Opinion
Argued May 2, 1927
Decided May 10, 1927
Appeal from the Supreme Court, Appellate Division, Third Department.
T. Carlyle Jones and Bernard J. Vincent for appellants. Albert Ottinger, Attorney-General ( E.C. Aiken of counsel), for respondents.
1. Heat prostration is an accidental injury arising out of and during the course of the employment, if the nature of the employment exposes the workman to risk of such injury. ( Matter of Madura v. City of New York, 238 N.Y. 214.) Although the risk may be common to all who are exposed to the sun's rays on a hot day, the question is whether the employment exposes the employee to the risk. ( Matter of Katz, 232 N.Y. 420.)
2. The employee did not give written notice of the injury within the time prescribed by section 18 of the Workmen's Compensation Law (Cons. Laws, ch. 67). The State Industrial Board excused the failure on the ground that the employer was not prejudiced thereby, because verbal notice was given to the employer and the employer had actual knowledge of the accident within thirty days thereafter. The employer's foreman testified that he understood the next day that the workman was taken home sick. A fellow employee testified that he notified the foreman the next day that the sickness was due to heat prostration. Verbal notice was, therefore, established. Actual knowledge of the accident at the time it occurred is not required where it appears that verbal notice is promptly given and the employer has not been prejudiced by the failure to give written notice. ( Matter of Finch, 244 N.Y. 557.)
3. Section 18 of the Workmen's Compensation Law does not require prior notice of injury by the employee in a death case. ( Matter of O'Esau, 186 App. Div. 556; affd., 227 N.Y. 597.)
4. An award for disability may be made after the death of the employee. So far as Matter of Terry ( 232 N.Y. 120) holds to the contrary, section 33 of the law has been amended. (L. 1922, ch. 615.) The award was properly made on the claim of disability on file at the time of death without requiring the widow to file a new claim.
The order should be affirmed, with costs.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN and O'BRIEN, JJ., concur; KELLOGG, J., not sitting.
Order affirmed, etc.