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COURT OF APPEALS OF NEW YORK.

ANDERSON
ຍ.

JOHNSON LIGHTERAGE CO. et al.

APPEAL OF STATE INDUSTRIAL COMMISSION.*

ADMIRALTY-INJURY TO EMPLOYEE.

A longshoreman while engaged in loading a vessel in navigable waters for his employer having a contract there for was performing a maritime contract, and the Industrial Commission would have no jurisdiction of his claim for compensation for injuries received in such work. (For other cases, see Admiralty, Dec. Dig. § 20.)

Cuddeback, Hogan, and Cardozo, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department. Claim under the Workmen's Compensation Law (Consol. Laws, c. 67), by Louis Anderson against the Johnson Lighterage Company, employer, and the Employers Liability Assurance Corporation, Limited, insurance carrier. From an order of the Appellate Division (182 App. Div. 152, 169 N. Y. Supp. 645) reversing a determination of the State Industrial Commission and dismissing the claim, the State Industrial Commission appeals. Affirmed.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for appellant.

Bertrand L. Pettigrew, of New York City, for respondents.

MCLAUGHLIN, J. The claimant, at the time he was injured, was a longshoreman in the employ of the Johnson Lighterage Company, which had a contract to load a vessel in navigable waters. While thus engaged he sustained an injury by slipping on a pier from which the cargo was being taken. He made a claim under the Workmen's Compensation Law, and the Industrial Commission allowed the same. Its award was reversed by the Appellate Division, the claim dismissed, and the commission appeals to this court.

In my opinion, for the reasons stated by me in Matter of Doey v. Howland Co., Inc., 120 N. E. 53, decided herewith, Anderson, at the time he was injured, was engaged in performing a maritime contract. The Industrial Commission therefore had no jurisdiction to make the award; it was properly vacated by the Appellate Division, and the claim dismissed.

The order of the Appellate Division therefore should be affirmed, with costs against the State Industrial Commission. Hiscock, C. J., and Chase and Collin, JJ., concur. Cuddeback, Hogan, and Cardozo, JJ., dissent.

Order affirmed.

* Decision rendered, June 4, 1918. 120 N. E. Rep. 55.

COURT OF APPEALS OF NEW YORK.

KEATOR ET AL.

บ.

ROCK PLASTER MFG. CO. et al.

APPEAL OF STATE INDUSTRIAL COMMISSION.*

ADMIRALTY-INJURY TO EMPLOYEE.

An employee of a plaster manufacturing company while engaged in the performance of his duties in unloading rock from a vessel lying alongside a pier in East River was engaged in the performance of a maritime contract, so that Industrial Commission had no jurisdiction of his claim for injuries received in such work.

(For other cases, see Admiralty, Dec. Dig. § 20.) Cuddeback, Hogan, and Cardozo, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department. Claim by Grace Keator and another under Workmen's Compensation Law for the death of Alexander Keator, opposed by the Rock Plaster Manufacturing Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. From an order of the Appellate Division (182 App. Div. 152, 169 N. Y. Supp. 645) reversing a determination of the State Industrial Commission, the Commission appeals. Affirmed.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for appellant.

Bertrand L. Pettigrew, of New York City, for respondents.

MCLAUGHLIN, J. On the 12th of June. 1917, Alexander Keator was in the employ of the Rock Plaster Manufacturing Company, which had a place of business at 150th street and East River, New York City. As a necessary incident to the carrying on of such business, rock was unloaded from vessels lying alongside a pier in the East River, and dumped on the dock near the plant. Keator had charge of the unloading of such rock. On the day mentioned, while actually engaged in the performance of his duties in unloading a vessel, then in navigable waters, he was struck by a load of rock being hoisted from the vessel to the dock, and killed.

I am of the opinion, for the reasons stated by me in Matter of Doey v. Howland Co., Inc., 120 N. E. 53, decided herewith, that Keator, at the time he was killed, was engaged in the performance of a maritime contract.

The order appealed from therefore should be affirmed, with costs against the State Industrial Commission.

* Decision rendered, June 4, 1918. 120 N. E. Rep. 56.

Hiscock, C. J., and Chase and Collin, JJ., concur. Cuddeback, Hogan, and Cardozo, JJ., dissent.

Order affirmed.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD DEPARTMENT.

CAMPBELL

V.

CLAUSEN FLANAGAN BREWERY ET AL.

IN RE BREWERS' MUT. INDEMNITY INS. CO.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION- HEAT PROSTRATION—“ARISING OUT OF EMPLOYMENT.” Death of employee, caused by heat prostration, arose out of employment only if employee, because of particular circumstances under which he was required to work, was subjected to a special hazard from the heat, not risked by public in general.

(For other cases, see Master and Servant, Dec. Dig. § 372.)

2. MASTER AND

SERVANT-REVIEW-INFERENCES FROM

UNDISPUTED FACTS.

Where facts, in workmen's compensation proceeding, are undisputed, the inference drawn therefrom wi'l not be reviewed on appeal. (For other cases, see Master and Servant, Dec. Dig. § 417 [7].)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATIONQUESTION OF FACT.

Whether an employee, who died from heat prostration, was specially affected by the severity of heat by reason of his employment, is a question of fact for commission's determination.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

4. MASTER AND SERVANT-WORKMEN'S

COMPENSATION

PROCEEDING—FVIDENCE--SUFFICIENCY-INJURY ARIS

ING OUT OF EMPLOYMΕΝΤ.

In workmen's compensation proceeding for death of employee, due to heat prostration, evidence held sufficient to justify inference drawn therefrom by commission that employee had not been specially affected by severity of heat by reason of his employment.

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

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Rose Campbell for compensation for the death of Andrew Campbell, opposed by the Clausen-Flanagan Brewery, employer, and the Brewers' Mutual Indemnity Insurance Company, insurance carrier. From * Decision rendered, July 1, 1918. 171 N. Y. Supp. 522.

a decision of the State Industrial Commission, denying an award, claimant appeals. Affirmed.

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

Frederick T. Case, of New York City, for appellant.

Fitch & Grant, of New York City (Grant C. Fox, of New York City, of counsel), for respondents.

COCHRANE, J. The deceased employee died as the result of heat prostration on August 1, 1917, after a prolonged period of excessive heat. He was a driver of a brewery wagon, engaged in delivering beer. He began work at 7 o'clock in the morning of the day of his death, and delivered 91 half barrels of beer at 11 places in Flushing, N. Y. About 3 o'clock in the afternoon of that day he was driving the brewery wagon about five miles from the city of New York, when he stopped the horses, alighted from the wagon, and walked around, apparently suffering from the heat. In about 10 minutes he dropped dead, having uttered no word after he alighted from the wagon. The commission finds that the heat prostration which resulted in death was an accidental injury, which arose in the course of the employment, but that it did not arise out of the employment.

[1] The question is whether the deceased by reason of his employment was subjected to a special and increased hazard not common to the public in general, but because of the particular circumstances under which he was required to work. The principle applicable to such cases is correctly stated by Commissioner Mitchell in Matter of Claim of Hernon v. Holihan, 14 State Department Reports, 597. In that case the employee sustained a sunstroke while working in a close car with very little air. The commissioner said:

"The deceased was required to work on a very hot day in a close car, handling lumber, which required great exertion. This work under these circumstances, therefore, subjected him to a special and increased hazard. The deceased sustained a sunstroke, not by reason of a risk assumed by the public in general, but because of the special circumstances under which he was required to work."

An award was made in that case which was affirmed by this court in 182 App. Div. 126, 169 N. Y. Supp. 705. So, also, in Matter of Claim of Days v. Trimmer & Sons, Inc., 176 App. Div. 124, 162 N. Y. Supp. 603, an award made to the claimant for a frostbite was sustained on the ground that:

"The claimant, by reason of his employment in handling wet coal in the storm, was specially affected by the severity of the weather."

Cases of sunstroke and frostbite, both arising from extreme weather conditions, although of opposite extremes, seem to be

analogous. The distinction between those cases and the present case, made by the commission itself, indicates that the commission is under no misapprehension as to the legal question involved, and that its determination herein is based on its belief that the work in which the deceased was engaged did not contribute to his death.

[2] The facts in this case are undisputed. The question as above enunciated depends on inferences to be drawn from such undisputed facts. Whatever answer the commission gives to the question finds support in the evidence and is binding on this court. Thus in Matter of Claim of Days v. S. Trimmer & Sons, Inc., supra, it was said by this court, speaking through Lyon, J.: "That the injuries arose out of the employment was fairly a question of fact for the determination of the commission, and it was fully justified in finding from the evidence" that the claimant was specially affected by the weather conditions.

He further said, in reviewing cases from other jurisdictions, where it was held that frostbites did not arise out of the employment:

"In those cases the court found that the man was not specially affected by the severity of the weather by reason of his employment, and the appellate court held that such finding was one of fact and binding."

In the Days Case, as here, the evidence was unçontradicted; but the proper inference to be drawn from such uncontradicted evidence was held to be a question of fact.

"Where conflicting inferences from the same facts are possible, different triers of facts may draw different conclusions, and the weight of evidence is not for consideration in this court." Matter of Claim of Heitz v. Ruppert, 218 N. Y. 148, at page 153, 112 N. E. 750, at page 751 (L. R. A. 1917A, 344).

[3, 4] It was a question of fact for the commission to determine whether the deceased was specially affected by the severity of the heat by reason of his employment. Although earlier in the day his duties required him to unload a large number of half barrels of beer, he had completed that work and was returning to the brewery. It does not appear how long an interval of time elapsed between the unloading the beer and his death. He was accompanied by an assistant, who presumably exerted himself as much as the deceased, and who testified that he did not work harder on the hot days than on other days, and that he was not specially affected by the heat, except that it caused him to perspire. There was a large umbrella on the wagon as a protection from the rays of the sun. Apparently the deceased was returning from Flushing to New York, and while riding along the highway in the ordinary manner he was overcome by the heat. From all the circumstances, the commission was justified in drawing the inference that the heat prostration

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