Alpert v. J.C.&W.E. Powers

• Decision Date: 12 March 1918
• Citation: 223 N.Y. 97,119 N.E. 229
• Court: New York Court of Appeals Court of Appeals
• Parties: ALPERT v. J. C. & W. E. POWERS et al.

223 N.Y. 97

119 N.E. 229

ALPERT

v.J. C. & W. E. POWERS et al.

Court of Appeals of New York.

March 12, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings 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 work on, and about 11 a. m. I began to 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:

‘I didn't have an accident * * * While I was lifting it up I felt pain, and it was like electric shock, more than anything to me. * * * 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 me I took a physic. I thought that would help me

While doing work which he had done regularly every day for seven years, the employé 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 employé 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,...