Matter of Lorchitsky v. . Gotham Folding Box Co.

Hiscock, Ch. J. A substantial award was made to the claimant because of injuries received by him while *11 in the employ of the appellant box company. It is insisted by appellants that while these injuries arose in the course of his employment, they did not arise out of it. Since the award has been unanimously affirmed we are confined in a consideration of this claim to the facts as found by the commission. At the outset of our consideration we encounter a practice by the commission which we regard as unfortunate. This is the one of incorporating the opinion written by the commission as part of the findings. The statute requires the commission to make findings of fact and this contemplates a more precise and decisive statement of the facts than is apt to be found in an opinion which discusses the general features of a claim, the conflicting contentions of the parties, and the nature of the evidence tending to support those claims. As is illustrated in the present proceeding, a discussion which is entirely appropriate as a means of reaching and justifying the conclusions of a trial court, is apt to be very unsatisfactory as a statement of the final and material facts which are found to have been established. The findings proper state that while claimant was in the regular course of his employment he received certain injuries and that these injuries arose out of and in the course of his employment. This latter statement is a mere conclusion and an award ought not to rest upon so general and inadequate a basis. But further than this the findings then state that his injuries were sustained as set forth in the opinion of the commissioner writing in the case “ which is adopted herein as if set forth in full.” We, therefore, are not only permitted but required to turn to this opinion in the endeavor to find out what did happen to the claimant and to ascertain how his injuries arose. It appears therefrom that while claimant was engaged in Ms work an outsider offered to assist him and notwithstanding claimant’s rejection of Ms offer he attempted *12 to do so. He bungled his work and thereupon claimant applied an opprobrious epithet to him. This the stranger resented by striking the claimant several blows. Sometime thereafter while claimant was engaged in his work he fell to the floor, his fall, so far as appears, not being caused by anything then connected with his employment. After these two occurrences — the assault and the fall — were over, the claimant had the injuries complained of and the commissioner writing the opinion proceeds to a discussion of the facts in the attempt to decide which caused the injuries. In the end, however, he does not decide this question but simply reaches the conclusion that the injuries resulted from either one cause or the other, being of the opinion that it was unnecessary to determine which was the cause because where “ there is distinct proof of an accident section 21 of the Compensation Law raises the presumption that it arose out of and in the course of the employment.” This view of the law was erroneous and did not furnish any excuse for not determining which of the two causes resulted in claimant’s injuries. It is not the law that mere proof of an accident without other evidence creates the presumption under section 21 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) that the accident arose out of and in the course of the employment. On the contrary, it has been frequently held, directly and indirectly, that there must be some evidence from which the conclusion can be drawn that the injuries did arise out of and in the course of the employment. (Matter of Eldridge v. Endicott, Johnson & Co., 228 N. Y. 21; Matter of Woodruff v. Howes Const. Co., 228 N. Y. 276; Matter of Hansen v. Turner Const. Co., 224 N. Y. 331; Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326.) Therefore, treating this opinion as stating findings of fact, as we are required to do by the action of the commission, we have it that it has simply been found that the claimant’s injuries resulted from one or the other of two *13 causes, and it is too well settled to require citation of authorities that such alternative findings are insufficient to sustain the award which has been made unless each of the two causes was of such a character as would authorize and justify it. That is not the case. There is some difference of opinion amongst the members of the court whether the assault committed upon the claimant was so connected with and incidental to his employment that it would justify an award. In view of the fact that a new hearing must be had we shall not attempt now finally to decide this question, but leave it to be decided hereafter if it becomes necessary on the evi-. dence as it may then be presented to us. We are all agreed, however, that if the injuries resulted from claimant’s fall there were no findings which indicated that such fall was in any manner connected with or incidental to the employment. In fact some of the statements contained in the opinion would seem to indicate that it was more liable to have resulted from a diseased condition of the claimant in no wise connected with or arising from his employment. Under these circumstances, if claimant’s injuries resulted from the fall, as for the purpose of testing the award we must assume they did, the findings do not justify the conclusions that they arose out of his employment and no award could properly be made therefor. (Matter of Hansen v. Turner Const. Co., 224 N. Y. 332.) Therefore the order and award must be reversed and a new hearing granted, with costs to abide the event.