(dissenting). This is an appeal by an employer and its insurance carrier from a decision of the Workmen’s Compensation Board which held that a heart attack suffered by claimant was an industrial accident, and made an award reimbursing the corporate employer, which had paid claimant’s salary during the period of his disability, at the maximum compensation rate of $32 a week.
Claimant was employed as a vice-president in charge of revenues by the corporate employer which was engaged in business as a freight forwarder in New York City. He was in California on a business trip and to entertain certain business acquaintances accompanied them to the Santa Anita race track. There he became so ill that he was taken to a hospital where it was found that he had sustained a coronary occlusion with an *653infarct of the myocardium. He was disabled for a considerable period of time and during this period was paid a substantial salary by the employer. His full salary was at the rate of $17,000 a year but for a part of the period of disability he was paid on an annual basis of $11,333. Later his full salary was restored. The employer requested reimbursement which was granted by the board at the maximum compensation rate.
The board could find that prior to December, 1948, the employer was in good financial condition, but in that month began to lose money. Thereafter claimant was required to go out and attempt to get lower costs for motor carriers and railroads in order to increase business and this required extraordinary effort. He made many trips to various cities in the east and midwest, and one trip to the Pacific coast. Practically all of his travel was done by airplane because he had to make fast trips in order to keep up with his regular work. Prior to January 1, 1949, he had worked only about seven hours a day, and usually took a couple of days off in each week for recreation. After that date he worked strenuously anywhere from ten to twenty hours a day; and was under a great deal of tension. In fact he had begun to feel the strain before he went to California and complained of feeling tired, but it was insisted that he go there. His work consisted mainly of attending a series of meetings with coemployees, competitors and various municipal organizations.
On the day he suffered the heart attack he arose at 7:00 a.m., had breakfast at 7:30 a.m. and arrived at his local office at 8:00 a.m. He stayed in the office until about 9:15 a.m. conferring with fellow employees, then left for a meeting with others that lasted until noon. He passed up a luncheon engagement in order to get out to the race track with some business acquaintances. It should be added that he was reimbursed by his employer for all the expenses of his trips, and this included any betting losses which he sustained at the track. At the time he was forty-nine years of age, and was somewhat overweight apparently due to his eating habits.
No useful purpose would be served in running the gamut of heart cases from Matter of Green v. Geiger (280 N. Y. 610) to Matter of Masse v. Robinson Co. (301 N. Y. 34, 37). The rule we are bound by finally emerged in the Masse case: “ Whether a particular event was an industrial accident is to be determined, not by any legal definition, but by the common-sense viewpoint of the average man.” This test is a rule of law but its application in the majority of cases will ordinarily be in the realm of *654fact. In that respect it is clearly akin to the standard of care presented to juries in negligence cases.
Appellant argues “ that the award in this case goes beyond the Masse case or any other case and is so extreme as to make a travesty of the Workmen’s Compensation Law, intended originally to aid working men and their dependents who otherwise would be left in dire financial need.” This argument implies an element of social philosophy with which we might be in agreement if we were free to accept it. We have no doubt that the average man might lift his eyebrows at the idea that a high salaried executive would be entitled to compensation under any circumstances but this would be due to the fact that the average man is probably not familiar with the Workmen’s Compensation Law as it is written. Where a corporation insures its employees under the Workmen’s Compensation Law executive officers are deemed covered, and entitled to same rights and benefits as any employee (Workmen’s Compensation Law, § 54, subd. 6). Hence in this claim there is no issue of coverage.
With that element out of the case the claim must be judged by the same tests that would apply to any employee. The proof here indicates that claimant was under unusual physical and mental strain. There is also medical proof to sustain the finding that such unusual effort and strain brought on his heart attack, and it was merely fortuitous that the actual Hoav fell when he was at a race track, although concededly he was there in the course of his employment. These are the usual concomitant elements which place the stamp of an accident on a heart attack, as exemplified in scores of cases. Given these circumstances, whether an average man would view claimant’s heart attack as an industrial accident must be deemed an issue of fact, and the answer of the board to whom such an issue is confided is no better and no worse than that which the courts could give. The courts however have no power to weigh the facts for that function belongs solely to the board. We can only determine whether the board had any reasonable basis to sustain its finding of an accident. (Matter of Broderick v. Liebmann Breweries, 277 App. Div. 422.) If we eliminate any element of social philosophy that would be hostile to including executives within the benefits of workmen’s compensation there is no reason to treat this claim any different than the claim of an ordinary employee would be treated. Viewing the matter in that light we cannot say as a matter of law that the decision of the board was irrational, or that it did not have substantial evidence to sustain it. (Matter of Furtardo v. American Export Airlines, 274 App. *655Div. 954, motion for leave to appeal denied, 298 N. Y. 933; Matter of Anderson v. New York State Dept. of Labor, 275 App. Div. 1010.)
The award should he affirmed, with costs to the Workmen’s Compensation Board.
Halpern and Imrie, JJ., concur with Bergan, J.; Foster, P. J., dissents in an opinion, in which Zeller, J., concurs.
Award reversed and claim dismissed, with costs to the appellants.