Burton v. Broadcast Music Inc.

• Decision Date: 04 November 1968
• Citation: 294 N.Y.S.2d 406,31 A.D.2d 557
• Parties: Claim of Linda P. BURTON, Respondent, v. BROADCAST MUSIC INC. et al., Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 406

294 N.Y.S.2d 406

31 A.D.2d 557

Claim of Linda P. BURTON, Respondent, v. BROADCAST MUSIC INC. et al., Appellants Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Nov. 4, 1968.

Rosenman, Colin, Kaye, Petschek, Freund & Emil, Milton Adler, New York City, for respondent.

William P. Hastorf, Joseph J. Kelly, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen., (by Daniel Polansky and Jorge L. Gomez, Asst. Attys. Gen., of counsel), for Workmen's Compensation Bd.

Before GIBSON, P.J., and REYNOLDS, AULISI, GABRIELLI and HERLIHY, JJ.

GIBSON, Presiding Justice.

Appeal from a decision of the Workmen's Compensation Board which awarded death benefits on account of the death of claimant's husband, found by the board to have been due to smoke inhalation and burns of the body caused by a fire of unknown origin which occurred in the hotel suite occupied by him in Vancouver, British Columbia. The suite included decedent's sleeping room and the parlor in which he was found dead; and was used for meetings and conferences in connection with the business activities of decedent's corporate employer which decedent, the company's president, had come to Vancouver to conduct. Apparently, decedent had been alone for some few hours after the departure of one of his associates, who had remained with him following a business meeting in the suite; and, so far as appears, there was no other witness to the events leading to his death.

Appellants' sole contention upon this appeal is that 'the death was the result of the personal acts of the decedent, unrelated to his employment.' Necessary to this contention is the unproven conjecture or conclusion of the Vancouver chief fire warden that '(w)e presumed (the fire) was caused by a cigarette, or some smoking material, getting between the arm of the chair and the cushion.' In sum, appellants argue that decedent had earlier ingested alcohol and a barbiturate and that as a result of a fire started by tobacco smoking, 'the decedent, unconscious because of the drugs and the alcohol, did not remove himself from the burning chair, and therefore, met his death as a result of the combination of the alcohol, the barbiturates, the burns and asphyxiation.' Appellants cite as 'in point and controlling' the decision in Pisko v. Mintz, 262 N.Y. 176, 186 N.E. 434.

In our view, affirmance of the board's purely factual determination is required upon the authority of Matter of McKay v. Republic Vanguard Ins. Co., 20 N.Y.2d 884, 285 N.Y.S.2d 857, 232 N.E.2d 854 and Matter of McKenna v. Atlas Contractors Equip. Corp., 300 N.Y. 317, 90 N.E.2d 479. Each case is closely parallel to this, the McKay case notably so, except that in each case the evidence for disallowance of the claim seems stronger than here; and in each case the employer and carrier unsuccessfully urged, as did appellants here, the controlling effect of Pisko v. Mintz (supra). The board was not bound to adopt the fire warden's unproven assumption that tobacco smoking caused the fire and certainly was not required to reach the additional assumption that decedent's smoking was the causative act, an assumption that the fire warden did not make, and one which is not supported by proof or inference--or at least by any that the board was required to accept--that decedent was accustomed to smoke.

Decision affirmed, with one bill of costs to respondents filing briefs.

GIBSON, P.J., and REYNOLDS, AULISI and GABRIELLI, JJ., concur.

HERLIHY, J., dissents and votes to reverse in the following memorandum.

HERLIHY, Justice (dissenting).

The appellant contends that the fire resulted from a personal act of the decedent, which act was not work-connected.

Essentially the issue is whether or not the finding of the board that the fire was of an 'unknown origin' is supported by substantial evidence within the meaning of Matter of Pisko v. Mintz, 262 N.Y. 176, 186 N.E. 434.

It would seem beyond argument that there is a vast difference between the place of origin of a fire and its precise cause or source. The significance of the place of origin in Pisko (supra) was that the record did not establish any causal connection between the nature of condition of the residence and the place in which the fire originated. The court, in Pisko (supra), noted (pp. 179, 180, 186 N.E. p. 435): 'The danger was in no way connected with the particular apartment or place that Pisko was obliged to occupy under the terms of his employment. The fire was not occasioned by reason of the place or any danger surrounding the apartment. Something ignited the bedding but there is no claim and no proof that the nature or condition of the apartment had anything to do with causing the fire. The only reasonable inference to be drawn is that Pisko, the only person present, through some act of carelessness or negligence of his own not...