Claim of Mausert v. Albany Builders Supply Co. ( 1928 )

An injury which does not proceed from an occurrence, a happening, an event, cannot be an accidental injury which is compensable. Thus, a felon which arises from a continued use of a mechanical tool is not a compensable injury. (Matter ofWoodruff v. Howes Construction Co., 228 N.Y. 276, 278.) This holding was made because the "testimony was insufficient to show that the injury was caused by accident." Again, a gangrenous condition of a finger, caused by continued dipping of the member in a poisonous solution, is not compensable. (Matter ofJeffreyes v. Sager Co., 198 App. Div. 446; affd., on opinion below, 233 N.Y. 535.) This holding was made because "the injuries resulted from no occurrence which is referable to any particular moment of time which is definite." A "beat hand," a miner's injury, caused by continued friction, is not compensable because not the result of an accident. (Marshall v. East Holywell CoalCo., Ltd., 7 W.C.C. 19.) If it were not necessary that an injury should proceed from an accident every ailment acquired from a fellow-workman through contagion, every occupational disease, would constitute a compensable "injury." Concededly such is not the case. An "injury" is "an infliction not an affliction." (Christian v. State Conservation Commission, 191 App. Div. 635 at p. 638.) Lead poisoning, due to a gradual process, is not compensable. (Steel v. Cammell, Laird Co., Ltd., 7 W.C.C. 9.) The court so held because of the absence of an accident. That there must be a precedent accident was held to be requisite, because the statute (60 61 Vict. chap. 37, sec. 2) required that a "notice of accident" be given. Our law requires that a "notice of injury" be given. (Workmen's Compensation Law, sec. 18.) However, the same section provides that the giving of the notice may be excused where agents of the employer "in charge of the business in the place where the accident occurred or having immediate supervision of the employee to whom theaccident happened, had knowledge of the accident." Clearly the Legislature, which so provided, considered that, in order that an injury may be compensable, there must have been a precedent accident. If an injury must proceed from an accident then clearly the accident must be caused by the employment, otherwise there is no accidental injury "arising out of and in the course of the employment." For illustration, suppose two employees, A and B, are at work upon an iron girder swinging in the air thirty stories high. A attacks B, who replies with a blow which knocks A from the girder. A falls to the pavement and is killed. Or, suppose that a sailor, working near the rail of a ship, is attacked by an acquaintance, animated, as in Matter ofScholtzhauer v. C. L. Lunch Co. (233 N.Y. 12), by a motive of personal enmity or spite, and as a result of the attack tumbles over the rail into the sea and is drowned. Every one would say that in neither of these cases would death benefits be recoverable by the dependents of the man killed. In each, although the place of work, prescribed by the employment, contributed to the result, so that death rather than a bare injury resulted, nevertheless the accident of falling was caused by a blow and that blow in turn arose through a quarrel wholly disconnected with the employment. So here, death resulted from the fact that the truckman so fell that a wheel of the truck ran over his body. In a sense, the position which his employment required him to occupy contributed to accomplish a result which might not otherwise have followed. Nevertheless, the fall was an accident not shown to have been caused by the employment. Thus, we have a death resulting from an employment, due to an accident not arising out of the employment, and, therefore, not compensable. The case of Matterof Barath v. Arnold Paint Co. (238 N.Y. 625), referred to by Judge O'BRIEN, no doubt supports his conclusions. However, no opinion was written in that case by this court, the Appellate Division (190 App. Div. 886), or the Industrial Board. It was decided in the Appellate Division in the year 1919. In the following year the Appellate Division decided the case of Matterof Minerly v. Kingsbury Construction Co. (191 App. Div. 618). There an employee who was required to work near a river bank, was stricken with a fit, fell into the river and was drowned. It was held that death benefits were not recoverable since the accident did not arise out of the employment. This case was followed inMatter of Neuberger v. Third Ave. Railway Co. (192 App. Div. 781) ; Matter of Joseph v. United Kimono Co. (194 App. Div. 568), and Matter of Kelly v. Nichols (199 App. Div. 870). None of these cases was ever brought to this court by the Attorney-General. In none of them was the case of Matter ofBarath v. Arnold Paint Co. referred to or followed. Thus, for nearly a decade the rule of the Minerly case has been consistently applied in the administration of the Workmen's Compensation Law. During that period of time the Barath case has never been cited or applied. That the rule of the Minerly case has long been the accepted rule for the administration of the Workmen's Compensation Law is shown by a statement contained in a pamphlet circulated by the authority of the Industrial Commissioner himself. The statement reads: "An accidental injury due to disease is not compensable, as when sickness, other than dizziness due to height, causes an employee to fall from a scaffold, against moving machinery or a hot stove, or into water." (Workmen's Compensation Law, issued under the direction of James A. Hamilton, Industrial Commissioner, year 1928, p. 17.) The Appellate Division cases above referred to are cited in support of the rule stated whereas no citation of the Barath case is made. It would seem, therefore, that the principle of stare decisis, far from requiring the enforcement of the rule of the Barath case, in fact would call for enforcement of a rule which is the very antithesis of that rule. In view of the fact that the rule of theMinerly case is better grounded, in point both of reason and authority, I think it should now be given effect. I favor an affirmance.

CARDOZO, Ch. J., POUND, CRANE, ANDREWS and LEHMAN, JJ., concur with O'BRIEN, J.; KELLOGG, J., dissents in opinion.

Ordered accordingly.