Altschuller v. Bressler

• Decision Date: 14 January 1943
• Citation: 289 N.Y. 463,46 N.E.2d 886
• Parties: ALTSCHULLER v. BRESSLER et al.
• Court: New York Court of Appeals Court of Appeals

289 N.Y. 463

46 N.E.2d 886

ALTSCHULLER

v.BRESSLER et al.

Court of Appeals of New York.

Jan. 14, 1943.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Law by Nathan Altschuller, claimant, opposed by Jacob Bressler, doing business as the Bressler Cap Company, employer, and another. From an order of the Appellate Division, 264 App.Div. 805, 34 N.Y.S.2d 669, affirming an award of compensation by the State Industrial Board, opponents appeal by leave of the Court of Appeals after the Appellate Division's denial of their motion for leave to appeal, 36 N.Y.S.2d 436, 264 App.Div. 924.

Affirmed. Joseph F. Hanley, John W. Trapp, and Francis J. Healy, all of New York City, for appellant.

John J. Bennett, Jr., Atty. Gen. (John F. Loehr, of Yonkers, of counsel), for respondent State Industrial Board.

LEHMAN, Chief Judge.

The evidence establishes without contradiction that the claimant suffered a ‘coronary occlusion on May 9th, 1939, or the early morning of May 10th’, that the coronary occlusion produced a ‘hemiplegia accompanied by sensory as well as motor aphasia.’ As a result the claimant is totally disabled, and is unable to speak coherently or to understand what is said to him. The State Industrial Board has found that the claimant's total disability is the result of accidental injuries sustained by the claimant on May 9, 1939, and that the injuries arose out of and in the course of his employment. The Appellate Division has unanimously affirmed the award made to the claimant for those injuries.

The claimant is, of course, incapable of giving any testimony and no witness was produced who saw any accident. In his decision the referee who heard the claim stated: ‘This claimant is meantally dead, although his body lives. I have, therefore, taken hearsay testimony corroborated by certain direct evidence, and on the basis of all the testimony, I find that it has been established that claimant suffered an accident arising out of and in the course of his employment.’ Concededly the finding of the Industrial Board that the claimant's condition is the result of accidental injuries arising out of and in the course of his employment rests solely upon the ‘hearsay testimony,’ perhaps corroborated, by ‘circumstances or other evidence.’ This court granted leave to appeal in order to review the question whether under the terms of section 118 of the Workmen's Compensation Law, Consol.Laws, ch. 67, such hearsay testimony may be accepted as sufficient to establish the accident and the injury.

Prior to the alleged accident, the claimant worked for about 18 years as a blocker of hats and caps in the employ of Jacob Bressler, doing business as the Bressler Cap Co. In his work the claimant used a ‘boiler’ which contained three or four pails of water and when filled weighed between 75 and 125 pounds or more. He was required to change the water occasionally when it became dirty. The employer testified that to remove the dirty water from the kettle ‘you take the kettle in your hand and pour it into a pail.’ From testimony of other witnesses it appears that the dirty water could be removed, also, by ‘scooping.’ In the early afternoon of May 9, 1939, the claimant complained to Harry Bressler, a fellow workman and a brother of the employer, that ‘he has a terrible heart-burn.’ Bressler, testified, as a witness for the employer, that he asked the claimant: ‘What happened to you? Did you report an accident?’ and then in answer the claimant, by signs and words, conveyed to him ‘that he lifted something.’ The witness sent for bicarbonate of soda. The claimant took the medicine and ‘said it relieved him for a few minutes, and then he got the pain again.’ Concededly the pain constituted a premonitary sumptom of the coronary occlusion which resulted in the claimant's total disability and concededly from the start the claimant said that the pain was due to ‘lifting.’

Another fellow-worker testified for the claimant that she saw him take some medicine after complaining of ‘heart burning’ and after twenty minutes or a half-hour the witness asked him he felt and ‘he told me that he is still sick and is wondering whether lifting the boiler would cause this condition.’ The claimant went home later in the afternoon. The superintendent of the house where claimant lived testified that she saw him get out of a taxi looking ‘very blue’ and ‘so I asked him, ‘What happened to you?’ He says: ‘I got hurt in the place, lifting something.‘‘ The claimant's wife testified that she came home a little after five. We quote verbatim her testimony of the conversation she then had with the claimant:

‘Q. You had a conversation with him. Tell the Referee what he said to you and what you said to him. A. I said to him why he is home so early, because he usually comes later, about seven o'clock. So he said to me, in the afternoon he got a heartburn and he went over to the man who takes charge, Mr. Bressler, and he gave him some bicarbonate of soda, and it stopped a little. So I said, ‘How does it come you had a heartburn?’ He said he was in a hurry and he wanted to lift up the boiler at once he usually takes out with a pail the water from the boiler so he lifted it and all of a sudden he got a heartburn and the man gave him some bicarbonate of soda. He tried to work and he couldn't. So he came home earlier that day he would try to rest up and he thought he would be all right. That was the conversation.'

If the claimant had testified under oath and subject to cross-examiantion, that ‘all of a sudden he got a heartburn,’ while lifting the heavy boiler, findings of the Industrial Board that the claimant suffered a coronary occlusion ‘due to the strain and unusual effort used in the lifting of said heavy kettle’ and that ‘the total disability of Nathan Altschuller was the natural and unavoidable result of the accidental injuries sustained by him’ would not be subject to serious challenge. There is ample medical testimony that such ‘strain and unusual effort’ would be a competent producing cause of the occlusion and though physicians of unquestioned scientific attainments and reputation testified that the occlusion could not have been so caused, this court cannot pass upon scientific questions when experts have expressed conflicting opinions. The question remains whether testimony of narration of the alleged accident by the claimant can be accepted as sufficient to prove that the alleged accident did occur.

In Matter of Carroll v. Knickerbocker Ice Company, 218 N.Y. 435, 113 N.E. 507, Ann.Cas.1918B, 540, the court decided that hearsay testimony, i. e., testimony by a witness of declarations or narration by a deceased workman that in the course of his employment he sustained injuries in an accident, was not sufficient to sustain the finding there made by the Commission that the death of the workman was caused by such an accident. All the judges, however, agreed that section 68 (now s 118) of the Workmen's Compensation Law ‘has plainly changed the rule of evidence in all cases affected by the act,’ and, as the prevailing opinion points out, permits the court ‘to receive and consider, not only hearsay testimony, but any kind of evidence that may throw light on a claim pending before it.’ 218 N.Y. at page 440, 113 N.E. at page 508, Ann.Cas.1918B, 540. There was a sharp dissent...