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2. WILLFUL INTENTION TO INJURE

Such cases as have reached the courts under this subtitle relate entirely to injury of employees as a result of their own attempts. to injure others. They are presented under the title "Assault by the injured employee," above, pages 120-126.

3. INTOXICATION

The captain of a tugboat was called to his employer's office and discharged for intoxication. He returned to the boat for his effects and lingered there unduly. The engineer saw him start for the shore. He was never seen alive again. Months later, his body was taken from the river near the pier to which the boat had been tied. The Commission awarded death benefits to his widow but the Appellate Division reversed the award, saying “It cannot be inferred that he fell into the water while in the act of leaving the boat, or prior thereto, rather than that after leaving it he fell from the dock while proceeding along its edge in an intoxicated condition": Whalen v. Stanwood Towing Co., S. D. R., vol. 17, p. 626, Aug. 12, 1918; 186 App. Div. 190, Jan. 8, 1919. Full texts of the majority and concurring opinions are in Bulletin 95, pages 350, 351.

In a drowning case similar to Whalen's, intoxication had clearly caused the accident and the Commission denied death benefits to the widow (S. D. R., vol. 16, p. 484). Upon appeal the Appellate Division affirmed the denial saying that all the known facts pointed to intoxication "as the proximate cause of the death." Its opinion in full is as follows:

TROUTON V. SHEEHY ICE Co., 187 App. Div. 818, May 7, 1919. WOODWARD, J.: Joseph E. Trouton, on the 6th of April, 1917, was employed by the M. J. Sheehy Ice Company as a driver of one of its ice wagons. It had a place of business at One Hundred and Thirty-second street, New York, which is located upon a dock adjacent to the Hudson river. On the day in question the decedent took out his wagonload of ice at six o'clock in the morning, and along about two o'clock in the afternoon called up the office of the company and reported that he was not in a condition, owing to drink, to complete his deliveries, and asked for a helper. An assistant was sent out to complete the delivery and bring in the team, and the decedent came back to the office and was sent home. He left the office to get his coat from the wagon, and this is the last seen of him until another employee of the company, coming from a small building on the dock, says he saw a pair of feet just disappearing over the edge of the dock, and later in the day the body

of the decedent was taken from the river. The State Industrial Commission found the facts warranting the making of an award, except that it was held that the decedent came to his death wholly because of his intoxication, and upon this appeal it is urged that this determination of the Commission is not warranted by the evidence.

Section 21 of the Workmen's Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) provides that in the absence of substantial evidence to the contrary, it shall be presumed that "the injury did not result solely from the intoxication of the injured employee while on duty," but in this case there was such substantial evidence. Indeed, the evidence was preponderating that the decedent was staggering drunk at the very time of the accident, and all of the known facts point to this as the proximate cause of the death. It is not, however, the province of this court to consider the facts, except for the purpose of determining questions of law, for, as Mr. Justice HOWARD says in Matter of Rhyner v. Hueber Building Co. (171 App. Div. 56, 58): "It is not well for this court to fall into the habit of discussing the facts, even for the purpose of showing that the findings of fact are reasonable and meet with our approbation. We cannot, except by usurpation, invade the realm of facts, for it was the clear intent of the Legislature that 'the decision of the Commission shall be final as to all questions of fact.' The Commission is the sole judge and the 'final' judge of the facts, and this court is not only forbidden to trespass upon the jurisdiction of the Commission in this field, but, by section 20 of the act, it is circumscribed, even, in its review of questions of law. It was the purpose of the Legislature to create a tribunal to do rough justice-speedy, summary, informal, untechnical." (Matter of Tirre v. Bush Terminal Co., 172 App. Div. 386, 389; Uhl v. Guarantee Construction Co., 174 id. 571, 573; Matter of Dale v. Saunders Bros., 218 N. Y. 59, 63.)

There is evidence in this case supporting the determination of the State Industrial Commission, and the order should be affirmed. Award unanimously affirmed.

The law requires that intoxication shall be the sole cause of the accident. Awarding of compensation in the following three cases turns upon this point.

The Appellate Division has affirmed death benefits in the case of an employee under the influence of liquor who fell while trying to get out of the way of an electric truck. Its opinion is as follows:

RICHARDS V. N. Y. AIR BRAKE Co., 190 App. Div. 78, Dec. 29, 1919.

PER CURIAM: The employer and self-insurer appeals from an award of the State Industrial Commission, and urges that the evidence before the Commission shows that the claimant's intestate was drunk at the time of the accident and is not entitled to the benefits of the provisions of the act. The

*Amd. by Laws of 1915, chap. 167, and Laws of 1917, chap. 705.-[REP.

difficulty with the case is that while there is some hearsay testimony which indicates that the decedent was a drinking man, and that he was actually under the influence of liquor at the time he received his fall, the presumption is "that the injury did not result solely from the intoxication of the injured employee while on duty" (Workmen's Compensation Law, § 21, subd. 4), in the absence of substantial evidence to the contrary. There is very little if any substantial evidence to the contrary, while there is positive and direct evidence that the decedent was not intoxicated to such an extent at least as to make the intoxication the sole cause of the injury.

The decedent, apparently while on his way to that part of the employer's plant where his services were to begin presently, was passing down an alley between rows of machinery, when he was warned of an approaching electric truck from the rear. In stepping aside he appears to have reeled and walked backward upon his heels, falling in such a manner as to produce a fracture of the skull, resulting in death some hours later. While it is highly probable that had he been perfectly sober the accident would not have occurred, the statute provides that in order to forfeit the benefits of the act the injury must result "solely from the intoxication of the injured employee while on duty." (Workmen's Compensation Law, § 10.) No such condition is shown by the evidence; certainly the presumption is not overcome, and the award must be sustained. The injury occurred upon the premises of the employer, apparently while the decedent was about to take up the duties of his employment, and the presumptions of section 21, as well as the adjudications (Murphy v. Ludlum Steel Co., 182 App. Div. 139) support the conclusions of the Commission.

The award should be affirmed. Award unanimously affirmed.

While casting off lines a barge captain fell into the water. The Commission awarded benefits for his death by drowning. Charges of intoxication figured in the case: Conant v. Monk, Bul., vol. 5, p. 23; S. D. R., vol. 20, p. 414, Bul., vol. 4, p. 176, May 13, 1919.

A newly hired employee was being transported upon a truck to the place of work. He had two flasks of whiskey upon his person. Upon his request the driver permitted him to ride on the seat. The truck struck a hole in the pavement. He pitched from the seat under the wheels. Injury to one of his legs necessitated amputation. The Commission awarded him compensation upon recommendation of Commissioner Lyon, who said: HAWORTH V. BROWN, S. D. R., vol. 20, p. 389, Bul., vol. 4, p. 170, Apr. 30, 1919, in part.

I think the evidence rather conclusively shows that Mr. Haworth was somewhat intoxicated at the time of his accident. I am not at all sure that a perfectly sober man would not have retained his seat when the truck upon which Mr. Haworth was riding struck the hole in the pavement, but that is

not the question. We are not to decide whether the claimant was guilty of contributory negligence in becoming intoxicated, for the statute only debars him from compensation in case his injury was due solely to his intoxication. I do not think it can be found on the evidence in this case that the claimant's injury was due solely to his intoxication. I think the fact that the truck struck the hole in the pavement was a very serious contributing cause to the claimant's injury.

An employee lost the use of a hand by accident. The Commission awarded him 244 weeks' compensation. He died at the expiration of eighty-eight weeks. His widow claimed death benefits on the ground that loss of his hand had caused his death. The Commission, however, voting three to two, found that chronic alcoholism during almost two years subsequent to the accident was the real cause: McGurgan v. Burns Bros., S. D. R., vol. 19, p. 434, Bul., vol. 4, p. 91, Jan. 22, 1919.

4. TAKING ONESELF OUT OF THE EMPLOYMENT

Cases of departure from duty, with some implication of blame, however slight, are: the youth who crossed the factory room to say good bye to his fellow employee, Di Salvio v. Menihan Co.; the watchman who went visiting beyond his employer's premises, King v. Standard Oil Co. of N. Y.; the boy who experimented with his employer's machine, Rendino v. Continental Can Co.; the salesman who declared a holiday, Johnston v. Ajax Rubber Co.; and the watchman who through fear entertained intruders instead of ejecting them, Ministrath v. Vought & Co. These cases have been presented above, pages 112-135. A laborer who had been wheeling ashes from his employer's boiler-house crawled into a gas shanty, upon the premises but remote from his place of work, and was there found dead of gas poisoning; the Commission denied death benefits to his father, saying that there had been no occasion for him to go to the place in connection with his work. The Appellate Division sustained the denial unanimously and without opinion: Salas v. Lackawanna Steel Co., S. D. R., vol. 20, p. 368, Mar. 19, 1919; - App. Div. -, Dec. 29, 1919. Employers plead violation of rules or orders as a method of taking self out of employment with little or no success, as the following cases indicate.

5. VIOLATION OF RULES OR ORDERS

On this

Nonenforcement of a rule by an employer abrogates it as concerns denial of compensation because of its violation. point the Appellate Division has said:

ETHERTON V. JOHNSTOWN KNITTING MILL Co., 184 App. Div. 820, Nov. 13, 1918, in part.

Of course, if she had been forbidden to enter the boiler room she was acting in violation of her duty, and therefore, not in the course of her employment. It is true that her employer had long previously promulgated a rule prohibiting the use of the boiler room and the boiler by its employees. However, it was the common practice of employees at the time of the accident to make use of the room as did the claimant. The acquiescence of the employer in this practice was sufficient to abrogate the rule.

A crossing flagman's dependents received death benefits for fatal injury incurred by him while traveling to his place of duty on one of his employer's freight trains despite the railroad's protest that its rules forbade use of his passenger train pass in such wise: Ackerly v. L. I. R. R. Co., S. D. R., vol. 19, p. 533, Bul., vol. 4, p. 151, Apr. 15, 1918.

A mother received benefits on account of death of her son, a sixteen year old boy, by an unwitnessed elevator accident, though his employer company urged that he had taken himself out of his employment by leaving his employer's plant and using the elevator of an adjoining building to transport his employer's goods from one floor level to another (S. D. R., vol. 19, p. 458, Bul., vol. 4, p. 143). The Appellate Division affirmed the award with majority and dissenting opinions which review the evidence in detail. The ruling opinion finds some evidence of a "quasiacquiescence" of the employing corporation in the use by its employees of the elevator that caused the boy's death. The opinions are as follows:

SMITH V. BARTLE MFG. CORP., 189 App. Div. 426, Nov. 21, 1919.

LYON, J.: The State Industrial Commission has found that Merlin Smith was sixteen years of age in December, 1917. He had never before worked out. He was a bundle boy in the employ of the H. J. Bartle Manufacturing Corporation, which was engaged in the manufacture of shelter tents for the United States government in the late war. They occupied the second, third and fourth floors of the building having an entrance on Federal street in the city of Troy, N. Y. It adjoined a building with an entrance on River street. The two buildings were under one ownership and constituted the Tibbitts Block.

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