Broderick v. Liebmann Breweries, 277 App. Div. 422, 100 N. Y. S. 837 (3d Dept. 1950

Fleming, Robert B.

English

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Buffalo Law Review Volume 1 Number 1 Article 12 4-1-1951 Administrative Law—Workmen’s Compensation—"Accidental Injury" as a Question of Fact Robert B. Fleming Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Administrative Law Commons, and the Workers' Compensation Law Commons Recommended Citation Robert B. Fleming, Administrative Law—Workmen’s Compensation—"Accidental Injury" as a Question of Fact, 1 Buff. L. Rev. 43 (1951). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol1/iss1/12 This Recent Decision is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. RECENT DECISIONScase becomes much more like an election rather than an action to set aside an"illusory" transfer; it becomes an election in fact for most purposes. Buteven so, the widow remains excused from the procedural requirements of § 18,that is, from actually filing an election and doing so within six months ofprobate.This decision may be termed just, considering the statute very generally.It should not be considered sound since it was made possible by a reading ofthe authorities, especially Krause v. Krause, so narrow as to vitiate their spirit.Further, the result was achieved at the expense of additional illogical inroadsupon the statutory scheme of testamentary disposition, a course the courtswould do well to avoid.Samuel R. MiserendinoRobert B. FlemingADMINISTRATIVE LAW- WORKMEN'S COMPENSATION"ACCIDENTAL INJURY" AS A QUESTION OF. FACTDecedent steamfitter having a congenial aneurysm of a cerebral arterycollapsed immediately after emerging from a boiler which he had been clean-ing. The temperature inside the boiler was above normal and the workingspace limited; the work was such that it had to be performed in twenty tothirty minute relays. Death was caused by rupture of the defective artery andsubsequent hemorrhage. The employer contended death was due to a cQn-dition, not an accident. Held: award of death benefits affirmed; whether aninjury was accidental, and thus compensable within the meaning of § 2(7),N. Y. Workmen's Compensation Law, is a question of fact on which the de-cision of the Workmen's Compensation Board is conclusive. Broderick v.Liebmann Breweries, 277 App. Div. 422, 100 N. Y. S. 837 (Nov. 1950) [allcompensation appeals are handled by the 3d Department.]In determining the appropriate scope of review for a finding on a mixedissue of law and fact, the court here adopted a fresh approach to compensationappeals, one that emphasizes the administrative law aspect of compensation.Mixed issues have given the courts difficulty because the statutory directivesregarding review are predicated on the traditional law/fact clasiification: factfindings of the Board are conclusive on review, but the courts are free to cor-rect errors of law. N.Y. Work. Comp. Law, § 20, see BENJAMIN, ADMINISTRA-TIVE ADJUDICATION IN NEw YORK, first volume, p. 347. The substantial evidencetest is applied to fact findings, however, so that they are conclusive only if thereis substantial evidence to sustain them, and if that is determined the courts willnot reweigh the evidence. Matter of Helfrick v. Dahlstrom Metallic Door Co.,256 N. Y. 199, 176 N. E. 141 (1931), affd, 284 U. S. 594 (1931). The lawversus fact distinction may be of little use however when the disputed issue is43BUFFALO LAW REVIEWmixed, i.e., when the Board in order to make a decision on a given fact situationmust of necessity interpret the general terms used by the statute. The compen-sation law like most others requires much interstitial supplementation, a pro-cess which frequently becomes inmeshed with fact finding. The statute givesno directions regarding the handling of such issue or the proper scope ofreview. It has been urged that the courts would often do well to treat mixedissues as if they were merely factual, considering the "particularized con-clusion" as largely conclusive in reliance on the special competency of theagency to perform what is essentially an administrative task. See Stem, Re-view of Findings of Administrators, Judges and Juries; A ComparativeAnalysis, 58 HARv. L. REv. 70, 93-109 (1945).The disputed issue of the instant case is typical of the mixed type. Theappellant contended that decedent's death was obviously due to a condition anddisease, and was not accidental within the meaning of N. Y. Work. Comp. Law,§2(7), which defines compensable injuries as meaning only "accidental" in-juries. Difficulty in applying this definition has occasioned the appeal of manycases in which there were not the usual trauma but rather disabilities resultingfrom heart strain, heat prostration and the like. One of the earliest decisions,Uhl v. Guarantee Const. Co., 174 App. Div. 571, 161 N. Y. Supp. 659 (1916)(pre-existing heart condition, collapse in course of usual but strenuous work),expressly treated the issue as if it were factual; the court declined to determinefor itself whether the injury was accidental and merely applied the substantialevidence rule. Such judicial restraint, however, became the exception ratherthan the rule, as over the years the courts usually treated the issue as one of law,relying on the many precedents to be found in an ever-growing body of caselaw. See Meriam and Thornton, "Accidental Injury" in the Court of Appeals,16 BROOKLYN L. REv. 203-216 (April 1950), setting out the development by thecourts of the substantive law on this issue using familiar common law tech-niques. The leading case is Matter of Lerner v. Rump Bros., 241 N. Y. 153,145 N. E. 334 (1925), wherein an accident was defined as something extraordi-nary or catastrophic, assignable to a determinate or single act, identified inspace or time. This requirement was gradually relaxed, the courts sometimestreating the issue as if it were factual in order to facilitate a desired substan-tive change. See e.g., Bohm v. L. R. S. & B. Realty Co., 264 App. Div. 962,37 N. Y. S. 2d 173 (1942), aff'd, 289 N. Y. 808, 47 N. E. 2d 52 (1943). By 1950the courts were stressing the element of causal relation rather than the neces-sity of meeting a particular legal definition of "accident." Merian and Thorn-ton, supra, p. 205.Broderick v. Liebmann Breweries, the principal case, held that the issueas to whether there was an accident "almost invariably falls within the realm offact, and if the facts and circumstances sustain, upon any reasonable by,pothesis, the conclusion that an average man would view the event as acci.RECENT DECISIONSdental, then the determination of the Board is final." The court concludedthat this restricted type of review was required by a dictum in Matter of Massev. James H. Robinson Co., 301 N. Y. 34, 35, 92 N. E. 2d 56, 57 (April 1950),to the effect that, whether on event is to be found an industrial accident is notto be determined by any legal definition but by the common sense viewpointof the average man. The Court of Appeals in the Masse case, reversing theAppellate Division to reinstate an award, characterized this dictum as theproper "basis for decision" on this issue. The Broderick holding in its interpre-tation of the Masse dictum squarely places the accident issue in the category offact for review purposes. This decision accords proper respect to the expert-ness of the agency and to its position in dealing with claimants at first hand,factors especially deserving of consideration in compensation cases involvingdifficult medical questions. The substantial evidence test, with its inherentflexibility, will still allow the courts freedom enough to correct injustices andinadvertencies.It should be noted that if mixed issues are treated as if factual the courtscan not expect the Board's decisions to be consistent, as the very nature offact finding precludes consistency. See the excellent discussion of this pointin McSweeney v. Hammerlund Mfg. Co., 275 App. Div. 447, 90 N. Y. S. 2d 347(1949) (occupational disease case), and see, e. g., Chiara v. Villa CharlotteBronte, 273 App. Div. 834, 76 N. Y. S. 2d 59, aff'd, 298 N. Y. 604, 81 N. E. 2d332 (1948) (inconsistent denial of award by Board on "heart" case affirmed).Of course the strong and proper tendency of the Board to compensation dis-abled claimants whenever possible obviates much inconsistency in the way ofdenying awards.The evidentiary facts in the Broderick case were not in dispute, only theproper inferences to be drawn therefrom. It has been said in compensationcases involving other mixed issues that where the facts are undisputed onlyquestions of law remain. Matter of Martin v. Plaut, 293 N. Y. 617, 59 N. E. 2d429 (1944) (whether injury arose out of and in course of employment);Christiansen v. Hill Reproduction Co., 262 App. Div. 379, 29 N. Y. S. 2d 24(1941), aff'd, 287 N. Y. 690, 39 N. E. 2d 300 (1942) (whether injury aroseout of and in course of employment); Bauss v. Consolidated Chimney Co.,270 App. Div. 70, 58 N. Y. S. 2d 717 (1945) (geographical jurisdiction ques-tion). An old "accident" case is directly contrary. Campbell v. Clausen-Flanagan Brewery, 183 App. Div. 499, 171 N. Y. Supp. 522 (1918). But cf.Welz v. Markel Service, 270 App. Div. 15, 17, 19, 58 N. Y. S. 2d 476, 478, 479(1945), affid, 296 N. Y. 640, 69 N. E. 2d 682 (1946). To hold for reviewpurposes that only questions of law remain when the facts are undisputed goesin the teeth of the judicial process exemplified by the instant case. The casescited for this view are not authoritative, however, because they were concernedwith other issues, ones susceptible to court intervention, i.e., issues where theBUFFALO LAW REVIEWlaw factor of the mixed issue may be readily separable. In this light it isworth noting that in three of these cases the court was reversing the Board tofind for the claimant; in the fourth (Martin v. Plaut) the Court of Appeals wasfaced with an affirmed finding from below so that only questions of law couldbe considered. And it is generally held in compensation that inferential factsare just as "factual" for review purposes as are evidentiary ones, E.g. Gordonv. New York Life Ins. Co., 300 N. Y. 652, 90 N. E. 2d 898 (1950) (extremecase).The bare result of the principal decision is not noteworthy, considering theprior "heart" cases, but the technique or review employed is significant, itsexpress adoption being highlighted by the failure of the court to cite even oneprecedent for substantive authority. The courts are not thus abdicating theirdecisive role as regards legal questions; rather they are placing increased re-liance on the agency, and properly so, considering the remedial and largelynon-political nature of compensation and the record of honest administrationachieved by the Board.- Objectively considered, the decision means at leastthat within the substantive limits defined by existing case law the Board's con-clusion on the "accident" issue will control; very likely it means that the sameview will be taken when the Board ventures into uncharted areas beyond thoselimits, a result to be welcomed. The limited review applied here may be a con-comitant of the emphasis on casual relation already noted. The decision is notsurprising as there has been a growing tendency of the courts to discuss alltypes of compensation issues in "fact" terms. This case, however, presents thedesirable review process in full form, worthy of careful consideration andwide application.Robert B. FlemingTAXATION - FEDERAL INCOME TAX - INTEREST IN LAWPARTNERSHIP AS A CAPITAL ASSETMax Swiren, member of a Chicago law firm, acquired by a series of pur-chases a 30% interest in the partnership for a net total outlay of some $18,000.In 1944 he valued the interest at about $43,000, of which $35,000 representedhis allocable share of unpaid fees, billed and unbilled. Swiren sold his interestthat year for $40,000. In filing his income tax return for 1944, on a cash re-ceipt basis, he reported as capital gain the sale price less his investment. TheCommissioner of Internal Revenue contended that the amount received wasordinary income. The Tax Court, after allowing taxpayer to recover his capitalinvestment tax-free, held that so much of the remaining consideration as rep-resented unpaid fees was ordinary income. On appeal, the United StatesCourt of Appeals reversed (2-1), holding that the partnership interest was acapital asset and the gain a capital gain. Swiren v. Commissioner, 183 F. 2d656 (7th Cir. July 1950), cert. denied 340 U. S. 912, 71 S. Ct. 293 (Jan. 1951).

Administrative Law—Workmen’s Compensation— Accidental Injury  as a Question of Fact

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Administrative Law—Workmen’s Compensation— Accidental Injury as a Question of Fact

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