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January 27, 1919, a factory laborer wet his feet and legs while putting out a fire upon his employer's plant. He developed a high temperature within a few days. April 4, 1919, he died of pneumonia. His employer took an appeal upon the ground that he had not had notice of the accident. The Attorney-General claimed that the employer had waived notice by making no contention at the Commission's hearing. The court reversed the award and remitted the matter to the Commission upon the ground that the employee had failed to give notice and that the Commission had failed to excuse such failure: Leon v. Gilbert Knitting Co., Case No. 13518; App. Div.-, May 5, 1920.
The question of notice figured in the case of a pantry maid who claimed to have hurt her arm in lifting a pan of dishes; the Appellate Division reversed an award to her and remitted her case to the Commission for failure of proof that her disability had arisen from an accident: Mooney v. Delmonico's, Case No. 303088, July 14, 1919; 191 App. Div. 931, Mar. 3, 1920.
Cases of accident subsequent to May 13, 1918, in which the employers' plea of want of notice failed to affect court decisions are: Arcieri v. Booth & Flinn, Case No. 200169, Jan. 27, 1919; 190 App. Div. 885, Nov. 15, 1919; Cesaro v. Bossert Corp., Case No. S-12326, Apr. 24, 1919; 190 App. Div. 924, Dec. 29, 1919; France v. Kingston Shipbuilding Corp., Case No. 10903, May 3, 1919; 190 App. Div. 783, Mar. 3, 1920; Franklin v. Pierce Arrow Motor Co., Case No. B-11599, May 9, 1919; 190 App. Div. 923, Dec. 29, 1919; McCaffrey v. Dupont De Nemours Co., 20 S. D. R. 373, Apr. 4, 1919; 190 App. Div. 889, Nov. 21, 1919; Nokransky v. Masson Bros., Case No. 326742, June 6, 1919; 190 App. Div. 923; Dec. 29, 1919; Rooney v. Great Lakes Transit Corp., Case No. 13744-B, June 23, 1919; 191 App. Div. 10, Mar. 3, 1920; and Scism v. Union Mills, Case No. 12975-A, July 2, 1919; 191 App. Div. 929, Mar. 3, 1920.
C. ACCIDENTS OCCURRING BEFORE AMENDMENT OF § 18
The Appellate Division, unanimously and without opinion, affirmed findings of the Commission denying compensation to a quarry hand for loss of his eye because he had failed to give notice of his accident. Licursi v. Balmforth Bros., File No. B-961, Oct. 16, 1918; 190 App. Div. 924, Dec. 29, 1919.
The question of notice figures in the briefs of Farrington v. U.S. R. R. Administration, 20 S. D. R. 365, Feb. 24, 1919; 190 App. Div. 920, Dec. 29, 1919; – N. Y. -, Mar. 9, 1920; and White v. American Society for Prevention of Cruelty to Animals, Death Case, No. 77038, May 21, 1919; 191 App. Div. 6, Mar. 3, 1920. These cases were reversed by the courts upon grounds other than notice. The question figures also in Nieresdursen v. Clark & Son, 19 S. D. R. 532, 4 Bul. 167, Apr. 9, 1919; -- App. Div. —, reversed May 14, 1920; and Johnson v. Faribault Building Corp., 20 S. D. R. 453, July 9, 1920; App Div. -, May 5, 1920.
XIV. PRESUMPTIONS IN FAVOR OF COMPENSA
The presumptions of Workmen's Compensation Law, $ 21, throw the burden of proof in compensation cases mainly upon the employer. Earlier decisions and opinions illustrating their operation are in Bulletin 81, pages 392–397, and Bulletin 95, pages 345–355. Additional cases are presented here.
A. CONNECTION BETWEEN ACCIDENT AND DISABILITY
Given an accident and a subsequent disability, the Commission has held upon opinion by Commissioner Lyon that the presumptions of $ 21 incline the scale to a holding that the disability is a consequence of the accident. Commissioner Lyon's opinion is as follows:
BUTERA V. MORSE DRY DOCK & REPAIR Co., 20 S. D. R. 418, 4 Bul. 176,
May 13, 1919. LYON, Commissioner: The doctors are, as is not unusual in many of these eye cases, in disagreement as to the causal relation between the injury and the present loss of vision in claimant's eye. There is, however, no question but that there was an accident resulting in a piece of steel entering the claimant's eye with sufficient force to imbed itself in the cornea so deep that it could not be removed without the aid of an expert physician. There is no denial but that three-quarters of the vision of this eye is now gone, nor is there any substantial denial of the fact that the claimant before this accident had vision in this eye which was perfectly useful for practical purposes. Given the accident and the loss of vision immediately following, I do not quite see how we could deny an award in this case even in the absence of the presumptions raised by section 21 of the law.
The employer claims that the presumptions raised by this section are limited to the fact that the accident arose in the course of his employment and that his work was hazardous but I think this is too limited a view to take of that section. I think the presumptions of section 21 are sufficient in a close case or an evenly balanced case, to turn the scale in favor of the employee. I am also of the opinion that there is no substantial evidence to overcome the presumption and that an award must therefore be made for the loss of three-fourths of the vision of this eye.
On the 13th day of May, 1919, the Commission acted upon the foregoing matter in accordance with the foregoing opinion. MITCHELL and SAYER, Commissioners, concur.
Given an accident consisting of a blow upon the chest and death from pneumonia three days thereafter, the presumption is that the disease and the death are results of the accident: Delso v. Crucible Steel Co., 21 S. D. R. 590, 5 Bul. 95, Dec. 10, 1919.
B. UNWITNESSED ACCIDENTS Employees are often found dead or injured, no one having witnessed the death or the injury. Their bodies are discovered in the water or they disappear under circumstances that indicate accidental drowning, though the bodies are not recovered. They are found dead from asphyxiation, heat prostration or freezing. Now and then they incur unwitnessed accidental injury and survive but cannot themselves account for the cause. In such cases the burden of proof is upon the employer to show that the accident has not arisen out of and in the course of the employment and the probabilities are that he will not be able to do so. In but one of eleven cases of unwitnessed death described in Bulletin 95, pages 346–352, did the Commission and the Appellate Division deny death benefits. In the one exceptional case the employer showed that the employee had lingered unduly upon his employer's premises after his discharge and had thereafter lost his life by drowning: Whalen v. Stanwood Towing Co., 186 App. Div. 190, Jan. 8, 1919.
In but one of the following six additional cases of unwitnessed accident did the claimants fail of compensation.
In the exceptional case, a laborer who had been wheeling ashes for his employer's boiler house crawled into a gas shanty, upon the premises but remote from his place of work, and was there found dead of gas poisoning; the Commission denied death benefits to his father, saying that there had been no occasion for him to go to the place in connection with his work; the Appellate Division sustained the denial unanimously and without opinion: Salas v. Lackawanna Steel Co., 20 S. D. R. 368, Mar. 19, 1919; 190 App. Div. 924, Dec. 29, 1919.
A pressman returned to his work at night after having had his supper and fell to the floor of the press room, fracturing his skull; no one witnessed his fall; he died without recovering consciousness; the employer sought to show that the fall had been due
solely to disease, but the Commission awarded death benefits. Upon appeal, the Appellate Division, stating the facts tending to show an accident, unanimously affirmed the award, with opinion as follows:
GRAFFE V. ART COLOR PRINTING Co., 191 App. Div. 669, May 5, 1920. KILEY, J.: On the 19th of November, 1917, Felix Graffe, husband of the plaintiff was working, night-shift, for the Art Color Printing Company, of New York city. The men shut down at ten P. M. and went out to lunch; Graffe went with them. They returned at about ten forty-five P. M. and they saw deceased lying on his back between two rolls of paper. His skull was fractured; the floor where he fell was concrete; he was taken to the hospital and died in a few hours. The Commission awarded his widow and minor children compensation; later it reversed the award, and still later, by divided vote, reversed its reversal and reinstated the award. The appellants contend that there is no evidence of an accident authorizing such award, and cite Matter of Collins v. Brooklyn Gas Co. (171 App. Div. 381) and Matter of Hansen v. Turner Construction Co. (224 N. Y. 331) as decisive against respondents. In 171 App. Div. 381, the deceased was assistant foreman and while sweeping the paving near the works he fell and later died in the hospital. The theory of claimant in that case was that escaping gas caused him to faint. He had said to a fellow employee that “ a weak spell must have come to him.” The evidence showed absence of any effect from gas and the theory was abandoned and the Commission found the decedent stumbled and fell and thus received his injury. There was no evidence of any obstruction. The Hansen Case (224 N. Y. 331) is in many respects like this case; but in that case there was total absence of evidence of anything in the nature of obstruction, of pillars or posts, near him that should cause him to fall. In the present case several facts, connected with the employment, of conditions that might have caused Graffe to fall and fracture his skull appear: The concrete foor; grease upon the floor about the press at which he worked; rolls of paper three feet in diameter lying lengthwise on the concrete with metal bar extending twelve to fourteen inches out of either end, over which he could trip; absence of light except one light thirty feet away; dark around the press where he worked and was found; the presence of noxious, enervating and pernicious odor and gases; and close and tepid atmosphere, kept so continuously and purposely on account of the effect fresh air or moving draughts had upon the colors that were being stamped upon the paper; all of which was connected with the employment and business, and which the evidence shows might have been the cause of the fall of the decedent. We think the decision in Chludzinski v. Standard Oil Co. (176 App. Div. 87) sustains the award of the Commission in the case at bar.
The award should be affirmed. All concur. Award affirmed.
A cellar man in a brewery was found dead at the bottom of an elevator shaft during the noon lunch time interval, he had customarily used the elevator to go to an upper floor for toilet and