Opinion
December 20, 1961
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal from a decision of the Workmen's Compensation Board which determined that decedent's fatal accident arose out of and in the course of his employment and was not the result of suicide. The board found upon substantial evidence that on the day of his death decedent, a maintenance foreman, reported for work as usual and was last seen alive on the second floor of the employer's building, apparently testing a machine; that shortly thereafter his body was found on the driveway of the employer's premises; and that he had either fallen or jumped from the roof. The proof from which appellants would infer suicide was found by the board insufficient to overcome the presumption of a compensable accident and that against suicide. (Workmen's Compensation Law, § 21, subds. 1, 3). There was proof that decedent and other employees had been seen on the roof at times and there was, indeed, some proof, though it was contradicted, that decedent's duties of inspection required him to go there occasionally. This testimony and the proof of the surrounding circumstances and physical location warranted the finding of industrial accident. ( Matter of Malloy v. Cauldwell Wingate Co., 284 App. Div. 798, 799, affd. 308 N.Y. 1031.) Additionally, there was proof that decedent was subject to dizziness and blackout spells. There was disputed proof that decedent had been depressed and worried and (as in Graham, infra, p. 144) there was "hearsay and opinion evidence", including that of the medical examiner and a history, of unknown source, taken at the time of a hospital admission some time before, from which suicide might be inferred. In this conflict of inferences, the question of motivation was peculiarly within the board's province, as was recognized in Matter of Graham v. Nassau Suffolk Lighting Co. ( 308 N.Y. 140, 145), in which the proof was comparable in many respects to the record here, and in which, indeed, the physical circumstances (as detailed in the opinion in the Appellate Division [ 283 App. Div. 228] ) would seem to render accident more unlikely than in this case. Appellants rely strongly on Matter of Mengele v. Liebmann Breweries ( 13 A.D.2d 195) but there we found that an accidental fall was a "physical impossibility" while here the parapet was relatively low and, further, did not constitute a complete barrier, as a ramp extended to the top of the parapet at the point above which decedent's body was found. It cannot be held, upon this record, that the board was not warranted in finding that the presumptions had not been countered by substantial evidence. Decision and award affirmed, with costs to the Workmen's Compensation Board.