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he tried to open the window to permit the fumes to pass off does not warrant the assumption that the fumes were in any degree dangerous. All there is of this case is that an ordinary drug clerk, in the pursuit of his every day avocation, went into a toilet room in the rear of the store and attempted to open a window. In doing so he received an injury, just as he might have done if he had been a dry-goods clerk or a delivery boy in a grocery store. The hazard of this accident did not grow out of the occupation, except in the very remote sense that he would not have opened this particular window if he had not been employed in this particular store; and this court has recognized the application of the Baconian maxim that it were "infinite for the law to consider the cause of causes," and "contenteth itself with the immediate cause and judgeth of acts by that, without looking to any further degree." (Casterline v. Gillen, 182 App. Div. 105, 107.)
The award should be reversed and the claim dismissed. All concurred. Award reversed and claim dismissed.
Group 29. (1) Milling.-Operating a thresher may be incidental to the milling business. The Appellate Division's opinion of December 28, 1917, remitting the Vincent case for evidence upon this point has been given in Bulletin 87, Part 1, pages 80, 81. The Commission has since found that the threshing was incidental to the milling in Vincent's case and the Appellate Division has affirmed its award to him unanimously and without opinion: Vincent v. Taylor Bros., 180 App. Div. 818, Dec. 28, 1917; File No. 16862, March 21, 1918; 185 App. Div. 901, July 2, 1918.
(2) Storage. This group does not cover produce dealers who incidentally store their fruits, vegetables, etc. The Appellate Division has so held in reversing an award (S. D. R., vol. 16, p. 472, Bul., vol. 3, p. 199) and dismissing a claim and the Court of Appeals has so held in affirming the Appellate Division's order. The decision of the Court of Appeals was without opinion (225 N. Y. Rep. 668). The Appellate Division handed down opinion as follows:
DUGAN V. MCARDLE, 184 App. Div. 570, Sept. 26, 1918.
WOODWARD, J,: The claimant was employment by Harry J. McArdle, Inc., who appears to have been a produce dealer, engaged in handling apples, potatoes, cabbages, turnips and the hardy kinds of vegetables. The usual course of business appeared to be that at Morris avenue the employer maintained a small building, leased from the New York Central Railroad Company, where incoming goods were unloaded and placed in the building, from whence they were sold to grocers and produce merchants, or to such persons as desired to purchase in lots of not less than one-half barrel. A second place of business was maintained at Harlem river and One Hundred and Thirty-second street, and supplies were at times forwarded to this place from
the Morris avenue plant, though this appears to have been incidental. The claimant worked at the Morris avenue store, and was engaged at the time of the alleged accident in handling a bag of turnips, and it is claimed that while lifting this bag a particle of dirt got into his eye, subsequently becom ing infected, and resulting in the loss of the eye. The accident occurred in the morning, but the claimant worked all day, and the first complaint made to any one was to a fellow-employee at the close of the day's work. No notice of the alleged accident was given for more than one month after it occurred, though the employer's manager learned in some manner that the claimant was sick, not that he had suffered an injury, and the State Industrial Commission has found that no prejudice resulted to the employer or insurance carrier. The accident happened on November 14, 1916.
Unless this court was wrong in the cases of Walsh v. Woolworth Company (180 App. Div. 120), and Roberto v. Schmadeke, Inc. (Id. 143), both of which were decided subsequent to the amendment of group 29 of section 2 of the Workmen's Compsensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) by chapter 622 of the Laws of 1916, there is no foundation for this claim; the employer was not carrying on the business of "storage of all kinds and storage for hire" for his pecuniary gain. He was carrying on the business of a produce dealer, limited to a few domestic fruits and vegetables, for pecuniary gain, and whatever of storage was involved in the transaction, it was incident to this business of dealing in produce. There was a large sign over the premises reading, "Wholesale Vegetable and Fruit Market," and this definite announcement of the character of the business, in the absence of direct evidence that the business was actually that of storage for pecuniary gain, may not be disregarded. It is important to note that the Legislature, by chapter 705 of the Laws of 1917, amended group 30 by adding the words "wholesale groceries " and " poultry markets," thus indicating that it was not understood that the amendment of group 29 by chapter 622 of the Laws of 1916 had operated to reached the incidental storage of wholesale grocers or of poultry markets. Group 30 is the group in which we could naturally expect to find a provision relating to wholesale vegetable and fruit markets, along with wholesale groceries, poultry markets and fish markets, if the Legislature had intended to include this line of business, and we are not called upon to make strained constructions to enlarge the scope of the Workmen's Compensation Law beyond the limits fixed by legislation. The special mention of wholesale groceries, fish markets, meat markets, poultry markets, etc., would, under well-established rules of construction, exclude a wholesale vegetable and fruit market, or a mere dealer in a limited range of produce. A dealer of this character, who does not maintain a separate storage plant, cannot within any fair understanding of language, be held to be engaged in the business of storage for pecuniary gain, and until a higher authority has overruled the cases cited above, we shall be constrained to hold that a produce dealer is not within the language of the statute, and that his insurance carrier cannot be charged for an injury.
The award appealed from should be reversed and the claim dismissed. All concurred, except JOHN M. KELLOGG, P. J., dissenting. Award reversed and claim dismissed.
Group 30. Wholesale groceries.- This group covers sale of groceries in bulk to grocery stores and restaurants, though the seller conducts a retail store in connection: Jurgreau v. Scherzer, Case No. 58104, May 17, 1918; 185 App. Div. 920, Sept. 26, 1918.
Group 32. Manufacture of trunks. This group covers repair of trunks in retail stores belonging to the manufacturer of the trunks: Caplan v. Belber Trunk & Bag Co., S. D. R., vol. 18, p. 563, Bul., vol. 4, p. 54, Nov. 19, 1918; also repair of shoes in shoe shops: Santello v. Bell Bros., 188 App. Div. 946, May 20,
Group 34. Hotels.- Under § 3, subd. 4, as amended by L. 1916, ch. 622, accidental injury to a baker employed in a hotel bakery is compensatable: Parmas v. Hotel Plaza Operating Co., Case No. 3581; 184 App. Div. 921, May 21, 1918. The accident to Parmas occurred prior to amendment of this group by L. 1917, ch. 705. The fifty or more hotel rooms may be scattered under separate roofs upon the cottage plan: Flannery v. Gobel, S. D. R., vol. 17, p. 586, Bul., vol. 3, p. 220, June 11, 1918.
Group 41. (1) Definition of a vehicle.- A hand sled is not within the category of the vehicles described in Group 41, since it is operated solely by man power; therefore injury while operating a hand sled is not compensatable: Rice v. All-Package Grocery Stores, S. D. R., vol. 19, p. 473, Bul., vol. 4, p. 130, Feb. 25, 1919.
(2) Operation of vehicles.- A laborer whose sole duty is loading vehicles is not operating them; if injured while at work for an employer whose main business is not hazardous, his case is not compensatable, especially if his injury is not due to movement or defect of a vehicle. Thus, awards to employees injured while loading coal into vehicles have been reversed in Roberto v. Schmadeke, Death File, No. 28918, June 2, 1917; 180 App. Div. 143, Nov. 14, 1917, and Hassen v. Elm Coal Co., Bul., vol. 3, p. 98, Dec. 11, 1917; 184 App. Div. 715, Nov. 13, 1918. These accidents occurred before the inclusion of coal yards as hazardous under Group 19. Award was reversed in the Roberto case upon ground other than nonoperation of a vehicle; text of
the opinion is in Bulletin No. 87, Part 1, pages 63-65. Pertinent part of the opinion in the Hassen case is as follows:
HASSEN V. ELM COAL Co., 184 App. Div. 715, Nov. 13, 1918, in part.* COCHRANE, J.: Claimant was a laborer employed in a coal yard. He was injured by some coal falling on him while he was unloading it into a wagon from a railroad car standing in the yard of the employer. The employer and employee entered into an agreement on December 11, 1916, under section 20 of the Workmen's Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1915, chap. 167) for the payment of compensation, which agreement was in the form provided by said section and was subsequently approved by the Commission on March 7, 1917. By virtue of the statute (§ 20) such approval became an “award.” Payments were made under this award and subsequently the insurance carrier made an application to the Commission to vacate it on the ground that the claim was not within the statute and that the Commission was, therefore, without jurisdiction. This application was denied by the Commission and the insurance carrier appeals to this court.
The accident occurred November 25, 1916. At that time coal yards were not classified among the hazardous employments under section 2 of the Workmen's Compensation Law (as amd. by Laws of 1916, chap. 622) † and the employer was not engaged in conducting any hazardous employment under the act. It is suggested that because the claimant was loading coal into a wagon he was engaged in the operation of the wagon and that hence his claim falls within group 41 of section 2 of the act. It does not clearly appear what caused the coal to fall on the claimant, but there is no suggestion that any movement of the wagon or defect therein occasioned or contributed to the accident. Claimant was not a teamster nor in any way engaged in the operation of the vehicle. His duties confined him to the yard. He describes himself as a laborer and expressly disclaims that he was a driver or that he delivered coal. The case is distinguishable from Matter of Dale v. Saunders Brothers (218 N. Y. 59), where the claimant was a teamster operating a wagon and the work of loading the wagon was incidental to his duties in the operation thereof. Here the claimant was not engaged in the business of operating a vehicle as in the Dale case and his work in loading the wagon was not incidental to such operation but was his principal and in fact his only work at the time of the accident. The case is not distinguishable in this particular from Roberto v. Schmadeke, Ina (180 App. Div. 143), where the claimant was injured while loading coal into an automobile truck for delivery to customers. The claim was disallowed in that case although this particular point was not there raised. As well might it be urged that because the claimant was unloading coal from the railroad car into a wagon he was engaged in the operation of a railway, and so within group 1 of section 2.
Upon the same day that it reversed award in the Hassen case, the Appellant Division also reversed award in the case of a superintendent of milk routes run down by an automobile while alight
The rest of the opinion is in Bulletin 95, p. 249.
See § 2, Group 19, as since amd. by Laws of 1917, chap. 705.- REP.
ing from a street car with intent of going upon a milk route to instruct a new driver. It held that he was not operating a vehicle, with opinion as follows:
BALK V. QUEEN CITY DAIRY Co., 184 App. Div. 631, Nov. 13, 1918. LYON, J.: The deceased, Leo P. Balk, was employed by the Queen City Dairy Company as the superintendent of its wholesale routes. On October 20, 1916, he left his employer's place of business to go upon one of the routes where there was a new driver in order to familiarize the driver with the route. In order to reach the route he was required to travel by street railway car. In getting off the car a Ford automobile struck him in the left hip and ran him against a telephone pole, and he sustained injuries which resulted in his death November 2, 1916.
The award must be reversed for the reason that Leo P. Balk was not at the time engaged in a hazardous occupation. He was not in any way engaged in operating a wagon. (Matter of Glatzl v. Stumpp, 220 N. Y. 71.) He was merely alighting from a street railway car. In so doing he met with the accident which resulted in his death. He was not in the service of an employer whose principal business was carrying on or conducting a hazardous business.
The award must be reversed and the case dismissed. All concurred. Award reversed and claim dismissed.
Group 42. (1) Plastering.— Filling a hole with plaster incidentally to kalsomining is not plastering; and
(2) Construction, repair and demolition of buildings.— Kalsomining is not "construction, repair and demolition of buildings."
These two points are made by the Appellate Division as follows:
HUNGERFORD v. BONN, 183 App. Div. 818, July 1, 1918, in part.
He and his other employee were engaged in kalsomining the walls of a parlor, in the downstairs apartment, March 13, 1917. The appellant employer's wife saw a rough spot in the celing in the parlor, which she thought ought to be smoothed out before it was kalsomined. Her husband said, “* You can plaster,— can't you smooth that up; I cannot get a man for a small job like that.'" The claimant said, “I could, but I did not want to, as I did not have tools.' He went out and got some plaster and a trowel which was worn out," and while plastering the spot some of the lime fell into the claimant's eyes, causing the injury complained of.
It cannot be said that the appellant, with reference to this house, was engaged in "construction, repair and demolition of buildings," or in any other employment declared hazardous by the Workmen's Compensation Law. The fact that the kalsominer found it necessary to smooth the ceiling and fill a little hole with plaster in order to properly do his work, did not bring the