objection was made at the trial and no opportunity whatever given the defendant to amend. It would be rank injustice to allow appellant to avail himself of such a claim at this state of the cause. On that ground we are compelled to disregard the very elaborate argument of learned counsel on that point. Moreover, the plaintiff is arguing on a false premise. The answer is, first, a general denial; then a statement of facts. which, if true, bar plaintiff from recovery. That is good pleading under the statute. While it was not stated in the ruling of the trial court as ground for granting a new trial, the action of the court can be sustained for error in giving the instruction at the instance of plaintiff, that under the facts in evidence he was entitled to recover, those facts being found true to the satisfaction of the jury. In view of the Illinois Workmen's Compensation Law, as pleaded and in evidence, plaintiff could not recover and this instruction should not have been given. The same learned counsel for the appellant also argues that under the Illinois Law the matter should have been submitted to the Industrial Board of Illinois for adjudication before bringing suit. That point might be entitled to consideration, if plaintiff was proceeding under the Illinois law. But he is not. It follows that the order of the circuit court in granting a new trial was correct. It may be that appellant, plaintiff below, will elect to dismiss his action, rather than let judgment go against him, and proceed under the Illinois Workmen's Compensation Law, if not debarred by limitation or otherwise in that law, and if it is necessary to do so to obtain the relief that law provides. The order granting a new trial is affirmed and the cause remanded for such further proceedings as the parties may be advised are proper and in accordance with what we have here announced. Allen and Becker, JJ., concur. SUPREME COURT OF NEW YORK. BRADY HOLBROOK, CABOT & ROLLINS CORPORATION.* MASTER AND SERVANT WORKMEN'S COMPENSATION; AMPUTATION OF LEG NOT DUE TO ACCIDENTAL INJURY. An award for the loss of claimant's leg is not justified when all the evidence shows that amputation of the leg, which was fractured by a fall, was made necessary, not by the accident, but because of cancer of the bone. (For other cases, see Master and Servant, Dec. Dig. § 374.) · Lyon, J., dissenting. Appeal from the State Industrial Commission. * Decision rendered, November 12, 1919. 178 N. Y. Supp. 504. Proceeding for compensation under the Workmen's Compensation Law by Joseph F. Brady, opposed by the Holbrook, Cabot & Rollins Corporation, employer and self-insurer. Award in favor of claimant, and the employer appeals. Award reversed, and proceeding remitted to the Industrial Commission. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Adolph Hansen, of New York City, for appellant. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. WOODWARD, J. The State Industrial Commission has found as facts that on the 28th of January, 1919, the claimant was employed by the defendant company in the construction of a subway in New York City, and that while walking along a track outside of the subway, where he had a right to be in the course of his employment, the passageway was "suddenly plunged into darkness," and as the claimant was feeling his way he stumbled and fell down to the bottom of a concrete floor decline, "and that as a result of said accident the claimant sustained a fracture of the right femur, which necesitated the amputation of his right leg at about the middle of the thigh." There is no evidence in the record of this passageway having been previously lighted and "suddenly plunged into darkness," nor that the claimant "stumbled and fell down to the bottom of a concrete floor decline," nor yet that the “fracture of the right femur” was such as to "necessitate the amputation of his right leg." Aside from this, the finding seems to be sustained by some evidence. The claimant testified: "I was walking along in perfect darkness where it had been light a short time before, and when I came to this incline I stepped into space and fell down the incline." This incline was shown to be at an angle of about 30 degrees and to be about 9 or 10 feet in length. What occurred was that the claimant, walking along this dark passageway, miscalculated his distance, stepped forward and upon the upper end of the incline, and fell forward, because of the comparatively abrupt decline. But, whatever may have been the details of the fall, there is no question that the claimant fell, and there is no doubt that the right femur was broken at the extreme lower end; but the conclusion that this comparatively simple fracture "necessitated the amputation of his right leg at about the middle of the thigh," some inches above the fracture, is not sustained by the evidence, and this is the material question in the case. The evidence is wholly undisputed that the claimant had a "pathological fracture." This is his own admission. Upon his being taken to the Roosevelt Hospital it was found that he had a osteosarcoma, popularly known as cancer of the bone, at the point of the fracture, and there is no dispute in the evidence that the amputation was made, not because of the fracture, but because of the disease. Dr. Gillespie testified, and there was no contradiction, that there was no visible injury to the outside of the leg that he could find, and that "the leg was amputated because the growth was malignant"; that if the accident had occurred, as described, and there had been no sarcoma at that point, no amputation would have been necessary. The diagnosis was made immediately after the accident, and the operation took place within eight days of the diagnosis, and the undisputed evidence is to the effect that the operation was for the purpose of curing the diseased condition of the leg, not because of the fracture. Indeed, the fair inference from the evidence is that the fracture was the result of the disease rather than of the accident, though it was inferentially admitted that the false step hastened the break. But the loss of the leg was clearly due to the diseased condition. that disease was the only justification for the amputation, and the disease concededly existed before the accident, and was, doubtless, the underlying cause of the fracture, for it is hardly conceivable that such a fall as the claimant describes could have resulted in a breaking of a thigh bone at its lower extremity. It is not shown that the claimant was bruised in any way; he apparently fell forward down an incline of about 30 degrees and rolled to the bottom, with no other injury than the breaking of the diseased bone, and to charge this disease to the industry, simply because it became manifest by reason of this inconsequential fall, is an abuse of the purpose of the Workmen's Compensation Law, which sought to insure against the inherent risks of certain classes of industry. The very recent discussion in Richardson v. Greenberg, 188 App. Div. 248, 176 N. Y. Supp. 651, makes it unnecessary to go into the question of the distinction between an accident and disease, and it seems to us that, while the commission might have made an award for the accident, it was not justified in going to the extent of charging the employer with the loss of a leg, when all of the evidence shows that the amputaton was made necessary, not by the accident, but by the disease. without which the accident, in all probability, would have resulted in nothing more serious than a wrenching of the body. The award should be reversed, and proceedings remitted to the Industrial Commission for disposition in accordance with this opinion. All concur, except Lyon, J., who dissents. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. CAVALIER V. CHEVROLET MOTOR CO. OF NEW YORK, INC., ET AL.* 2. MASTER AND SERVANT WORKMEN'S DISEASE NOT CAUSED BY ACCIDENT. Evidence that a workman, while doing his ordinary work, felt a severe pain in his right side, and that next day a physician found a "right inguinal hernia (traumatic)," is insufficient to show that he was accidentally injured in the course of his employment, since "inguinal" refers to groin, not side, and "traumatic" contemplates some wounding of the body. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) John M. Kellogg, P. J., dissenting. Appeal from State Industrial Commission. Proceedings under the Workmen's Compensation Law for compensation for the injury of James (or Vincenzo) Cavalier, opposed by the Chevrolet Motor Company of New York, Incorporated, employer, and the Zurich General Accident & Liability Insurance Company, Limit * Decision rendered, November 12, 1919. 178 N. Y. Supp. 489. ed, insurance carrier. From an award of the Industrial Commission, allowing compensation, the employer and insurance carrier appeal. Reversed, and matter remitted to Commission. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Alfred W. Andrews, of New York City, and Ainsworth, Carlisle & Sullivan, of Albany (John N. Carlisle, of Albany, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. WOODWARD, J. The State Industrial Commission has found as conclusions of fact that one James Cavalier received his injuries while employed as a laborer by the Chevrolet Motor Company, at Tarrytown, N. Y.; that "while engaged in his regular course of employment, at about 4:30 p. m. of March 11, 1919, James (or Vincenzo) Cavalier, while pushing a pipe about 14 feet long, felt a severe pain in the right side, which caused him to stop work for a short time. On March 12, 1919, he returned to the plant of his employer, and after having informed his employer that he had been injured on March 11, 1919, he was assigned by his employer to light work, which was altogether different from his ordinary line of duty. On the evening of March 12, 1919, he consulted a physician, who informed him that his condition was such that he could not work, and that an operation was necessary. The said physician diagnosed his injury as a "right inguinal hernia (traumatic)," and that "the injuries sustained by James (or Vincenzo) Cavalier were accidental injuries, and arose out of and in the course of his employment." [1, 2] If this case can be distinguished from that of Matter of Alpert v. Powers, 223 N. Y. 97, 119 N. E. 229, upon the authority of which one of the state industrial commissioners dissented from the award, the point of digression does not occur to us. There is no finding, as there is no evidence, of anything in the nature of an accident-merely that "while engaged in the regular course of his employment" and "while pushing a pipe about 14 feet long" the claimant "felt a severe pain in the right side," and that on the following day a physician "diagnosed his injury as a right inguinal hernia." There is no attempt to establish that the claimant did not have a hernia prior to the day on which he is alleged to have "felt a severe pain in the right side." What part of the right side is not disclosed; it may have been in the lung or in the pleura, or in any of the muscles of the right side; while an "inguinal hernia" is, as its name clearly discloses, confined to the groin. One would hardly describe the groin as the "right side" of a man, and yet, because a phyisican discovered "a right inguinal hernia" on the day following "a severe pain in the right side," the State Industrial Commission reaches the conclusion that the claimant suffered "accidental injuries" which "arose out of and in the course of his employment." The claimant's own testimony is that at the time of the alleged injury he stopped work for about 10 minutes and then continued his employment up to 5 o'clock; that is, the alleged injury occurred at 4:30. and after an interval of 10 minutes he resumed work and stayed until 5 o'clock, a period of 20 minutes. No one pretends that there was any visible injury, that anything occurred outside of the ordinary routine of the day's work, and there is no testimony whatever tending to show that there was any connection between this "right inguinal hernia" and the "severe pain in the right side" of the claimant-no evidence that a hernia could be produced by anything which was shown to have occurred on the 11th day of March, 1919. We know judicially that hernia is a disease arising out of natural causes as well as from accident (Matter of Alpert v. Powers, 223 N. Y. 97, 101, 119 N. E. 229), and the Workmen's Compensation Law (Consol. Laws, c. 67) does not insure against disease, except where the disease or infection "naturally and unavoidably" results from an injury (Richardson v. Greenberg, 188 App. Div. 248, 249, 176 N. Y. Supp. 651). It does not follow that, because a man has a pain in his side while doing his ordinary work, without slipping, falling, or other mishap, and a physician finds an inguinal hernia the next day, that the hernia resulted from accidental injuries, even though the physician adds to his declaration, in parenthesis, the word "traumatic." This word, however much abused in matters relating to insurance, contemplates some external violence, some wounding or bruising of the body, and no one pretends that anything of the kind occurred in this case. The claimant himself merely says that he was doing his usual work, making no suggestion of anything happening, except that he felt a 'severe pain in the right side," such as all persons experience, no doubt, at some time in their lives, and the next day a "right inguinal hernia" is discovered, and this simple pain in the side is translated into an accident, within the meaning of a statute designed to protect against the extraordinary risks of certain designated employments. Alpert v. Powers, 181 App. Div. 902, 167 N. Y. Supp. 385. There is not even a suggestion that this hernia had not existed to the knowledge of the claimant prior to this alleged injury. It is not an uncommon thing for men with hernia, to work at heavy labor and to suffer at times from exertion, and there is not a particle of testimony from which it may be legitimately inferred that this was not the case with the claimant. No connection whatever is shown between the performance of the labors of the claimant and the hernia for which this award has been made-no identity of time or of place, and nothing which brings the case within any of the provisions of the statute; and the capital of a legitimate business ought not to be taken to compensate for an alleged injury which is not shown to have been produced in connection with the services rendered by the claim ant. The award should be reversed, and the matter remitted to commission. All concur, except John M. Kellogg, P. J., who dissents. SUPREME COURT OF NEW YORK. IN RE COLE. COLE. FLEISCHMANN MFG. CO. et al.* MASTER AND SERVANT-DEATH WHILE EXTINGUISHING FIRE "ARISING OUT OF AND IN COURSE OF EMPLOY MENT." An associate member of a volunteer fire department, who was killed while assisting in extinguishing of a fire under chief engineer of fire * Decision rendered, November 12, 1919. 178 N. Y. Supp. 451. |