SUPREME COURT OF NEW JERSEY. DIXON ANDREWS.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -"ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT." On August 15, 1916, the husband of the petitioner was a farm hand, whose particular employment on that day was to make a trip to Philadelphia with a truck wagon drawn by a team of mules. He left the farm between 5 and 6 o'clock in the afternoon, and at 2 o'clock the next morning was found dead sitting on the seat of the truck with his body crushed between the seat and the overhanging roof of a shed under which the mules were standing. From the circumstantial details in evidence, the judge of the pleas determined that the decedent's death was caused by an accident and that such accident arose out of and in the course of his employment. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) Certiorari to Court of Common Pleas, Burlington County. Action by Margaret H. Dixon against Clayton L. Andrews for compensation for the death of a deceased employee. From a judgment for plaintiff, defendant prosecutes certiorari. Affirmed. Argued November term, 1917, before Garrison, Bergen, and Black, JJ. Kaighn & Wolverton, of Camden, for prosecutor. GARRISON, J. The court was justified in finding that the injury of which the decedent died was not intentionally self-inflicted or the result of his intoxication. This left two hypotheses upon which to account for the manner in which such injury was caused, viz., that the decedent was asleep when the mules went under the low roof, or that he was negligent if he was awake. The latter hypothesis need not be considered, inasmuch as negligence is no bar to the recovery of compensation. The main contention is that the injury was not accidental if the decedent was asleep; the argument being that sleep is not an accident. The act of going to sleep may or may not be an accident, depending upon whether or not it was designed; but the failure to wake up in time to avert a catastrophe is an accident in every sense of the word. If the going to sleep was not designed, it was accidental, if it was designed, it was negligence. In any event, the undesigned failure of the deceased to wake up until he was crushed between the seat and the low roof * Decision rendered, March 4, 1918. 103 Atl. Rep. 410. Syllabus by the Court. was purely "accidental" in the sense in which that term is constantly and correctly employed. Falling out of bed asleep is an accident even if the sole design in going to bed was to go to sleep. The sole case in which falling asleep is clearly not within an employment is that of a watchman or similar service where the servant is employed expressly to stay awake. In such case the failure of the servant to do the one thing he was specially employed to do is in effect an abandonment of his employment. Such seems to have been the recent case of Gifford v. Patterson, 222 N. Y. 4, 117 N. E. 946. The judgment of the Burlington county common pleas is affirmed, with costs. COURT OF APPEALS OF NEW YORK. ALPERT J. C. & W. E. POWERS et al.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -ACCIDENT IN COURSE OF EMPLOYMENT—EVIDENCE. Finding of Industrial Commission that injuries to claimant were accidental and arose out of and in the course of his employment held without facts or evidence to support it. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— BURDEN OF PROOF-HERNIA. As "hernia" is a disease arising out of natural causes as well as from accident, it was incumbent on claimant to offer some evidence that his employment caused or could have caused the injury. (For other cases, see Master and Servant, Dec. Dig. § 403.) 3. MASTER AND SERVANT-ABSENCE OF FINDING BY INDUSTRIAL BOARD-PRESUMPTION. In the absence of a contrary finding of fact, it will be presumed on appeal that the lifting of bundles of paper weighing from 40 to 60 pounds by claimant did not cause hernia. (For other cases, see Master and Servant, Dec. Dig. § 417[5].) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION— DECISION NOT SUPPORTED BY FINDING-REMAND. Although the commission found that claimant while engaged in lifting a bundle of paper sustained a hernia, and that injury was accidental and arose out of and in the course of employment, the claim will be sent back for a rehearing; there being no finding that hernia was caused by lifting paper or by strain due to performance of work. (For other cases, see Master and Servant, Dec. Dig. § 417[9].) * Decision rendered, March 12, 1918. 119 N. E. Rep. 229. Appeal from Supreme Court, Appellate Division, Third Department. Proceeding under the Workmen's Compensation Law by Leo Alpert against J. C. & W. E. Powers, employers, and the American Mutual Compensation Insurance Company, insurance carrier. From an order of the Appellate Division (167 N. Y. Supp. 385.) affirming award of the Industrial Commission in favor of claimant, the employers appeal. Reversed, and claim sent back to Commission for rehearing. Jeremiah F. Connor, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondents. CRANE, J. While doing his work, the claimant became sick, and upon examination it was discovered that he had an inguinal hernia. The commission, after three hearings, has determined that it arose out of and in the course of his employment, and their determination has been affirmed in the Appellate Division by a divided court. It is pressed upon our attention that there is no evidence whatever to sustain the finding that there was an accidental injury within the terms of the Workmen's Compensation Law (Consol. Laws, c. 67); that, at most, the evidence shows that the claimant, while performing his usual work without accident or unusual strain, sustained or developed a hernia. Such facts, it is said, do not bring him within the benefits of the act. J. C. & W. E. Powers were engaged in the printing and lithographing business with a plant at No. 65 Duane street, in New York City. Leo Alpert, a young man 25 years of age, residing in Brooklyn, had been at work for this firm about 10 weeks prior to the 10th day of April, 1917. He was a cylinder feeder, and had been such for 7 years. His work for the present employer required him to lift a bundle of paper weighing from 40 to 60 pounds from the floor to his shoulder and carry it up two or three steps to his press. This he had done about 20 times a day during the previous 7 years. On the morning of the day mentioned he felt pains in his stomach, became sick, and went home about 4 o'clock in the afternoon. It was discovered later by Dr. Charles F. Fisher that Alpert was ruptured on the right side. In the statement of his claim made April 14, 1917, Alpert gives this history of the occurrence: "I was doing my usual work on the press I always work on, and about 11 a. m. I began to have cramps in my stomach, but I kept to work until 12 o'clock; then I took a little rest, laying down in the shop at my lunch hour. I started in again at 12:30, and worked until 3:30, when my cramps were so bad I had to go home, and saw a doctor the same evening. He said I had a rupture. On April 10th, the day the cramps came on me, I was handling paper of the same size and weight as usual and in the usual way; I did not have anything like an accident happen to me. I did not (sic) any extra strain. I can't account for why the rupture should have come." In his testimony on the first hearing he says that he was doing the work the same as he had done it every day, and was not in any different position when he was lifting the paper. At the second hearing, in reply to a question put by Commissioner Mitchell, he stated that he did not feel any unusual strain; and on the third hearing he testified as follows: to me. "I didn't have an accident * * * While I was lifting it up I felt pain, and it was like electric shock, more than anything * I went upstairs and felt kind of weak, cramped up like. That is, when I was walking upstairs it hurted me. When I got up there I felt kind of dizzy, and sat there for a minute before I rolled sheets out. * * * I figured it was cramps at first; probably I ate something. I really didn't remember; probably my stomach was out of order. When I started walking around again I got these little pains. I thought it would be best before I went to the doctor; I took a physic. I thought that would help me out." While doing work which he had done regularly every day for seven years, the employee felt a pain which indicated to his physician, upon examination, that he had sustained a rupture. There was no blow or unusual exertion, nothing out of the ordinary to suggest to the employee that anything that he then did caused the pain. He thought it was due to a disordered stomach, and took a physic. [1] At the first hearing, May 7, 1917, the commission found that the claimant "severely strained himself." Subsequently the counsel to the commission notified the members thereof that there was no evidence to sustain such a finding, and it was stricken out at the next hearing, had on July 2, 1917. A further hearing was had on August 3, 1917, after which the commission made its finding of fact to the effect that Alpert while engaged in lifting a bundle of paper sustained a hernia. There is no finding that this hernia was caused by the lifting of paper, or by any strain, or was in any way due to the work that he was performing. The lapse between cause and effect is as apparent by these findings as if the commission had said that, while the claimant was engaged in lifting a bundle of paper, he sustained a mental collapse, a nervous breakdown, or an attack of pneumonia. The subsequent finding that the injuries were accidental and arose out of and in the course of his employment are conclusions without facts or evidence to support them. [2] No medical evidence was given before the commission as to the nature or cause of hernia, and no attempt was made to prove that the lifting in this case could have produced the rupture which later developed. Hernia is a disease arising out of natural causes as well as from accident, and it was therefore incumbent upon the claimant to offer some evidence that his employment caused or could have caused the injury. [3, 4] It will be noted that the finding by the commission that the employee strained himself in lifting these bundles was stricken out, and not subsequently included in its final determination. If there were no strain upon the parts injured, and the lifting did not cause the hernia, as we must assume in the absence of a finding of such fact, it is difficult to understand how the rupture arose out of an in the course of the employment. As was said in Madden's Case, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000: * "It [the act] does not afford compensation for injuries or misfortunes, which merely are contemporaneous or coincident with the employment, or collateral to it. Not every diseased person suffering a misfortune while at work for a subscriber is entitled to compensation. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. * * The direct connection between the personal injury as a result and the employment as its proximate cause must be proved by facts before the right to compensation springs into being." And in Clover, Clayton & Co. v. Hughes (House of Lords, 1910) 3 B. W. C. C. 275, it was said of a man who was injured while doing his work: * * * "If that occurred when he was lifting a weight, it would be properly described as an accident. But it does not establish that the accident was one 'arising out of the employment.' * * * It may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working." In that case there was a direct finding that the strain in fact caused the rupture. Such a finding is lacking in the one under consideration. For these reasons the order of the Appellate Division must be reversed, and the claim sent back to the commission for a rehearing. We refrain from expressing any opinion at this time as to whether the words "accidental injuries" include internal injuries of an accidental nature caused by the usual and customary employment. It will be time to deal with this question when it arises. The order should be reversed, and rehearing ordered; costs to abide event. Hiscock, C. J., and Collin, Cuddeback, Pound, and Andrews, JJ., concur. Cardozo, J., not voting. Order reversed, etc. |