On the 20th of August, 1928, Leslie Andrews resided at 91 Brook street, Tompkinsville, Staten Island, and was employed as a handy man by the L. S. Amusement Corporation, with office and principal place of business located at 120 Victory boulevard, Staten Island, N.Y. The employer was engaged in operating a theatre. On that day Leslie Andrews was hired to paint the marquise. He asked one Van Mersereau, a fellow-employee, for a pail of water, and they both walked toward the faucet along the alleyway at the corner of the building. Mersereau was carrying the pail. While thus proceeding, Andrews was taken with a fit. Mersereau describes it by saying that he saw the rolling of his eyes and the white stuff coming from his mouth. Andrews fell striking his head on the *Page 99 sidewalk, made of concrete. The State Industrial Board found as a fact that Andrews "had an epileptic seizure which caused him to fall, and in falling his head struck the cement sidewalk, whereupon he sustained injuries in the nature of a fractured skull, from which he died on the same day." The Board made an award upon a finding that death resulted from accidental injuries arising out of and in the course of employment. The Appellate Division has affirmed by a divided court, upon the authority ofMatter of Mausert v. Albany Builders Supply Co. (250 N.Y. 21). There is a distinction between that case and the one now on appeal.
Mausert, who was a teamster, fell from the seat of his truck to the pavement, the wheels passing over his body, causing death. He was in the course of his employment, and we held that his death arose out of his employment. The risk of falling from the seat of a truck and being injured was incident to and a risk of his employment. Every day that he was driving this truck there was the risk or danger that he might fall off, while careless or asleep, and be injured either by the horses, other vehicles or his own. This risk, we said in the opinion, would not surround him while sitting in a chair in his home, or upon the ground, or even while walking the streets. It was as a teamster that he incurred the risks. Matter of Barath v. Arnold Paint Co. (238 N.Y. 625), cited in the Mausert opinion, was another injury resulting from apoplectic stroke, the fall in that case being from a scaffold, causing a fractured skull. The conclusion there was that the risk or danger was one arising out of the employment because the loss of control through apoplexy while on a scaffold would result in a serious fall. The place of work increased the risk and danger from such an affliction.
None of these added risks or dangers are found in the facts of this case. Andrews was on the sidewalk; he had not commenced his painting; he was walking with his *Page 100 co-employee to get a pail of water. The epileptic-seizure caused him to fall to the sidewalk, striking his head and fracturing the skull. Where was there any added risk due to the employment? The same result might have followed if he had been coming to or going from his employment, or even in his own house, if he had fallen and struck his head on a chair, table or other hard substance. If the epileptic fit itself had killed him, like an attack of heart disease, all concede that there would be no recovery. The risk of falling to the pavement in such a fit was not due to the employment. Had Andrews fallen from a ladder, from a scaffold, from a stairway or down a hole, the chances of injury would have been increased. If there had been an accident causing his fall, we would have another element in the case. There was no accident; he fell because of internal disorders, and the injury resulted from no added risk because of his employment. This distinction runs through many cases. (See Matter of Collins v. BrooklynUnion Gas Co., 171 App. Div. 381; Matter of Hansen v. TurnerConstruction Co., 224 N.Y. 331; Carroll v. What Cheer StablesCo., 38 R.I. 421; Bd. of Commissioners of Greene Co. v.Shertzer, 73 Ind. App. 589.)
On very similar facts, the Court of Session in Scotland, inRodger v. School Board of Paisley (49 Scot. Law Rep. [1911, 1912], p. 413), held that death did not arise out of the employment. After delivering a message, William Rodger, a workman, was returning to his place of employment in Paisley. He was janitor at the North Public School at Paisley and had been sent by the school authorities to deliver a message. He became faint, leaned his hands against the wall of a house, and then fell backwards, striking his head violently upon the stone pavement. The cause of death was the fall, either from giddiness or faintness, brought on by the excessive heat of the day. The Lord President said: "I do not think that his employment in any way subjected him to the *Page 101 particular class of accident in consequence of which he died. * * * He might have had this fainting fit in his own room and fallen against the fender, and he might on the other hand have fallen upon a soft rug in a room and upon some comparatively soft surface in the street.
"And this case is entirely distinguished, I think, from the other class of case where the particular situation in which a man is put makes the fall more than usually dangerous, such as the case where the man was standing near the hold of a ship, being obliged to be there by his occupation, and fell down the deep hold and hurt himself. * * * This man was hurt in going along an ordinary street. It was absolute chance that the pavement at that particular place, as it happened, was paving stone which cracked his head."
The case of Thom v. Sinclair (in the House of Lords) ([1917] App. Cas. 127) is exactly the same as Matter ofFillitti v. Lerode Homes Corp. (244 N.Y. 291). These were cases of falling walls, and in both it was held that the place of work was a risk arising out of the employment.
Dennis v. White Co. (in the House of Lords) ([1917] App. Cas. 479) is similar to a long line of cases in this court, relating to "street employment." Where the work of an employee causes him to ride a bicycle through a street or to cross highways in the continuous performance of his work, here also is a risk which we have recognized as arising out of the employment. Such is the Dennis case.
In Upton v. Great Central Ry. Co. ([1924] App. Cas. 302) an employee of a railway was directed to travel to a station to repair a water main. As the train came in, he hurried across the platform to reach the train and slipped and hurt his knee, resulting in his death. An award was sustained. It would be sustained by us. We have such cases frequently. The man slipped and fell; there was an accident. A difference exists between such a case and one where a man falls because of internal troubles in no *Page 102 way due to, or caused by his employment. All of these three cases are in harmony with everything that our court has decided. TheRodger case is not referred to in any of these opinions because it has nothing to do with the point.
Wright Greig, Ltd., v. M'Kendry (Court of Session, Scotland) ([1918] 11 Butterworth's Workmen's Compensation Cases, 402) does not overrule the Rodger case, but distinguishes it.
M'Kendry fell and struck his head, fracturing his skull. There was no evidence as to the cause of the fall, but it was assumed to have been caused by a uraemic fit. An award was sustained on the ground that he was injured in an accident arising out of his employment, and strange to say, the Thom case and the Rodger case are cited as authorities for the holding. The court said: "The circumstances of Rodger's case, in my opinion essentially distinguish it from the present. The fall happened on the public street. The janitor there differed in no material respect from any other passenger on the King's highway. The fact that he was on a message for his employers in no sense distinguished him, so far as risk or danger was concerned, from any other passenger or added to his risk." I doubt if we would have made this distinction.
Following, therefore, the distinction which has been drawn by this line of cases, and realizing that the Workmen's Compensation Law has not yet been extended to diseases which cause a man's death, unaccompanied by any added risk due to the employment, the order of the Appellate Division should be reversed and the claim dismissed, with costs against the State Industrial Board in this court and in the Appellate Division.