Opinion
276 A.D. 878 93 N.Y.S.2d 845 RUSO v. BEVERWYCK BREWERIES, Inc., et al. Supreme Court of New York, Third Department December 29, 1949
Workmen's compensation proceedings by Ethel Ruso, opposed by the Beverwyck Breweries, Inc., employer, and Interboro Mutual Indemnity Insurance Company, insurance carrier, for death of claimant's husband.
The Workmen's Compensation Board made a decision and award in favor of claimant and the employer and insurance carrier appealed.
The Appellate Division, Memorandum by Court, unanimously affirmed the decision and award, holding that amendment of claim which described cause of death to a prior hernia producing injury, so as to make claim cover whatever occurrence was established as being cause of death, was properly permitted.
J. M. Cullen, New York City, for Special Fund Conservation Committee.
Clark, Fox & LaGuardia, New York City (Arnold LaGuardia, New York City, of counsel), for appellants.
Nathaniel L. Goldstein, Atty. Gen. (Roy Wiedersum, Gilbert M. Landy, New York City, of counsel), for Workmen's Compensation Board.
Before FOSTER, P. J., and HEFFERNAN, BREWSTER, DEYO, and BERGAN, JJ.
PER CURIAM.
Appeal by an employer and its insurance carrier from a decision and award, dated January 27, 1948, made by the Workmen's Compensation Board which awarded death benefits to the claimant.
Claimant filed her claim for death benefits April 3, 1946, based upon her husband's death which occurred in his work for appellant employer on September 22, 1944, and she therein ascribed the cause of his death to a prior, 1943, hernia producing injury which had occurred while he was at work as a cooper in the same employment. In having appeared that the former injury had no causal relation to the death, the claim was amended at a hearing on May 23, 1947, so as ‘ to cover * * * whatever occurrence is definitely established as being the cause of death.’ Allowance of the belated filing of the death claim was duly made within two years after the fatality. The evidence sustains the findings that the physical stress and strain of unusual and out-of-routine work deceased was performing, and to which he was unaccustomed and which was occasioned by the accidental absence of a fellow employee, was a competent producing cause of his fatal attack of heart failure.
Appellants contend that the amendment of the claim was unauthorized as a matter of law. In one view of the matter the amendment had the effect of alleging a ‘ new cause of action’ viz.: death because of heart failure, accidentally sustained and arising out of and in the course of employment. If, therefore, the rules of substantive law as to pleading stale and barred causes applies the amendment was unauthorized. Harriss v. Tams, 258 N.Y. 229, 179 N.E. 476. But the claim has been duly constituted as one seasonably filed as a death claim. Its gravamen is an accidental death in employment and arising therefrom. The amendment did not alter this, its fundamental aspect and nature, and the issues as to whether the cause of decedent's death was related to his work on September 22, 1944, was litigated at hearings held prior to the amendment and without any objection by the employer appellant based on the statute of limitations.
The statute in general was designed ‘ to avoid legal terminology and the technicalities of law pleading’ , and to enable the lowly and uneducated to file the claim and give notice of injury. Kaplan v. Kaplan Knitting Mills, 248 N.Y. 10, 13, 161 N.E. 204, 205. Here jurisdiction was duly obtained in the matter of the claim as one based on death in employment. The toleration which has been extended in the variance between the initial pleading and the proof as to the actual cause of the death, was, we think, permitted in the functioning of the public policy which underlies the statute. Under the evidence here we do not regard it as transcending that ‘ fair liberality’ which has for its end result, ‘ the securing of benefits which it was intended to accomplish.’ Matter of Petrie, 215 N.Y. 335, 338,109 N.E. 549, 550. To hold otherwise we must apply a strict rule of substantive law applicable to pleadings in courts of law and equity, and thereby permit an employer to escape being adjudged as to his liability for compensation by force of a rule of limitations in a statute which in general was invoked seasonably. As to the allowance of the amendment, evidence sustains the Board's holding that the employer was not thereby unduly prejudiced as to any defense which it had upon the merits.
Decision and award unanimously affirmed with costs to the Workmen's Compensation Board.