Opinion
Argued February 15, 1967
Decided March 2, 1967
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
John F. McDonough for appellants. Louis J. Lefkowitz, Attorney-General ( Morris N. Lissauer, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen's Compensation Board, respondent.
While attending a party for salesmen given by the employer to observe the end of a sales contest, claimant's husband became ill during a strenuous dance with claimant, who was also employer's guest. Later that night, after he had gone home, he died.
There is competent medical opinion in the record that the physical effort in the dance induced a coronary occlusion and had an accidental and causal relationship with the death.
The employer's dinner had been announced to all salesmen by the sales manager and all salesmen, including the decedent, were expected to attend it. The entire expense was borne by the employer and the executive personnel of the employer were all present. Such an event, initiated and sponsored by an employer for employees and intended to promote salesman motivation to sell automobiles, is deemed to be part of the employment ( Matter of Tedesco v. General Elec. Co., 305 N.Y. 544; Matter of Wilson v. General Motors Corp., 298 N.Y. 468; Matter of Kenney v. Lord Taylor, 227 App. Div. 831, affd. 254 N.Y. 532).
Symptoms of decedent's illness as observed immediately after the dance, itself described as "vigorous" and "strenuous", were that he "was white" and "wasn't talking very much and wishing he could go home" and his walk was unsteady.
Although decedent drove his car home and drove a baby-sitter to her home, an acute heart attack began at his home about 2:10 A.M. and he died within a short time thereafter. A cardiologist testified to an opinion that decedent suffered a coronary occlusion and myocardial infarction as a result of the strenuous dance earlier in the night. Thus, the proof falls within permissive limits of accidental attribution ( Matter of Masse v. Robinson Co., 301 N.Y. 34; Matter of Burris v. Lewis, 2 N.Y.2d 323; Matter of Woodworth v. County of Onondaga, 20 A.D.2d 945, mot. for lv. to app. den. 14 N.Y.2d 489).
To the argument relevant to those facts, appellant adds an additional ground for reversal — an asserted claim that decedent "Attempted sexual intercourse which he interrupted because he `felt sick'".
In cross-examining the widow on the events of this night, appellants' counsel asked a question which he described as "a difficult experience for you", i.e., whether after decedent got home he engaged in sexual intercourse. To this, the witness answered a categorical "No." He then asked the question did "you" attempt it. To this, the answer was a categorical "Yes", and she added: "He said `I can't'. He turned over and said `I feel sick' and had to get up."
This is the entire factual basis of appellants' argument on this point. Nothing is shown as to what the actual physical occurrence constituting the "attempt" was. Appellants had opened up this subject. If they intended to show the existence of exertion they were not prevented from showing it if there had been any. They abandoned the inquiry without showing any actual fact on which the board could base a finding; and the finding of the board on the general fact issue has gone against them.
The order should be affirmed, with costs.
We dissent and vote to reverse and to dismiss the claim. Even if dancing the twist at the close of a long evening be regarded as arising out of and in the course of his employment, there is no substantial evidence that this was the cause of his death. His wife, who is the witness to his alleged indisposition at the party, raised no objection to his driving the automobile home after the party (although she had an operator's license), or to his afterwards driving the baby-sitter home, all of which was done when he had apparently suffered no previous disabling ill effects. The onset of the heart attack did not occur until after he had returned to his home the second time, and after he had retired for the night and after he had attempted to perform the marital act. Under these circumstances, to ascribe the cause of his death to the company party is without foundation in the record and the claimant's experts' opinion to that effect is pure speculation. This was not an industrial accident from the "common-sense viewpoint of the average man" ( Matter of Masse v. Robinson Co., 301 N.Y. 34, 37).
Chief Judge FULD and Judges BURKE, KEATING and BREITEL concur with Judge BERGAN; Judges VAN VOORHIS and SCILEPPI dissent and vote to reverse and to dismiss the claim in a memorandum.
Order affirmed, with costs to respondent Workmen's Compensation Board.