSBURY CONST. CO. et al.

(New York Supreme Court, Appellate Division, Third Department. May 5, 1920..)

181 New York Supplement 901.

1. MASTER AND SERVANT-CAUSE OF DEATH CANNOT BE PRESUMED UNDER COMPENSATION LAW.

In a proceeding under- Workmen's Compensation Law to obtain compensation for the death of servant, the cause of accident cannot be presumed, but must be established.

(For other cases, see Master and Servant, Dec. Dig. § 403.)

2. MASTER AND SERVANT-DEATH BY DROWNING DID NOT "ARISE OUT OF EMPLOYMENT," UNDER COMPENSATION LAW.

In a proceeding under the Workmen's Compensation Law to obtain compensation for the death of a servant, held, that servant, subject to fits. who was drowned in 5 feet of water, did not meet his death in an accident arising out of the employment; the only reasonable inference being that he was overcome by an attack of his constitutional malady.

(For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

Appeal from State Industrial Commission.

Proceeding by Charlotte Minerly under the Workmen's Compensation Law to recover compensation for the death of Henry Minerly, opposed by the Kingsbury Construction Company, employer, and the Travelers' Insurance Company, insurance carrier. There was an award of compensation, and the employer and insurance carrier appeal. Award reversed, and claim dismissed.

Argued before John M. Kellogg, P. J., and Woodward, Cochrane, Henry T. Kellogg, and Kiley, JJ.

Amos H. Stephens, of New York City (E. C. Sherwood and Willjam B. Davis, both of New York City, of counsel), for appellants.

Charles D. Newton, Atty. Gen .(E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

COCHRANE, J. The question in this case is whether the accident arose out of the employment. The deceased employe was engaged with others in leveling a pile of stones which had been thrown up near a river bank by a dredge at Mechanicville, N. Y. While so working, he was stricken with a fit, to which malady he was subject. He came out of the fit and resumed his usual work. A short time thereafter he proceeded up the river bank for a purpose incidental to his employment. Not returning, his fellow employes instituted a search for him, and discovered his dead body in the river in a depth of 5 feet of water. His death was caused by drowning. No feature or incident of his work required him to enter the water at that place. His body, when found, was "all curled up" in about the same condition as it was when he had the fit shortly before, at which time he was also described as "lying all curled up." The place of his death was 100 or 150 feet from where his fellow employes were engaged in their work. On these facts the commission by a closely divided vote has found that the accident arose out of the employment.

[1, 2] The cause of the accident cannot be presumed, but must be established. Matter of Eldridge v. Endicott. Johnson & Co., 228 N. Y. 21, 126 N. E. 254: Matter of Collins v. Brooklyn Union Gas Co., 171 App. Div. 381, 156 N. Y. Supp. 957: Matter of White v. American Society for Prevention of Cruelty to Animals; 191 App. Div. 6, 180 N. Y. Supp. 867; Matter of Nestor v. Pabst Brewing Co., 191 App. Div. 312, 181 N. Y. Supp. 477: Matter of Woodruff v. R. H. Howes Construction Co.. 228 N. Y. 276, 127 N. E. Even if the presumption of section 21 of the Workmen's Compensation Law (Consol. Laws. c. 67) should apply, the circumstances surrounding the accident would seem to constitute 'substantial evidence" sufficient to overcome the presumption. It seems unreasonable to infer that a well and able-bodied man could have drowned under the circumstances here existing.

As stated above, there was no occasion for the deceased to enter the water. It is not suggested that there was a dock or embankment, from which he could have fallen into water of any considerable depth. An ordinary man would not be submerged in water 5 feet deep, and would experience no difficulty in reaching the shore, only a few feet distant. No outcry or alarm was heard by the fellow workmen of the deceased, who were within easy hailing distance. The only reasonable inference is that he was overcome by another attack of his constitutional malády. and because thereof fell from the river bank into the water. This theory harmonizes with all the evidence in the case, and is the only reasonable explanation of the accident. The case is similar in this respect to Matter of Hansen v. Turner Construction Co., 224 N. Y. 331, 120 N. E. 693. If there were other circumstances bearing favorably on the claim, it was incumbent on the claimant to prove them. On the evidence produced, the accident did not arise "out of" the employment.

The award should be reversed, and the claim dismissed. All concur

NESTOR v. PABST BREWING CO. et al.

(Supreme Court of New York, Appellate Division, Third Department. March 11, 1920.)

181 New York Supplement 477.

3. MASTER AND SERVANT-AWARD UNDER COMPENSATION ACT MUST REST ON LEGAL FOUNDATION, NOT PRESUMPTION.

A finding of the Industrial Commission in favor of claimant, under the Workmen's Compensaton Act, as to the cause of an injury to a workman, must rest on legal foundation, and not on presumption.

(For other cases, see Master and Servant, Dec. Dig. § 405[1].)

4. MASTER AND SERVANT-FINDING THAT DEATH WAS CAUSED BY DISEASE INCREASED BY ACCIDENT WITHIN COMPENSATION ACT HELD NOT WARRANTED.

In a proceeding under the Workmen's Compensation Act, a finding. of the Industrial Commission that a deceased employee, who never resumed work after an injury and died after a fall in the street, died as a result of valvular heart disease, which condition was aggravated by previous injury, held not warranted.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].) John M. Kellogg, P. J,. dissenting.

Appeal from State Industrial Commission.

In the matter of the claim of Delia Nestor, under the Workmen's Compensaton Act, for he death of Andrew Nestor, against the Pabst Brewing Company, employer, and the Standard Accident Insurance Company, insurance carrier. From an award of the Industrial Commission for claimant, the employer and insurance carrier appeal. Award reversed, and matter remitted to Commission.