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App. Div.]

Third Department, November, 1920.

FRANCES E. CLOUGH, as Executrix, etc., of ENOS M. CLOUGH, Deceased, Appellant, v. CLARENCE R. GARDINER, Defendant, Impleaded with ELIZABETH M. GARDINER, as Administratrix, etc., Respondent.- Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice Kapper at Special Term. [Reported in 111 Misc. Rep. 244.] Jenks, P. J. Rich, Putnam, Blackmar and Kelly, JJ., concur.

GEORGE S. MAWHINNEY, Respondent, v. MEYER FREUND, Appellant.— Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ., concur.

MARIE RASMUSSEN, as Administratrix, etc., of JACOB RASMUSSEN, Deceased, Respondent, v. MICHAEL KRAUSE and LOUIS KRAUSE, Copartners, etc., Appellants, and Another, Defendant.- Judgment and order unanimously affirmed, with costs. No opinion. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

JACOB ROTHENBERG, Respondent, v. BELLE CASMAN and GLADYS SPARAGO, Appellants. Judgment unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ.

THIRD DEPARTMENT, NOVEMBER, 1920.

Before STATE INDUSTRIAL COMMISSION, Respondent.

In the Matter of the Claim of ROSALIA LOMASCOLO, Respondent, for Compensation under the Workmen's Compensation Law for the Death of GUISEPPE LOMASCOLO, v. WALTER RYAN, Employer, and the NEW AMSTERDAM CASUALTY COMPANY, Insurance Carrier, Appellants.

Workmen's Compensation Law personal injuries — disease.

Appeal from an award of the State Industrial Commission made January 12, 1920, and entered in the office of said Commission.

Award affirmed. All concur, except Woodward, J., dissenting with an opinion.

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WOODWARD, J. (dissenting): The learned Deputy Attorney-General says in his brief that while the weight of medical opinion seems to be adverse to the claim of death from injuries received by the deceased workman, the Commission adopted the opinion of Dr. Lewy, the chief medical examiner, that the injuries were the contributing cause," and upon this foundation this award rests. It is impossible to read this record without arriving at the conclusion that the claimant's intestate died from the results of syphilis contracted years before this accident. There is absolutely no evidence whatever to connect the syphilitic infection, the conceded cause of death, with the two accidents which appear to have been combined for the purpose of reaching a general result. The first accident was a fall from a scaffolding, resulting in no breaking of the skin, so far as appears, and the intestate had been at work for a considerable time, when, as he described it, he was lifting bags of sand and lost his balance, and wrenched his back. But there is nothing to show that there was any contusion; that there was any oppor

Third Department, November, 1920.

[Vol. 194. tunity for an infection growing out of this accident. He simply had syphilis and was injured, but the disease did not “naturally and unavoidably result therefrom." (Workmen's Compensation Law, § 3, subd. 7.)* The opinion of Dr. Lewy that these injuries "contributed to bring about the condition resulting in the general paralysis," which we find only in the opinion of one of the Commissioners, does not satisfy the requirements of the definition of personal injuries as above quoted from the statute. The adequate cause of death is to be found in the disease; the claimant's intestate concededly was infected with syphilis that was the undoubted cause of his death — and there is no evidence to connect this infection with either of the accidents which befell him. Assuming the most that can possibly be inferred from the evidence, the accident merely contributed to the hastening of the death of the intestate; it did not produce the death. No one claims that the slight injury was the proximate cause of death; that it could have resulted in the death of one who was not already far advanced in the disease which resulted in general paralysis. The testimony of the family physician that he does not believe in the Wasserman test, because the patient failed to respond to treatments, cannot be dignified into evidence of a causal relation between the accidents and the death of the intestate. The whole theory of the Workmen's Compensation Law is that it makes a special dispensation for those employed in hazardous occupations. It does not attempt to compensate for occupational † or other diseases; its whole purpose is to deal with personal injuries, which mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom (§ 3, subd. 7), and this, of course, excludes pre-existing syphilis or other disease. It is the injury produced by accidental means that is to be compensated. The intestate might have been entitled to some compensation for the second injury; he had already been compensated for the first. But he could only have been compensated for the actual injury, not for the death. Whatever disease or infection naturally and unavoidably " resulted from the injury was a proper charge against the industry under the theory of the statute; but because some sophistical physician can be found to suggest that the accident, trivial in itself, had an activating influence upon the already existing disease does not bring the case within the letter or the spirit of the statute; it has no relation to the hazards of the occupation and was not cause of death. It is clear that the accident had no relation whatever to the death. No one dares to contend that it was the proximate cause of death; the most that is suggested is that it contributed to bring about the condition resulting in the general paralysis," and this is so clearly without the provisions of the statute that it ought not to receive the approbation of this court. The award should be reversed and the case dismissed.

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

† See Laws of 1920, chap. 538, adding to Workmen's Compensation Law, art. 2-A, which is not retroactive. (See Laws of 1920, chap. 538, § 2.) [REP.

App. Div.]

Third Department, November, 1920.

Before STATE INDUSTRIAL COMMISSION, Respondent.

In the Matter of the Claim of FRANCES SCHULTZ and Minor Dependents, Respondents, for Compensation under the Workmen's Compensation Law, for the Death of HERMAN G. SCHULTZ, v. CHAMPION WELDING AND MANUFACTURING COMPANY, Employer, and THE TRAVELERS INSURANCE COMPANY, Insurance Carrier, Appellants.

Workmen's Compensation Law -— injury arising out of and in course of employment - use of employer's automobile by employee.

Appeal from an award of the State Industrial Commission.

Award affirmed. All concur, except Woodward, J., dissenting with a memorandum in which Cochrane, J., concurs.

WOODWARD, J. (dissenting): The undisputed facts in this case are that claimant's decedent was employed by the Champion Welding and Manufacturing Company of Buffalo; that on the evening previous to the accident the decedent was directed to go out and look into a job of welding which was to be done. The employer permitted the decedent to make use of a Ford car to reach the point, and allowed the decedent to take the car home with him, returning it the next morning. The decedent, in going to his work on the following morning, and while on a public highway, collided with another car and received injuries from which he died. The accident occurred at about seven-fifteen in the morning, while the employment in which he was engaged did not commence until seven-thirty. The Ford car was not being used in the master's employment at the time of the accident; no service for the employer was being performed. It is entirely evident from the record that the employee, who was a son-in-law of the real employer, was permitted to use the car for his own purposes, and by no fair construction may it be said that the injury was one arising out of and in the course of employment." (Matter of Heitz v. Ruppert, 218 N. Y. 148, 151, 152.) It was not a risk incident to the business of the employer any more than would have been the case if the decedent had owned the Ford car and had used it to reach the place of employment; it was not a burden which could properly be charged against the industry in which the decedent was generally employed, but in which he was not engaged at the time of the accident. The award appealed from should be reversed. Cochrane, J., concurs.

Before STATE INDUSTRIAL COMMISSION, Respondent.

In the Matter of the Claim of JESSIE CARTER, Respondent, for Compensation under the Workmen's Compensation Law, v. GORDINER & WARRING COMPANY, Employer, and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Insurance Carrier, Appellants.

Workmen's Compensation Law ·

- injury arising out of and in course of employment - falling on sidewalk in front of factory.

Appeal from an award of the State Industrial Commission, made January 29, 1920, and entered in the office of said Commission.

Third Department, November, 1920.

[Vol. 194. Award affirmed. All concur, except Woodward, J., dissenting, with an opinion, and Cochrane, J., dissenting on the ground that the accident did not arise out of or in the course of employment, under the authority of Matter of Di Salvio v. Menihan Co. (225 N. Y. 123).

WOODWARD, J. (dissenting): The claimant, at a hearing in July, 1919, testified that on the 26th day of March, 1919, she was brought to the employer's factory in Amsterdam by her husband; that she got out of the wagon and started to cross the sidewalk to the factory door; that she turned to ask her husband a question and that in doing so she caught her heel in a crack in the sidewalk and fell; that she threw out her hand and in falling produced a fracture of the wrist. She was asked by the Commissioner where she was at the time of the accident and she answered, "I was three or four feet from the mill door on the street." She said the mill was on Yeoman street, Amsterdam; that she was "on the public sidewalk but in front of the mill property." There was an intimation that there could be no award unless it was shown that the accident occurred upon the premises of the employer, and subsequently a photograph of the location of the accident was put in evidence and the claimant marked a spot as the place where she fell, and the award is apparently based upon her corrected testimony in connection with the photograph. A diagram which the claimant sent to the insurance carrier, and which is in evidence, is entirely in harmony with her original testimony. It shows that she got out at the curb line; that she fell almost immediately in front of where she alighted from the wagon, and that this was entirely upon the sidewalk and a considerable distance from the factory door. But the photograph in evidence shows a very common situation of a factory building abutting upon the sidewalk, with covered stairways intruding upon the highway, and the point which the claimant marks upon the photograph is a considerable distance away from one of these covered passageways, and apparently nearly in front of the door. But the sidewalk is built up to the wall of the building, and, so far as may be judged from a photograph introduced by the claimant, is an ordinary stone or cement walk, upon which the defendant has intruded with two covered doorways leading into the building. The point which she marks is upon this sidewalk, and there is no evidence to show that it is not, what it appears to be, an integral part of the highway. But whether this was so or not, it is entirely obvious that the accident was not one "arising out of and in the course of " her employment. She was performing no service for the employer; she was on her way to such employment and she turned to ask her husband a question relating to herself, and while so turning she met with such an accident as might happen to any one of us. It had no relation to the employment. There is evidence that she arrived at seven o'clock in the morning at the point of the accident, but there is no evidence that the employment started at that hour, and if it did she had not entered upon such employment. It seems to me that the record is barren of any evidence to show that this accident happened in connection with any employment. The claimant met with an accident on the street while on her way to her employment we may assume, but she was not engaged in the employment

App. Div.]

Third Department, November, 1920.

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at the time; she had not reached a point where her employment began, and, so far as appears, where the employer was in any degree responsible for the happening of the accident even under the liberal rules of the Workmen's Compensation Law. The accident must be one arising out of and in the course of employment; " the provisions of the statute are conjunctive and both must concur.' An accident on the way to work, and before the employment has commenced, which is in no manner due to anything connected with the operation or maintenance of the plant, or the place in which the industry is carried on, is not within the letter or the spirit of the statute. The award appealed from should be reversed.

Before STATE INDUSTRIAL COMMISSION, Respondent.

In the Matter of the Claim of AUGUSTUS JORDAN, Respondent, for Compensation under the Workmen's Compensation Law, v. DECORATIVE COMPANY, Employer, and THE TRAVELERS INSURANCE COMPANY, Insurance Carrier, Appellants.

Workmen's Compensation Law

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hernia injury arising out of improper use of truss.

Appeal from an award of the State Industrial Commission entered in the office of said Commission October 9, 1919.

Award affirmed. All concur, except Woodward, J., dissenting, with an opinion in which Kiley, J., concurs.

WOODWARD, J. (dissenting): The State Industrial Commission has found as conclusions of fact that on the 19th of April, 1919, the claimant was employed by the Decorative Company of Saratoga Springs; that on that day he was working at the employer's plant and " while engaged in the regular course of his employment, assisting a fellow-servant in moving a box of clay which weighed about seven hundred pounds from a platform to a truck, and while making an extraordinary effort to move the same, he strained his left side, and the strain produced a left inguinal hernia," etc. The claimant says nothing about having made any extraordinary effort at the time of the alleged accident; he says the box he was lifting was of the ordinary size and weight, might have been a little heavier; that he had lifted them many times. On cross-examination he was asked: 'Did you slip or anything when you lifted it?" And to this he answered yes; but the question obviously did not mean much to this claimant, or to any one else. On his direct examination he was asked: "Now, what happened when you were lifting it from the scales to the truck?" He answered, "I heard a snap." He was asked, "You heard a snap or felt it?" and he replied, "Felt it." There is no suggestion of anything out of the ordinary happening in his employment; he was doing the things he had been doing for a month. He says he did not fall; and while he answered the vague question on cross-examination in the affirmative, it is obvious that he intended nothing more than to reiterate

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*See Workmen's Compensation Law, § 10; Id. § 3, subd. 7, as amd. by Laws of 1917, chap. 705.— [REP.

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