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Fishman v. S.W. Layton, Inc.

Supreme Court of New York, Appellate Division

May 19, 1954

In the Matter of the Claim of ANITA FISHMAN, Respondent,
v.
S.W. LAYTON, INC., et al., Appellants. WORKMEN'S COMPENSATION BOARD, Respondent.

Page 166

APPEAL from a decision of the Workmen's Compensation Board, filed March 1, 1951, and from a decision and award of said board, filed December 8, 1952, for benefits under the Workmen's Compensation Law.

COUNSEL

Edward J. Haniver and William L. Shumate for appellants.

Nathaniel L. Goldstein, Attorney-General (Harry Pastor and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.

FOSTER, P. J.

Claimant has been awarded compensation by the Workmen's Compensation Board for injuries and disability resulting from drinking a mixture of coca-cola and benzedrine during working hours for the purpose of relieving drowsiness. The employer and its insurance carrier have appealed from the award on the ground that the alleged accident did not arise out of her employment.

The employer operated a retail optical business and employed claimant as a bookkeeper. Her place of work was confined, in fact she described it as 'dark office * * * like a cellar'. The day of the episode was very hot, and the board could find

Page 167

that claimant became sleepy, and also that she looked tired to her fellow employees. About three o'clock in the afternoon she was persuaded by some of her coemployees to drink a mixture of coca-cola and the contents of a benzedrine inhaler. Almost immediately she suffered dire consequences--a cerebral hemorrhage with coma and paralysis of the left side. There is medical testimony to the effect that those conditions resulted because of weak blood vessels in her system, previously damaged by purpura. The benzedrine she took raised her blood pressure and caused some blood vessels to break.

We think the event can be safely classed as an accident within the meaning of common speech--it was sudden, unexpected and catastrophic. There is no evidence that benzedrine, a rather common drug, would ordinarily cause any such injurious consequences. Undoubtedly the accident happened during the course of her employment, but whether it arose out of her employment presents a more difficult question.

Unquestionably the board could find that claimant's sleepiness was caused in part by her working conditions and that she drank the mixture solely to revive herself. While the ultimate act was of her own volition, for no one forced her to drink the mixture, nevertheless the element of persuasion is important for it was an incident of her association with other employees. She herself felt sleepy and they told her that she looked tired. Without any apprehension as to injurious consequences, and at their suggestion, she took the mixture to relieve herself of a physical condition that arose, in part at least, from her work; and which of necessity must have interfered with the efficient performance of her duties. Her act therefore was not only designed for her own comfort but was obviously also in the interest of her employer.

Appellants rely on some earlier cases to sustain their position that the accident here did not arise out of claimant's employment ( Matter of Brown v. New York State Training School for Girls, 285 N.Y. 37; Matter of Saenger v. Locke, 220 N.Y. 556; Matter of O'Neil v. Carley Heater Co., 218 N.Y. 414). Two of these cases are easily distinguishable on the facts. In the Brown case claimant's husband mistakenly took a bichloride of mercury tablet to relieve pain following an operation for a compensable injury. There was no chain of causation between his accidental injury and the fatal consequences of his mistake. In the O'Neil case the decedent mistakenly took barium chloride instead of epsom salts to relieve an illness that did not arise from his work.

Page 168

The Saenger case cannot so easily be disposed of, and presents a strong analogy to the facts here. There the claimant was injured by the mistake of a coemployee in throwing ammonia into her face instead of water to revive her from a fainting fit that followed an altercation with her superior. It was held that the accident did not arise out of her employment. There is a slight distinction factually. In the Saenger case claimant was not trying to revive herself, but this is a distinction too trivial to merit consideration. No significant distinction in principle can be found, and indeed the Saenger case appears to be stronger on the facts for an award than the present claim. Nevertheless, in ...


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