Claim of Cummiskey v. Twentieth Century-Fox Film Corp. , 3 A.D.2d 877 ( 1957 )

Appeal by claimant from a decision of the Workmen’s Compensation Board disallowing a claim for death benefits. Decedent died of a heart attack moments after supervising the taking of motion pictures of baseball players about to commence the opening game of the season. The claim rests on the contention that death was caused by emotional stress engendered by an argument said to have been had by decedent with a “ still ” photographer who, for the purpose of taking a picture, ran in front of the picture and sound equipment which decedent’s crew had set up and thus obstructed their work. The board found that death was not the result of accident. It is clearly inferable from the language of the memorandum decision that the board found that no argument occurred and, therefore, did not reach the medical question of causation. The testimony as to the supposed argument was elicited from members of the crew under decedent’s supervision. Two of them had signed statements containing no reference to any argument and the investigator who took the statements testified that one of these witnesses said that he had related “ the complete story ”, as embodied in the statement, which he read and signed. The investigator testified further that no witness interviewed mentioned any argument. One of the players photographed, who was at decedent’s side when he collapsed, testified that he observed no argument. A public relations man, also present, testified to the same effect. Neither would say, however, that no argument occurred. The board chose to reject the testimony of claimant’s witnesses as it was entitled to do. (Matter of Bam v. Gunderman é Sons, 283 N. Y. 459.) Thus the only possible basis for a finding of accident disappeared. Decision unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Gihson, JJ. [See post, p. 960.]