
    Jerome Niskern, Respondent, v. The United Brotherhood of Carpenters and Joiners of America, Appellant.
    
      Accidental injury — dizziness and inability to continue work because of thehardening of the blood vessels of a certificate holder in a mutual benefit association.
    
    Upon the trial of an action brought by the plaintiff, as a member of the defendant, a mutual benefit association, to recover a disability benefit which the constitution of the defendant provided that he should receive if he became permanently disabled for life by accidental injuries while working at his occupation as a carpenter, the plaintiff testified that he was building a porch over ' a stoop; that ‘"I was putting up the frame and the rafters to it, and I had to climb up a ladder; I didn’t have any scaffolding built, and I was taken very, dizzy, and came nigh falling off the ladder, and I got down and stayed down quite a while, and made three or four attempts to get as far I could,- and I couldn’t make out with it. Then I went and got another man to help finish it. I did not fall off that ladder. I came very near to it. It was not a warm day.”
    His theory was that, on the occasion referred to, he was suffering from a harden-' ing of the blood vessels of the body, known in medicine as arterial sclerosis, and that the strain to which he was subjected in lifting heavy timber ruptured a diseased blood vessel and produced a condition unfitting him for further labor át his trade.
    
      Held, that the plaintiff had not established the existence of an accidental injury within the meaning of the defendant’s constitution.
    Appeal by the defendant, The Uñited Brotherhood of Carpenters and Joiners of America, from a judgment of the County Court of "Westchester county, in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of-March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Odell D. Tompkins, for the appellant.
    
      David Swits, for the respondent.
   Willard Bartlett, J.:

The plaintiff, as a member of the defendant corporation, which is a mutual benefit association, has recovered a verdict of $200 against it under a provision of its constitution which entitles a member in 'good standing for a period of two years to receive a disability benefit of that amount upon becoming permanently disabled for life by accidental injuries while working at his occupation as a carpenter, and thereby totally incapacitated from ever again following the trade for a livelihood.

The plaintiff in his testimony describes the occurrence which is alleged to have resulted in his total incapacity to work any longer as a carpenter as follows: “ It was in December, 1901. I was helping to build a porch over a back stoop of a house on North" Seventh avenue. I think the name was Moore. I was working for myself and had been employed by the owner. I was putting up the frame and the rafters to it, and I had to climb up a ladder; I didn’t have any scaffolding built, and I was taken very dizzy, and came nigh falling off the ladder, and I got down and stayed down quite a while, and made three or four attempts to get as far as I could, and I couldn’t make out with it. Then I went and got another man to help finish it. I did not fall off that ladder. I came very near to it. It was not a warm day.”

The theory of the plaintiff’s case as presented on the trial was that he was suffering in December, 1901, on the occasion referred to in the testimony above quoted, from a hardening of the blood vessels of the body, known in medicine as arterial sclerosis, and that the strain to which he was subjected in lifting heavy timber ruptured a diseased blood vessel and produced a condition unfitting him for further labor at his trade.

In my opinion,'the testimony of the plaintiff does not "suffice to make out an accidental injury within the meaning of the defendant’s constitution. It amounts to nothing more than a statement that he suddenly became dizzy while he was engaged in endeavoring to put up the frame and the rafters upon an addition to a house in course of construction. Nothing that can possibly be called an accident in the ordinary sense of that term appears to ■have occurred on this occasion. The most that by the most liberal inference can be deemed to have occurred is that he. put forth an effort in the performance of his work, which proved too much for him in his physical condition as then existing, and that he was consequently unable to prosecute his work any further. This result was in no sense an accidental injury.

In Appel v. Ætna Life Insurance Company (86 App. Div. 83) the death of the insured was shown to have been due to an injury to the appendix, incurred while riding upon a bicycle, and the Appellate Division in the fourth department held that the death was not produced by accidental means within the purview of the policy. Mr. Justice McLennan, who wrote the opinion of the court, pointed out that the plaintiff sustained no fall Or shock, came into collision with nothing, went where he chose, selected his route, his wheel being at all times under perfect control, and brought into play only such muscles of the body, as he willed; and he concludes that the result of the ride, while extraordinary, in no manner proved that it was accidental. “ If the deceased had had a weak heart,” he asks, “ and had deliberately and in the usual, way walked rapidly up a hill, which caused the heart action to stop, could it be said that death was the result of accident ? ”

Another case in point is Southard v. Railway Passengers Assurance Company (34 Conn. 574), which was an arbitration before Judge Shipman of the United States District Court for the district of Connecticut. The claim was based upon a policy of indemnity against “bodily injuries, effected through violent and accidental means.” The insured person was injured internally by jumping in haste from a railroad car at a station, and' running a considerable distance. This action on his part was not necessary to his safety, but was voluntarily undertaken in order to keep an important engagement to meet another. Judge Shipman held that the injury was not caused by accidental means within the terms of the policy, saying: “ The degree of violence or force is not material, and had the insured, in this case, in jumping from the car, lost his balance and fell, or struck upon some unseen object and wounded himself, or, in running, had stumbled, or slipped on the ice, his injury might be attributed to accidental as well as violent means, and, assuming that there was no want of due diligence on his part, his' misfortune would have been covered by the policy. But, as I have already stated, the injury which he received was in no sense. the result of accident. He jumped from the car with his eyes open, for his own convenience, and not from any perilous necessity. He encountered no obstacle in doing so. He alighted erect on the ground, just as, he intended to do. * * . * No accident of any kind interfered with his movements, or, for an instant, relaxed his self controL All that he claims is, that, some hours after, it was discovered that a muscle in the walls of the abdomen had given way, under the, strain to which he had voluntarily put it, under circumstances free-from all peril or necessity. Assuming that this rupture was caused either by his jumping or running, or both, does not help the matter,, unless we call running and jumping accidents.”

Still another case, even more closely resembling the case at bar, is Feder v. Iowa State Traveling Men's Association (107 Iowa, 538), where the certificate holder, who had visited Denver while suffering from pulmonary consumption, died of a hemorrhage, immediately after having endeavored to close the shutters of a window by standing upon a chair and reaching upward for that, purpose. There was no evidence that he fell or slipped or lost- his. balance, or that anything occurred which was not contemplated by the deceased, except the rupture of the blood vessel which resulted in his death. The Supreme Court of Iowa held that the. rupture was not accidental, within the meaning of the certificate- and the constitution of the defendant providing for the payment of a benefit in case the death of the certificate holder resulted from an accidental cause. “ If a person suffering from some weakness, or disease,” said Robinson, Oh. J., “should subject himself to-conditions which would not injuriously affect persons in ordinary health, but would be dangerous to him, and injury result, it would not be due to an accidental cause. For example, if a person having-a diseased heart should take violent exercise voluntarily, and death should result, the cause would not be accidental.”

Many other authorities might be cited, a considerable number of which are referred to in this Iowa case, to show that the misfortune of the plaintiff herein cannot be attributed to an accident or an accidental cause in any legal sense of those terms. I am of opinion, therefore, that there was nothing to go to thé jury in the case at bar, and that the complaint should have been dismissed. It may be added that the evidence tending to show that the plaintiff really sustained any rupture of a blood vessel at the time of the alleged accident is extremely weak. His physician, who was called as a witness in his behalf and who examined him on January 10,1902 — less than six weeks after the occurrence narrated in the plaintiff’s testimony ■— expressed the opinion that the condition in which he found the plaintiff on the occasion of his examination was not caused by any rupture of a blood vessel in the preceding December I advise a reversal of this judgment.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  