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ing (S. D. R., vol. 20, p. 446, July 1, 1919). The Appellate Division affirmed the award with majority and dissenting opinions, as follows:
MANDATTO V. HUDSON SHORING Co., 190 APP. Div. 71, DEC. 29, 1919.
LYON, J.: This appeal is taken upon the ground that the claimant was not at the time of receiving the injury an employee of the defendant, the Hudson Shoring Company, but was an independent contractor. The Fireproof Construction Company had a contract to erect a building in Brooklyn, N. Y. It had made a contract with the Hudson Shoring company to shore up the building on adjacent property. It had also made a contract with the claimant to excavate the cellar of the building. For the purpose of doing such work the claimant had a derrick and gasoline engine. The claimant made a verbal agreement with the Hudson Shoring Company that each would mutually assist the other; that the claimant might use the blocking and timbers the Hudson Shoring Company had upon the work, and in return therefor the claimant would use his derrick and engine in assisting it in its work. On June 27, 1918, the Hudson Shoring Company asked the claimant, in pursuance of the agreement between them, to use his derrick and engine to hoist for it a large beam which it was using in its shoring operations. While doing so, claimant's right foot became caught in the slack end of the ropes being used and was badly crushed, disabling the cliamant. The State Industrial Commission made an award of compensation against the Hudson Shoring Company and its insurance carrier, and continued the claim for further hearing. From such award this appeal is taken.
The claimant was rendering service to the Hudson Shoring Company at its request. While there was no agreement to pay him in money for the service rendered, yet he was to receive the use of blocking and timbers as the consideration therefor. He was not engaged in the performance of any work for himself, nor upon his contract for excavating, but while rendering such service he was an employee of the Hudson Shoring Company within the meaning of the Workmen's Compensation Law, section 3, subdivision 4 (Kucharuk V. McQueen, 221 N. Y. 607; De Noyer v. Cavanaugh, Id. 273; Dale v. Saunders, 218 id. 59; Powley v. Vivian & Co., 169 App. Div. 170.)
The award should be affirmed. All concurred, except II. T. Kellogg, J., dissenting, with a memorandum.
H. T. KELLOGG, J. (dissenting):
The claimant was an independent contractor, who had a contract to make an excavation which he was performing through his own labor and that of his men, by the use of a derrick, a gas engine and other equipment. He was asked by the Hudson Shoring Company, which also had a contract relating to the same job, to assist with his derrick in lifting a timber for that company. The claimant complied with the request, and in the course of lifting the timber, caught his foot in a rope and was injured. In all of the cases dealing with the subject of a general and a special employer there is invariably present a contract relationship of master and servant, of an employment for hire, a condition of subjection of one person as a servant to the orders and directions of another person as an employer. The general employer hires the servant for a consideration to be paid, and loans the servant so hired to the special employer, to whose orders he is sub
jected by the direction of the general employer, and the relationship of a subordinate to a superior continues as well as the payment of compensation. In this case the claimant had no general employer, and having none his services were not loaned by such an employer. A new relationship of master and servant was not created for the reason that the claimant was to receive no wages, and in no wise subjected himself to the orders of the Hudson Shoring Company as a subordinate servant subjects himself to the orders of a superior master. Therefore, I think the award should not have been made. Award affirmed.
By his conduct, whether in violation of his employer's rules or orders or not, an employee may take himself out of his employment and, therefore, out of the compensation law's protection. Or, the employment may be absolutely forbidden by the Labor Law, the Penal Law or other statute. In the former case, the compensation law has been held in numerous instances not to apply. In the latter, the court decisions have been conflicting. The two subjects, with illustrative cases, are presented under the title "Fault," Bulletin 87, pages 202-207, and this Bulletin, pages 156 and 160.
The special topic of Independent Contractors has to do with the definition of an employee and is presented under the title following.
C. INDEPENDENT CONTRACTORS
Compensation to artisans, such as bricklayers, carpenters, painters, etc., called in to erect, alter, repair or improve buildings used in hazardous employments has been resisted upon the ground (1) that such artisans are independent contractors or (2) that the work they do is not incidental to the hazardous employments of their employers and is not carried on by their employers for pecuniary gain. The first ground retains its force nothwithstanding amendments to the compensation law changing the definition of an employee. The Court of Appeals gave the independent contractor doctrine approval without opinion in Rheinwald v. Builders Brick & Supply Co., 223 N. Y. 572, March 19, 1918. The second ground stands nullified both by court decisions and by the amendments to the definition of an employee. Full history of the resistance to compensation of such artisans till June, 1918, has been given in Bulletin 81, pages 59-74, 133–141, and Bulletin 87, Part 1, pages 53-56, 99-110, 166–181. Further history of the independent contractor doctrine follows here.
Upon authority of the Rheinwald decision of the Court of Appeals, the Commission denied death benefits to the widow of a trucking contractor in Sinni v. Rosenthal Engineering Contracting Co., S. D. R., vol. 16, p. 420, Bul., vol. 3, p. 158, April 2, 1918; and the Appellate Division reversed awards to a licensed plumber injured while taking the head out of a barrel: McKibben v. Pakowski, File No. 61, June 21, 1917; 184 App. Div. 917, May 8, 1918, and to a paperhanger and painter injured while calcimining a ceiling: Hungerford v. Bonn, S. D. R., vol. 14, p. 720, Bul., vol. 3, p. 121, Jan. 2, 1918; 183 App. Div. 818, July 1, 1918. The court's decision was without opinion in the McKibben case and with opinion in the Hungerford case. Scope of the insurance contract and hazardousness of the employment figure in the Hungerford opinion, as well as the independent contractor question. The portion of it pertinent in this connection is as follows:
HUNGERFORD V. BONN, 183 App. Div. 818, July 1, 1918, in part.
The injured employee was a paperhanger and painter and had a small shop back of his house. He had one or more employees and carried compensation insurance upon them. He kept an automobile, which was used principally by him in his business in carrying his paint, ladders, paper and other material and workmen. He took contracts for work, or worked by the day for whoever required his services, receiving four dollars and eighty cents per day for himself and the same for his men. He furnished the materials, charging the value of them in his bill. He paid the men four dollars per day. The extra eighty cents per day paid for each man he figured compensated him for the use of his brushes, implements, the cost of compensation insurance and the incidents of the employment, with perhaps a little profit. He took a contract to perform certain work upon the Syracuse house for one hundred and seventy-five dollars, and it was understood that certain other work, the amount of which was unknown, was to be done for sixty cents per hour.
The respondent was an employer of labor, and his employees were protected by the insurance obtained by him. The employment was entirely casual in its nature and, within Matter of Rheinwald v. Builders' Brick & Supply Co. (223 N. Y. 572), must be considered as a special contractor and not an employee of the defendant. He worked for the defendant by the job and by the hour, in casual employments, and was not a regular employee.
May 8, 1918, and Sept. 11, 1918, the Appellate Division by divided court affirmed awards to the widows of two artisans killed by falls while at work upon smokestacks of industrial plants: Litts v. Risley Lumber Co., 184 App. Div. 919; Cummings v. Underwood Silk Fabric Co., 184 App. Div. 456. Decision in the Litts case was without opinion, but the Commission's ruling had been based upon the following opinion by Commissioner Lyon:
LITTS V. RISLEY LUMBER CO., S. D. R., vol. 14, p. 714, Bul., vol. 3, p. 119, Jan. 2, 1918.
LYON, Commissioner: The only ground for any claim that the deceased was an independent contractor is that he was to be paid a certain lump sum for his services. The testimony is that the fifty dollars was supposed to be fair compensation for the deceased's work at about his usual wages for such work. It will be noticed that not only did the employer furnish the material with which the painting was to be done, but the deceased did not and was not expected to himself employ any help, the necessary help being also furnished by the employer. I do not think the mere fact of a lump sum agreement being made instead of day's wages takes the workman out of the class of an employee within the meaning of the Compensation Law. The courts have held that piece workers, even those who take their work to their homes to do, are still employees within the meaning of the law, and I do not see why this case does not fairly come within the reasoning of such
cases. While the deceased not infrequently did work of this kind it is to be noted that he did not make a special business of it, did not advertise himself as carrying on a separate business and only seems to have made the bargain in the present case on an estimated wage basis. I, therefore, advise that the award be confirmed.
Decision in the Cummings case was with majority opinion and dissenting opinion as follows:
CUMMINGS V. UNDERWOOD SILK FABRIC CO., 184 App. Div. 456, Sept. 11, 1918. WOODWARD, J.: The death of the employee resulted from an accidental injury September 16, 1916, at the plant where a hazardous employment was carried on by the employer. He was, therefore, an employee within the meaning of subdivision 4 of section 3 of the Workmen's Compensation Law (Consol. Laws, chap, 67; Laws of 1914, chap. 41), as amended by chapter 622 of the Laws of 1916. (Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401; Matter of McNally v. Diamond Mills Paper Co., 223 id. 83.)
In Solomon v. Bonis (181 App. Div. 672; affd., 223 N. Y. 689) the injury occurred in a non-hazardous employment. It is not, therefore, an authority here.
Since the amendment of 1916 a casual employee in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment, is within the act. Under the circumstances of this case, the decedent was not an independent contractor, but in the ordinary employ of the appellant employer.
I am not unmindful of the difficulty in reaching correct decisions in the phase of the Workmen's Compensation Law here presented; but, after a careful study of the authorities, I am persuaded that both law and justice require an affirmance and I so recommend.
All concurred, except LYON, J., dissenting in opinion, in which H. T. KELLOGG, J., concurred.
LYON, J. (dissenting): The sole question presented by this appeal is whether the deceased was an employee of the Underwood Silk Fabric Company, Inc., or an independent contractor. He was a mechanic, and conducted a small shop in his barn known as "The Fixit Shop," in Canajoharie, N. Y. He had there a lathe and tools, and did some work in his shop. He also went about the neighborhood and fixed machinery. The plant of the Underwood Silk Fabric Company, Inc., was directly across the river at Palatine Bridge, N. Y. This company manufactured silk gloves and silk underwear. The president of the company, wishing a new smokestack erected at the plant, was recommended to Peter Cummings as a proper party to do the work. Mr. Cummings came to the plant, looked the work over and said he could do it. He was told to get what help he needed; furnish the appliances; take down the portion of the old stack; put up the new one, and when his work was done, present his bill and it would be paid. Cummings was to furnish what help he might need in addition to two men who were assigned to the work by the company. Cummings obtained the ropes and other necessary tackle for the work about the town. After his death the company returned them-hearing where he had borrowed them of the