
    Charles Naud, Plaintiff, v. King Sewing Machine Company, Defendant.
    (Supreme Court, Erie Special Term,
    June, 1916.)
    Workmen’s Compensation Law, §§ io, 20—hazardous employments — pleading—what states a cause of action — negligence.
    Section 10 of the Workmen’s Compensation Law after specifying what are to be deemed hazardous employments provides: “ Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and.in the course of his employment, without regard to fault as a cause of said injury.”
    Held, that a complaint alleging in substance that the defendant negligently failed to furnish and provide the plaintiff while in its employ “with reasonably safe implements, appliances, ventilators, fans, blowers or other devices * “ * for the carrying away of poisonous and dangerous gases and fumes; in permitting and allowing poisonous gases and fumes to accumulate and remain in and about the place in which this plaintiff was required to work, * * * and through the carelessness and negligence of defendant ” in other ways failing and neglecting to perform certain alleged duties for the proper and reasonable safety of the plaintiff, whereby it is alleged the plaintiff inhaled certain poisonous gases and fumes, which occasioned permanent injuries to his lungs and other portions of his body, states a cause of action.
    Under section 20 of the Workmen’s Compensation Law which requires the commission to determine the claim before it for compensation and declaring that its decision shall be final as to all questions of fact a finding that injury to the plaintiff was not due to accident is res adjudícala as to the fact as to whether the injury was accidental and precludes further inquiry on the point.
    If the compensation commission was in error in making the finding as to whether plaintiff’s injury was accidental, his only remedy was an appeal from such decision as provided by section 23 of said law.
    
      Demurrer by the plaintiff to a portion of the defendant’s answer to the plaintiff’s complaint.
    Jacobson & McCormick, for plaintiff in support of demurrer.
    Clinton B. Gibbs, for defendant, opposed.
   Wheeler, J.

The complaint sets forth a cause of action for alleged negligence under the Employers’ Liability Act of this state. It alleges in substance that the defendant negligently failed' to furnish and provide the plaintiff while in its employ ‘ with reasonably safe implements, appliances, ventilators, fans, blowers or other devices * * * for the carrying away of poisonous and dangerous gases and «fumes; in permitting and allowing poisonous gases and fumes to accumulate and remain in and about the place in which this plaintiff was required to work, * * * and through the carelessness and negligence of defendant ’ ’ in other ways failing and neglecting to perform certain alleged duties for the proper and reasonable safety of the plaintiff, whereby it is alleged the plaintiff inhaled certain poisonous gases and fumes, which occasioned permanent injuries to his lungs and other portions of his body. It is not necessary to go into further details as to the allegations of the complaint.

In its answer, the defendant makes certain denials of the allegations of the complaint, and alleges that the alleged injuries received by the plaintiff were due to the risks incident to his employment and known to him and that such risks were assumed by the plaintiff. Then follows the following allegation, to wit:

“ Fifth. For a further and separate defense herein the defendant alleges, upon information and belief, that the same plaintiff heretofore and on or about the 2nd day of February, 1916, in accordance with the provisions of the Workmen’s Compensation Law of the State of New York, presented to defendant the alleged claim referred to in the complaint for compensation according to the benefits described in said Workmen’s Compensation Law for said alleged injury claimed to have been sustained by him in the course of his said employment with the defendant, and that thereafter said State Workmen’s Compensation Commission, and on or about the 29th day of March, 1916, after a hearing duly had thereon, adjudged that the alleged accident claimed to have been sustained by the said plaintiff did not constitute an accident and adjudged that plaintiff’s said alleged claim be disallowed ; and that by said judgment this action beqame and was forever barred and foreclosed.”

To this clause or portion of the defendant’s answer the plaintiff demurs on the ground that the said defense is insufficient in law. It was conceded in the argument of this demurrer that the employment in which the plaintiff was engaged at the time he received the alleged injuries was one of the hazardous employments covered by the provisions of the Workmen’s Compensation Law.

If the plaintiff’s injuries were in fact occasioned owing to the negligence of the defendant in the particulars specified in his complaint, it is'difficult to see why the plaintiff should not have been given compensation under the provisions of the Workmen’s Compensation Law.

After specifying what are to be deemed hazardous employments section 10 of the act provides that:

“ Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury,” except in cases of' injuries resulting from intoxication or those wilfully and intentionally inflicted.

We fail to see therefore, if the allegations of the complaint are true, that the plaintiff’s injuries were the result of the defendant’s negligence, why the plaintiff was not fairly entitled to compensation for his injuries under the provisions of the Compensation Act, as a “ disability * * * resulting from an accidental injury, * * * arising out of and in the course of his employment.” Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; Matter of Winfield v. N. Y. C. & H. R. R. R. Co., 216 id. 284; Connors v. Semet-Solvay Co., 94 Misc. Rep. 406.

An “ accidental injury ” as used in this statute is clearly distinguishable from an injury in the nature of a vocational disease, sustained in the course of an employment, where from the inherent nature of the work disease is likely to be contracted. “Accidental ” has been defined as “ happening by chance, or unexpectedly taking place, not according to the usual course of events: casual; fortuitous.” North America Life & Accident Ins. Co. v. Burroughs, 69 Penn. 43; 8 Am. Rep. 212.

In insurance policies providing for an indemnity, “ accidental ” cause is defined as “ an event happening without human agency, or, if happening through human agency, an event which under the circumstances is unusual, and not expected to the person to whom it happens.”

Within these recognized definitions of the word ‘ ‘ accidental, ’ ’ if the injuries sustained by the plaintiff were occasioned in the manner alleged in the com-

plaint, they were clearly “ accidental ” within the meaning of the Workmen’s Compensation Law; and the plaintiff would have been entitled to compensation as provided in that act.

When therefore the compensation commission found and determined, after a hearing, that the plaintiff’s injuries were not the result of an “ accident ’ ’ it found by necessary implication, that such injuries were not due to the defendant’s negligence, or occasioned as alleged in the complaint.

The importance and legal significance of this adjudication by the compensation commission arises out of the fact that by the provisions of section 20 of the Compensation Law the commission is required to determine the claim made before it for compensation, after notice to the interested parties, and an opportunity to present evidence and be represented by counsel. The act then declares that “ The decision of the commission shall be final as to all questions of fact, and, except as provided in section twenty-three, as to all questions of law.” '

Therefore it is that the holding of the commission that the plaintiff’s injuries were not due to “ accident ” makes that question res adjudícala as to the plaintiff and the defendant in this action, and precludes a further inquiry into the questions of fact in this action.

The adjudication of the compensation commission was therefore properly set up in the answer of the defendant, as bar against the plaintiff in an effort to establish in this action that his injuries were occasioned by the negligence of the defendant, which our interpretation of the act would constitute an “ accidental injury.”

If the compensation commission was in error on the decision of the application made to it, the plaintiff’s remedy was to appeal from its decision to the Appellate Division of this court, as provided in section 23 of the Compensation Law.

I am therefore of the opinion that the demurrer of the plaintiff to the fifth clause of the defendant’s answer should be overruled, with costs of this demurrer.

Demurrer overruled, with costs.  