
    Before State Industrial Commission, Respondent. In the Matter of the Claim of Elizabeth Collins, Respondent, for Compensation to Herself and Children under the Workmen’s Compensation Law, for the Death of William J. Collins, v. The Brooklyn Union Gas Company, Employer, and Insurance Carrier, Appellant.
    Third Department,
    January 18, 1916.
    Workmen’s Compensation Law — evidence insufficient to sustain claim.
    The Workmen’s Compensation Commission has no authority to make an award in the absence of at least some evidence that the employee met with the injury while he was at work for the specified employer, and as a consequence of something that had a relation to the work of the employer, something done by him or by others while he was so employed.
    Hence, where a claim is made for the death of an assistant foreman, isa the employ of the street department of a gas company, who, while sweeping the paving where work was being done, suddenly fell to the street and died some days later, and the autopsy reveals that he received a fracture of the skull from the fall, and that the fall was in all probability due to an attack of cardiac syncope, to which he was predisposed, and there is no evidence to indicate that the deceased’s fall was due to anything except that while standing in the street he happened to have a sudden attack of cardiac syncope, and there is nothing to sustain a finding that his injury was “ accidental ” or that it arose “ out of” the employment, except that the sudden fainting spell came during working hours, the claim should be dismissed.
    Kellogg, P. J., dissented.
    Appeal by the Brooklyn Union Gas Company from an award of the State Industrial Commission made on the 13th day of July, 1915. '
    
      Cullen & Dyhman [Jackson A. Dyhman of counsel], for the appellant.
    
      Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], and Jeremiah E. Connor, counsel to State Industrial Commission, for the respondent.
   Woodward, J.:

The award made and the proceedings had in the State Industrial Commission with reference to this claim were alike predicated upon serious misunderstanding of the fundamental requisites of that fair arbitrament of “ the substantial rights of the parties,” which is directed by section 68 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). The proceedings before the Commission disclose a basic misapprehension as to the meaning and requirements of sections 21, 67 and 68 of the law, and the outcome is an award upon a claim which should have been dismissed.

The deceased was an assistant foreman in the employ of the street department of the Brooklyn Union Gas Company. His duties were negligible, so far as active physical work or exertion was concerned. While he was sweeping dirt and pebbles off the paving in the vicinity of the work being done by the gang of men to which he was attached, he suddenly fell to the street. Seventeen days later he died in the hospital, and an autopsy revealed that in his fall he had evidently received a fracture of the skull. The same autopsy disclosed that the fall had in all probability been due to an attack of cardiac syncope, to which the previous condition of the heart predisposed it. At the time the deceased was recovering his wits, after his fall to the pavement, he told a fellow-workman that “a weak spell must have come to him,” and on the following day he told an examining physician that “he had a dizzy spell.”

The claimant’s original theory had evidently been that this cardiac syncope and fainting was due to the presence of an excessive quantity of gas emanating from the trench near which the decedent was when he fell. The proof wholly failed to give any support to that theory, and the Commission based its award instead upon a finding that Collins “stumbled over some obstruction in the street and fell to the ground. ” All the evidence adduced before the Commission negatived the idea that there was any “obstruction in the street,” anything over which Collins did stumble or might have stumbled. There was no evidence adduced to indicate that Collins did stumble, or that he fell as a consequence of doing or while doing any particular act or while putting forth any particular exertion. There was not a vestige of evidence in the case to indicate that Collins’ fall was due to anything except that, while standing in the street, he happened to have a sudden attack of cardiac syncope, to which he was predisposed. There was nothing to sustain the finding that his injury was “accidental” or that it arose “ out of ” the employment, except in the sense and to the extent that his sudden spell of fainting came during working hours and had more serious consequences because at the time he was standing on a hard pavement.

The claimant in fact presented no “proof ” or “evidence” at all, and rested her case solely upon the “employee’s claim for compensation,” a paper so “fearfully and wonderfully” drawn that it did not correctly state the deceased’s employment or the street in which he fell, and left doubt for the most part whether the claimant’s husband was alive or dead at the time the paper was filled out. Even the allegations of this paper showed no “stumbling,” no “obstruction,” no “accident,” nothing arising “out of” the employment; the employer’s proofs disproved the ‘ ‘ gas ” and the ‘ obstruction ” theories, and indicated that there was no “stumbling.”

Nevertheless, at the close of the hearing, the deputy who sat in behalf of the Commission said: “I am going to deny your request and allow the claim on the basis that the accident arose out of and in the course of the employment, in the absence of proof to the contrary, and on the further ground that the testimony of the witnesses would indicate that there was an accident.”

This, and the Commission’s subsequent finding of fact as to an “accident” through “stumbling over some obstruction,” were, of course, as we have already pointed out, lacking in evidence tending to support the same, and, hence, fully reviewable here. It should, moreover, be said that the deputy commissioner incorrectly stated and applied the presumptions arising under section 21 of the act. There is nothing in section 21, or any other part of the act, which relieves a claimant from producing evidence that the injuries arose “out of and in the course of” an employment of the -injured person by the employer against whom the claim is directed. Once that evi-

dence of the employment, the injury in the course of it, the injury as result of something arising from the employment, is submitted, the first presumption enumerated in section 21 carries presumption of the Commission’s jurisdiction, the applicability of the statute, the “hazardous” character of the employment proved, and the inclusion of the work being done by the injured person at the time of the injury within the scope of an “employment,” enumerated and defined as “hazardous” (Matter of McQueeney v. Sutphen & Myer, 167 App. Div. 528; Matter of Kohler v. Frohmann, Id. 534), and the second, third and fourth items of section 21 carry presumptions covering, in the absence of substantial evidence to the contrary, the other conditions precedent specified in section 10. The Commission is not authorized, however, to make an award under the act in the absence of at least some evidence that the employee met with an injury while he was at work for the specified employer, and. as a consequence of something that had a relation to the work of the employer, something done by him or by others while he was so employed. The act does not undertake to make the employer an insurer of the life, health or regular heart action of an employee during the hours of labor, in the absence of proof that injury was due, for example, to a fall caused by cardiac syncope arising from over-exertion in the course of the employment.

The errors of this Commission were such as to fall clearly within the powers and duty of this court to curb and correct. The time has not yet come when money may be taken directly from an employer and indirectly from the patrons of a great public utility upon such a paucity of proofs and such a pretense of judicial findings as are revealed by this record.

The claim is remanded to the Commission; unless further and satisfactory proof is adduced, it should be dismissed.

All concurred, Lyon, J., in result, except Kellogg, P. J., dissenting; Smith, P. J., not being a member of the court at the time of the decision; Cochrane, J., not sitting.

Award reversed, and matter remitted to the Commission for its action.  