Cornell University Law Library. THE GIFT OF KFN5310!c7l" ""'"""'>' """"' ^'"RiSXStMi'iii'i?!'''''iyi workmen's compensa 3 1924 022 792 406 ((orti^U Earn i'rljflol ilthtarg The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022792406 EMPLOYERS' Liability WORKMEN'S Compensation AND Liability Insurance THE DISTINCTION BETWEEN THE LIABILITY TO PAY COMPENSATION AND THE LIABILITY FOR DAMAGES FOR IN- JURIES WHICH ARE NOT WITHIN THE COMPENSATION ACT OF NEW YORK STATE STATE COMPENSATION INSURANCE COMPARED . WITH LIABII^ITY INSURANCE BY STOCK COMPANIES AND MUTUAL ASSOCIATIONS The Workmen s Compensation Law, Annotated Jeremiah F. Connor Formerly Counsel to the State Workmen's Compensation Commission and the State Industrial Com- mission of the State of New York Price $5.00 THE SPECTATOR COMPANY Chicago Office: 135 William Street, Insurance Exchange. NEW YORK. ■ ICOEYRIGHT, 1916, BY THE SPECTATOR COMPANY, NEW YORK. INTRODUCTION The Workmen's Compensation Law of the State of New York (Chapter 67 of the Consolidated Laws, as enacted by Chapter 816 of the Laws of 1913 and re- enacted by Chapter 41 of the Laws of 1914, with amend- ments) made a radical change in relation to the liability of employers for damages because of accidental injuries. The result has led to much confusion between injuries which are compensatable and injuries which may be made the basis of damage suits. Part I of this work is intended to relieve this con- fusion. The compensation act is explained and cases of dual liability and optip^fi^ ^e^e^s, as well as cases which are not covered in any manner by the compensa- tion law, are classified and supplemented by such annota- tions of authorities as are available. Part II is devoted to the subject of compensation and liability insurance. Here again confusion exists more particularly in relation to state insurance covering the payment of compensation. Nothing has been attempted in this connection except to show the nature of this and other forms of insurance, to explain the so-called im- munity claimed on behalf of State Fund insurance, and to point out that the State Insurance Fund is created for the purpose of insuring employers against the pay- ment of compensation, and under its contract or insur- ance policy, only insures against compensation liability. Part III contains the workmen's compensation law as amended, including the amendments made by the Legislature of 1916. It is annotated with all decisions of the Courts under the New York act and with decisions of the Workmen's Compensation Commission and its successor, the State Industrial Commission. The ap- pendix contains the Employers' Liability Act of New York State, the elective compensation law, and the pro- visions of the State constitution affecting the liability of INTRODUCTION the employers and the rights of employees, together with the Federal Employers' Liability Act. The author was chief counsel for the State Work- men's Compensation Commission of the State of New York from the time the compensation law became ef- fective, July 1, 1914, until this Commission was super- seded by the State Industrial Commission, June 1, 1915, and, was chief counsel for the State Industrial Commis- sion until January 1, 1916. During this period of time, the author had complete charge of all legal matters re- lating to the compensation law and feels that he has had a part in the growth and development of the judicial decisions under which the Act has been interpreted. It has been the aim of the author to make this volume useful in the practical application of compensation legis- lation to the liability of employers and the rights of employees both in relation to compensation and to in- juries which are not covered by the compensation act, and to explain in a practical manner the distinction between the different forms of insurance under which employers may give security for the payment of compensation and relieve themselves from further liabil- ity in cases which are not the subject of compensation. The distinctions between the different forms of Em- ployers' Liability are based to a large extent upon the law in New York State. They apply to the subject generally, however, and especially to those states having compensation statutes similar to the New York Act. The part devoted to state insurance applies to all states where the State Insurance Fund is created to operate in competition with other forms of insurance except insofar as the wording of the statutes may be different. The annotations to the compensation law cover a wide field. The cases passed upon by the Courts include those in which no opinions were written. Many of the decisions by the Commission are unreported, but all will be found useful in the determination of claims not only in New York State but also under compensa- tion statutes generally. May 1, 1916. Jeremiah F. Connor, Oneida, N. Y. ABBREVIATIONS. NOTE — The abbreviations used in this work refer to the following reports, viz. : APP. DIV. — New York Supreme Court, Appel- late Division. ATL. REP. — Atlantic Reporter. B. W. C. C. — Butterworth's Workmen^s Compen- sation Cases (English). FED. REP. — Federal Reporter. MASS. — Masachusetts Reports. N. E. — Northeastern Reporter. N. C. C. A. — Negligence and Compensation Cases, Annotated. N. Y. — New York Reports. N. Y. ST. DEP. REP.— Neav York State De- partmental Reports. N. Y. SUPP. — New York Supplement. PAC. REP. — Pacific Reporter. U. S. — United States Supreme Court Reports. W. C. C. — Workmen\s Compensation Cases (Eng- lish). TABLE OF CONTENTS PART I WORKMEN'S COMPENSATION AS DISTIN- GUISHED FROM EMPLOYERS' LIABILITY Sec. 1. History of Compensation Legislation in New York 4 2. Plan and purpose of the Compensation Law 5 3. Employments subject to the Act 7 4. Injuries subject to the Act 8 5. Compensation and death benefits 11 6. Employees not within the Act 12 7. Dual employments 13 8. Doubtful employments 16 9. Employments expressly exempted 18 10. Non-hazardous employments 20 11. Casual employments 23 12. Salesmen 24 13. Injuries resulting in disfigurement 26 14. Dependents who receive no compensation 28 15. Injuries received by office employees 29 16. Officers op corporations 30 17. Damages for loss of services 32 18. Occupational diseases 32 19. Injuries received outside the State 34 20. Admiralty jurisdiction 36 21. Admiralty jurisdiction — Optional remedy of em- ployees 38 22. The Federal Employers' Liability Act — Railroad Employees 39 23. Independent contractors 43 24. Employees injured through negligence of third persons 45 vii TABLE OF CONTENTS PART II COMPENSATION AND LIABILITY INSURANCE PAGE Sec. 25. Security for payment or compensation 51 26. Self-Insurance 54 " 27. Insurance by Stock Companies and Mutual Asso- ciations 64 " 28. The State Insurance Fund — Coverage 57 " 29. State Insurance Fund — Release from payment op compensation 59 " 30. State Insurance Fund — Immunity 62 " 31. Administration of the State Insurance Fund. . . 65 PART III The Workmen's Compensation Law, Annotated 73 Rules Adopted under the Compensation Law 175 Index of Hazardous Employments 195 APPENDIX Employers' Liability Act and Elective Compensation Law 205 Railroad Law, Section 64 — Injuries to railroad employees 216 State Constitution, Art. 1, Sec. 19 — authorizing the Com- pensation Law 218 State Constitution, Art. 1, Sec. 18 — relating to death cases 218 Code of Civil Procedure, Sec. 1902 — relating to death CASES 219 Federal Employers' Liability Act 220 TABLE OF CASES PENDING IN UNITED STATES SUPREME COURT. The following cases arising under the Workmen's Compensation Law of the State of New York are pend- ing in the United States Supreme Court. The cases had been argued but had not been decided at the time this work went to press. They involve the constitu- tionality of the law generally and its application to in- terstate commerce, including railroad employees and employees of vessels : JENSEN VS. SOUTHERN PACIFIC CO., 215 N. Y. 514. WALKER VS. CLYDE S. S. CO., 215 N. Y. 529. WINFIELD VS. NEW YORK CENTRAL & HUDSON R. R. R. CO., 168 APP. DIV. 851; 153 N. Y. SUPP. 499; 216 N. Y. 284. WHITE VS. NEW YORK CENTRAL & HUD. R. R. R. CO., 216 N. Y. MEMO. 653. ^ PART I WORKMEN'S COMPENSATION AS DISTINGUISHED FROM EMPLOYERS' LIABILITY. PART I WORKMEN'S COMPENSATION AS DISTIN- GUISHED FROM EMPLOYERS' LIABILITY. Sec. 1. History of Compensation Legislation in New York. 2. Plan and purpose of the Compensation Law. " 3. Employments subject to the Act. " 4. Injuries subject to the Act. 5. Compensation and death benefits. " 6. Employees not within the Act. " 7. Dual employments. " 8. Doubtful employments. " 9. Empi,oyments expressly exempted. " 10. Non-hazardous employments. " 11, Casual employments. " 12. Salesmen. " 13. Injuries RESULTING IN DISFIGUREMENT. " 14. Dependents who receive no compensation. " 15. Injuries received by office employees. " 16. Officers of corporations. " 17. Damages for loss of services. " 18. Occupational diseases. " 19. Injuries received outside the State. " 20. Admiralty jurisdiction. " 21. Admiralty jurisdiction — Optional rem- edy OF EMPLOYEES. " 22. The Federal Employers' Liability Act — Raii,road employees. " 23. Independent contractors. " 24. Employees injured through negligence of third persons. 4 wokkmen's compensation § 1. History of compensation legislation in New York. The legislature of New York adopted a compul- sory compensation act in 1910 which applied to certain dangerous employments. This law was immediately at- tacked in the Courts upon the ground that it authorized the taking of property without due process of law in vio- lation of the 14th amendment to the Federal constitution and in violation of Section 6 of Article I of the State Constitution. It was declared unconstitutional by the Court of Appeals in the case of Ives vs. South Buffalo Railway Co., 201 N. Y. 271, in January, 1911. This de- cision was based principally upon the provision of the act which imposed the payment of compensation upon employers who had not been guilty of any fault con- tributing to the injury. The Court of Appeals indi- cated that the decision might have been different had the Act been authorized by the State constitution. An amendment to the constitution permitting the en- actment of a compulsory statute for the payment of compensation without regard to fault was adopted by the people at the general election in 1913. The present compensation act/ which is the subject of this work, was passed by the Legislature in Special Session in 1913 and was re-enacted at the regular session in 1914. It was held not in violation of the Federal constitution in Mat- ter of Jensen vs. Southern Pacific Co., 215 N. Y. 514. A provision was added to the compensation law by the amendments of 1916, under which employers who are not subject to the act and their employees, may, by joint election, become subject to its provisions. There is also in force in the State of New York another elective compensation law, being Article 14 of the Labor Law.^ Only a very few employers and employees have ever elected to come within its provisions. It is now super- seded by the amendment to the compulsory act at least insofar as its provisions are inconsistent therewith. 'Chapter 67 of the Consolidated Laws of 1914; Chapters 167, 168, 615 Laws, being Chapter 816 of the Laws and 674, Laws of 1915, and \>y Chap- of 1918, as re-enacted and amended ter 622, Laws of 1916. by Chapter 41 of the Laws of 1914, " Chapter 352, Laws of 1910. and as amended by Chapter 816, PLAN AND PURPOSE OF THE COMPENSATION LAW 5 § 2. Plan and purpose of the compensation law. Under the general plan of the compensation statute, employers are required to pay or provide a prescribed compensation based upon the earnings of the employee for disability or death due to accidental injuries arising out of and in the course of certain enumerated hazardous employments. The employer has the option of giving security for the payment of compensation by contribut- ing premiums to a State Insurance Fund created by the Act ; by insuring with any stock corporation, or mutual association authorized to -VATite compensation insurance, or by furnishing satisfactory proof to the Commission of his financial ability to pay compensation directly to his employees without insuring. If he fails to exercise either of these options, he is liable to a penalty equal to the premium payable to the State Fund and is subject to a suit for damages upon the part of the injured em- ployee, or in case of death, by his legal representative or dependents, in which he is deprived of the defenses of contributory negligence, assumed risk and the negligence of fellow-servants, and since the amendments of 1916 is guilty of a misdemeanor. If he gives security for the payment of compensation, he is relieved from liability, other than compensation, for personal injuries or death sustained by employees who come within the provisions of the statute. Payment of compensation is required without regard to fault either upon the part of the employer or the em- ployee, except when the injury is due solely to the in- toxication of the employee or is occasioned by his wilful intention to bring about the injury or death of himself or another. Rules of damages do not apply to compen- sation cases nor is the determination of claims governed by common law or statutory rules of evidence. A Com- mission is created to administer the Act and its decision is final upon all questions of fact.^ As stated by the Supreme Court, "It was the purpose of the Legislature to create a tribunal to do rough justice — speedy, sum- ' Compensation Law, Section 20. Iron Works, 167 App. Div. 626; 168 Matter of Goldstein vs. Center N. Y. Supp. 224. 6 workmen's compensation mary, informal, untechnical.'" Appeals may be taken on questions of law to the Appellate Division of the Supreme Court, Third Department. While the de- cision of the Commission is final upon questions of fact, the Courts on appeal may examine an^ take into account the evidence adduced, as supplementing the findings of fact, and in all cases, the correctness of the determina- tion of the Commission as to the application of the law to the injury upon which the claim is based remains a question for judicial review.^ The purpose of the statute is elaborately explained in the following extract from the opinion written by Supreme Court Justice John M. Woodward in the case of Bheinwald vs. Builders Brick & Supply Co., 168 App. Div. 425; 153 N. Y. Supp. 598: "The Workmen's Compensation Law must in fairness be deemed to have been enacted in further- ance of a legislative determination, enforced by ex- plicit mandate of the people through amendment of the State constitution, that a new and different scheme and basis of indemnity for industrial acci- dents should be adopted in this State, in the light of the social experience of other commonwealths and countries. Injuries sustained by those who per- form the manual and mechanical tasks of an in- dustry must be deemed to have been intended by this statute to be made a social risk, a liability of the industry, a charge upon the production cost of the article manufactured or the service rendered. Hith- erto the rule of our statute and fundamental law had been that any right of recovery for industrial accidents must arise from a breach of the master's duty as to care and safeguards, and accordingly was limited by whatever contractual relation existed between the person injured and the person whose breach of duty was the efficient cause of injury. For this historic concept of liability springing from " Matter of Rhyner vs. Huber Co., ' Matter of Gleisner vs. Gross & 171 App. Div. 71; 156 N. Y. Supp. Herbener, 170 App. Div. 37; 155 903. N. Y. Supp. 946. PLAN AND PURPOSE OP THE COMPENSATION LAW 7 omission of legal duty created by contractual rela- tion there has been substituted an application of the social principle that regardless of duty and regard- less of fault, the expenses and loss of earnings re- sultant from occupational injury to a workman en- gaged in carrying on an inherently hazardous busi- ness or avocation of an employer should be paid in the first instance by the employer and by him made a charge against the operating costs of the business. In place of the traditional juristic rule that the master must respond in damages when his servant is injured through the master's fault, and that other- wise the servant must go unrecompensed and the loss be borne by him alone, the people and legis- lature have now put in force the changed concept that the trade product should be charged with all consequences of inherent trade hazards and that losses to individual workers through disability while engaged in the service of the proprietor of the busi- ness, should be distributed among all its consumers or patronsj rather than left to operate ruinously against the disabled employee or the solitary em- ployer." § 3. Employments subject to the Act. Compensa- tion laws differ widely as to the field of occupations which are subject to their provisions. In some states the law is general in its terms and applies to all employ- ments except those expressly exempted. Most statutes of this kind exempt farm laborers, domestic servants and casual employees. Other laws apply only to hazardous employments named in the statute itself. The New York law is of the latter class. Its application is lim- ited to the hazardous employment enumerated in Section 2 and divided into 42 groups. After June 1, 1916, any employment can be made subject to the act by joint elec- tion of the employer and his employees. An. employer under the New York act is one employing workmen in a hazardous employment and an employee entitled to its benefits is one working in such hazardous employment. The act is further limited by the requirement that the WORKMEN S COMPENSATION employment in question must be one which is carried on by the employer for pecuniary gain, but this limitation does not apply to municipal employees after June 1, 1916. Farm laborers and domestic servants are ex- empted. Generally speaking, two classes of emploj^ers are sub- ject to the compensation law. The first class consists of those specifically mentioned in Section 2 and the other class is made up of those engaged in a business which is not included in Section 2, but in connection with which certain workmen are engaged in one or more of the hazardous employments covered by the act. Em- ployers conducting a mercantile business may be given as an example of the class to which the law has this lim- ited application. While the general employees of a mer- cantile house are not engaged in hazardous work, the workman driving a vehicle would be under the Act. The mercantile business is not classified as hazardous but the driver of the vehicle is performing work declared hazard- ous by group 41. (See also Sec. 10 Post.) § 4. Injuries subject to the Act. The amendment to the State constitution authorized a compensation law which would apply to injuries received by employees in the course of the employment. The Legislature has lim- ited the application of the statute in this respect by defin- ing injuries as meaning accidental injuries arising out of and in the course of the employment and such disease and infection as may naturally and unavoidably result from such injuries. Three requisites, therefore, must exist before an injury can be regarded as compensatable. The injury must be accidental; it must arise out of the employment and it must have happened in the course of the employment. If any one of the three requisites is absent, no compensation is payable. The most common definition of the term "accident" as used in compensation statutes is found in a decision by the House of I^ords under the compensation law of England in the case of Fenton vs. Thorley 5 W. C. C. I ; (1903) A. C. 433. There the term was defined as "an INJURIES SUBJECT TO THE ACT unlocked for mishap or an untoward event which is not expected nor designed." This definiti@n was based to some extent upon the decision of the United States Su- preme Court in the case of U. S. Mutual Accident Asso- ciation vs. Barry, 131 U. S. 100. The use of the word "designed" in this definition would exclude deliberate injuries such as result from an assault and the House of Lords, in the case of Tn'm Joint District School vs. Kelley, 7 B. W. C. C. 27 A, extended the definition to include assault cases. The English definition of the term "accident" was adopted in New York by the Workmen's Compensation Commission in Matter of Yume vs. Knickerbocker Port- land Cement Co., 3 N. Y. St. Dep. Rep. 353, affirmed without opinion, 153 N. Y. Supp. 1151, appeal dis- missed 216 N. Y. Memo. 653, and in the Matter of Har- nett vs. Thos. J. Steen Building Construction Co., 2 N. Y. St. Dep. Eep. 492, affirmed without opinion 153 N. Y. Supp. 1119, appeal dismissed 216 N. Y. 101. In both of these cases the injuries were due to assaults by fellow employees. It was held that the word "designed" referred to the state of mind of the injured workman and that injuries resulting from the designed assault of a fellow employee were accidental injuries. The term "arising out of the employment" has been the subject of considerable discussion. Generally speak- ing, an injury does not arise out of the employment un- less it can be traced to some risk which is inherent in the business or to some accident which is the natural result of the employment. The construction of the phrase most widely adopted is taken from a decision by the Supreme Judicial Court of Massachusetts in the case In re Em- ployers Uability Assurance Corporation, 102 N. E. 697; 215 Mass. 497. There the Court said: "It arises 'out of the employment when there is apparent to the rational mind upon consideration of all the circumstances, a causual connection be- tween the conditions under which the work is re- quired to be performed and the resulting injury. Under this test, if the injury can be seen to have 10 workmen's compensation followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation, as a result of the exposure occasioned by the nature of the employ- ment, then it arises but of the employment." Reduced to simpler language this decision means that the industry must cause or contribute to the injury, and that injuries to which all persons are exposed inde- pendent of the employment, are excluded. The phrase "in the course of the employment" relates to the time and place and gives rise to much less diffi- culty. While the accident must happen during the period of the employment, the benefits of the act are not confined to the time during which the workman is actu- ally doing manual labor. Accidents going to and from work are usually excluded but may be compensatable in exceptional cases such as where the only method of reach- ing the work is one especially provided by the employer^ and interruptions in the employment are usually covered. Employees are also under the protection of the act for a reasonable period of time subsequent to the day's work while they may be engaged in getting ready to leave the premises or arranging for the next day's work, and also for a reasonable period of time during which they may be entering or leaving the premises.^ In applying decisions which define injuries in other jurisdictions, a comparison of the statutes must always be made. The word "accidental" has been omitted from many of the American compensation statutes. In some states, compensation is based upon injuries in the course of the employment and in other states upon injuries aris- ing out of and in the course of the employment. No state restricts the term "injury" more than in the New York Law. ' Matter of Diciaiulo vs. H. S. May 2, 1916. Kerbauch, Inc., 1 N. Y. St. Dep. (See cases cited under Section 8, Rep. 424. subd. 7, Workmen's Compensation ' Matter of Di Paolo vs. Crimins Law, Annotated.) Contracting Co., State Industrial (See also Part I, Sec. 18, Occupa- Com., The Bulletin, Vol. 1, No. 8, tional Diseases.) page 7; Aff., App. Div., Third Dept., COMPENSATION AND DEATH BENEFITS 11 § 5. Compensation and death benefits. The aver- age weekly wage of the injured employee is the basis of compensation for injuries and the amount is two- thirds of such wages. The maximum is $15 per week and the minimum is $5 per week, except that the maxi- mum for the loss of a hand, arm, foot, leg or eye is $20 per week. Compensation for injuries which result in temporary total disability and which result in total per- manent disability is payable during the continuance of the disability, except for the first two weeks. Certain specific injuries are enumerated for which compensation is payable for a fixed period of time. These include amputations and loss of members. Every injured work- man is entitled to free medical attention for a period of sixty days after the injury. The death benefits include funeral expenses not ex- ceeding $100 and a percentage of the average wages of the deceased workman which is payable only to the per- sons designated in Section 16 of the statute. These in- clude surviving wife (or dependent husband), children under 18 years of age, grandchildren or brothers or sis- ters under the age of 18 years, parents and grandpar- ents. Dependency is presumed as to the surviving wife and as to children under 18 years of age. The others named in the statute, to receive compensation, must es- tablish that they were actually dependent upon the work- man at the time of the accident. Dependency is a ques- tion of fact and any degree of dependenciy is sufficient to authorize an award.^ Parents may be dependent upon the earnings of a minor child,^ and in a case where the deceased left a father and mother and a sister under 18 years of age, all three were held to be dependents.^ Where the workman left a parent and grandparent who were dependent, both were held entitled to compensa- tion.* (See Sec. 14, Post.) Brothers, 167 App. Div. 496; 163 ' Matter of Rhyner vs. Huber N. Y. Supp. 392. Bldg. Co., 171 App. Div. 71; 156 "Matter of Walz vs. Holbrook, N. Y. Supp. 903. Cabot & Rollins Corp., 170 App. Div. Matter of Walz vs. Holbrook, 6; 155 N. Y. Supp. 703. Cabot & Rollins Corp., 170 App. Div. * Matter of Ramsey vs. Fairbanks 6; 155 N. Y. Supp. 703. Morse & Co., 155 N. Y. Supp. 1186. 'Matter of Friscia vs. Drake (No opinion.) 12 woekmen's compensation The surviving wife receives 30% of the average weekly- wage during widowhood with two years' compensation in a lump in case of remarriage and 10% for each child. When there is no widow, the children receive 15% each, and this same percentage is received by dependent grandchildren, brothers and sisters. Dependent par- ents and grandparents received 15% of the average weeldy wages until the law was amended in 1916 (to take effect June 1, 1916) at which time their compensa- tion became increased to 25%. The total compensation payable under the section is limited to two-thirds of the wages of the deceased. The surviving wife (or depen- dent husband) and children have preference over other dependents and cases will arise where the remaining dependents would receive no benefits under the act. It is apparent also that many cases will arise in which the surviving dependent will be not of the class described in Section 16 of the act, such as a dependent child, brother or sister over the age of 18 years. § 6. Employees not within the act. It is apparent from the foregoing sections that the compensation law is limited in its application. When all provisions of the act are read together, particularly the definitions con- tained in Section 3, compensatable injuries may be de- fined as accidental injuries received by an employee while engaged in a hazardous employment carried on by his employer for pecuniary gain at the plant or away from the plant in the course of the employment, which arise out of and in the course of such employment, and such disease or infection as may naturally and uavoid- ably result therefrom, for which compensation or death benefits are provided. Many employments are expressly exempted and many are omitted. As to all of these, the liability existing at common law and under the old Employers Liability Act still remains. Other employments are partly covered by the compensation law and the employer may have a workman who is within the protection of the act part of the time and to whom he may be liable in a suit for dam- ages at other times. The compensation provided is also EMPLOYEES NOT COVERED 13 limited and injuries may occur which are not compensa- table and which subject the employer to damages. In case of death, where there are dependents other than of the class described in Section 16, the suit for damages still remains. In addition there remains the liability under the Federal statutes and under the jurisdiction of the Admiralty Courts. These forms of liability are treated more at length in Sections 7 to 24 which follow. They are discussed in Part II in connection with the State Insurance Fund and other forms of compensation insurance, § 7. Dual employments. Some employers are en- gaged in more than one line of business and one branch of the business may be under the compensation act while as to another branch, the common law or the old Em- ployers Liability Act still applies. In Sickles vs. Balls- ton Refrigerating Co. 156 N. Y. Supp. 864; 171 App. Div. 123, the employer conducted a storage business in Ballston, N. Y., and was, therefore, engaged in a hazard- ous employment because the business of "storage" is in- cluded in group 29 of Section 2. The employer was likewise engaged in the business of buying and selling fruit. The claimant was injured while in the latter busi- ness and the award of compensation was reversed by the Court. Meeting the claimant's contention in support of the award, the Court said : "But the difficulty is that the employer was en- gaged in two entirely distinct kinds of business, one of which was not within the protection of the statute and that the claimant was injured in performance of his duties, which at the time of the injury, solely had reference to that kind of business not thus pro- tected. In another case, the employer was engaged in the manufacture of cheese, which comes within the provisions of group 33 relating to the preparation of food-stuffs. The injured workman was employed specially for the purpose of harvesting ice. An award was made upon the theory that the harvesting of the ice was incident to the business of preparing food-stuffs. This award was li woukmen's compensation reversed, the Court stating, "there is no suggestion in the statute that a common laborer engaged in harvesting ice is engaged in a hazardous occupation." The decision might have been different if a regular employee had been sent out to perform the same work, although that point was not decided.^ So also the employee who makes de- liveries of merchandise will be under the compensation law as to the driver of a vehicle^ but not where the de- livery is made on foot.' Ice harvesting has since been added to the law as one of the hazardous employments. In another case, in which a wholesale dealer maintained a storehouse in connection with his business, the Appel- late Division decided that storage as used in Group 29 means a place of storage where the goods of others are kept for hire.* To meet this decision, Group 29 was amended in 1916 to include storage of all kinds. The amendment adds still more confusion to the law. A merchant who has a storehouse in connection with his business will have employees who are not subject to the Compensation Law while working about the business it- self but will become subject to its provisions whenever they perform any work in connection with the place of storage. DUAL LIABILITY IN RELATION TO TRUCK DRIVERS. In the case, Matter of Dale vs. Saunders Brothers,^ employer, and the Standard Accident Insurance Co., insurance carrier, the Appellate Division of the Supreme Court, Third Department, in a decision handed down March 8, 1916, has decided that truck drivers may at times be regarded as the employee of the owner of the truck designated as the general employer and also an employee of another person, designated as a special em- ployer, for whom the driver may, be working for the time being. In this case Saunders Brothers were manufac- ' Matter of Aylesworth vs. Phoenix 665. Cheese Co., 170 App. Div. 34, 155 * Matter of Mihn vs. Hussey, 169 N. Y. Supp. 916. App. Div. 742; 155 N. Y. Supp. 860. 'Matter of Costello vs. American " App. Div. ; 157 N. Y. Express Co., 217 N. Y. 179. Supp. 1062; Affirmed by the Court 'Matter of Newman vs. Newman, of Appeals April 25, 1916. 169 App. Div. 746; 155 N. Y. Supp. DUAL LIABILITY 15 turers of brick and Dale was one of their drivers. From time to time Saunders Brothers furnished teams with drivers to one Patrick Walsh, who conducted a sand bank for the purpose of delivering sand to Walsh's cus- tomers. Upon the date of the accident, a team and wagon had been furnished to Walsh in this manner and Dale was sent as a driver. Walsh paid Saunders Broth- ers by the day for the team and Dale was paid by Saun- ders Brothers. The accident which resulted in Dale's death, happened while Dale was assisting in the loading of the wagon at the sand bank. The State Workmen's Compensation Commission awarded compensation to the widow and children against Saunders Brothers, there being some evidence to show that Saunders Brothers re- tained control and direction over the work performed by Dale, although at the time he was loading sand for Walsh. In deciding that both Saunders Brothers and Walsh might be liable for compensation, the Court in an opin- ion written by Kellogg, P. J., said: "The fact that the owner of the sand pit might be liable under this law does not absolve the general employer. Dale was required to drive his team where the Saunders Brothers directed, and by re- quiring him to go into the sand pit and subjecting him to the increased danger there, they cannot re- lieve themselves from the ordinary duties and liabil- ities to their teamster. The fact that under the provisions of this law the employment might fall within two or more different groups and thereby two or more persons might be liable to make the compensation does not prejudice the injured em- ployee or his family. It furnishes an additional guarantee that payment will be made. The gen- eral employer, where the injury occurs within the lines of the general employment, is liable, and that liability is not destroyed by the fact that the special employer may also be liable, thus giving the em- ployee a choice of remedies with but one compensa- tion." 16 workmen's compensation In a previous case, Matter of Gimber vs. T. P. Kane Co., 2 N. Y. St. Dep. Rep. 475, affirmed without opin- ion, 155 N. Y. Supp. 1109, where the facts were almost identical, the Commission awarded compensation against the special employer instead of the general employer. This decision of the Commission was based upon a con- clusion that the special employer had control over the work performed by the driver. The award in the Gim- ber case was affirmed by the Appellate Division in November, 1915, upon the authority of Miller vs. North Hudson Contracting Co., 166 A pp. Div. 348. The Dale case was aifirmed in the Court of Appeals upon the ground that the general employer should be held liable xmder the general purpose of the Compensa- tion Law. The Court did not pass upon the question of dual liability established by the Appellate Division. The decision of the Court of Appeals, however, is contrary to the decision of the Appellate Division and is also con- trary to the decision of the Appellate Division in the Gimber case. § 8. Doubtful employments. The attempt upon the part of the Legislature to classify the hazardous in- dustries into 42 groups leaves many in what may be termed as a twilight zone. This is particularly true in relation to group 30 which includes the manufacture or preparation of meat or meat products and as to group 33, covering the preparation of food stuffs. In one of its earliest cases, the State Workmen's Compensation Commission decided that the preparation of meats and the preparation of food stuifs did not mean the ordinary preparation of meat or food stuffs for cooking ptirposes but involved a preparation by some mechanical device or a preparation which either changed the form of the ma- terial to render it suitable for use, or changed the nature of the material for the same purpose.^ In this case, the claim was made by the widow of an employee who was working as a butcher or assistant chef at the Hampton Hotel in Albany, N. Y. While boning a leg of mutton, » Matter of De La GardeUe vs. 158 N. Y. Supp. 162. Hampton Co., 167 App. Div. 617; DOUBTrUL EMPLOYMENTS , 17 his knife accidentally slipped, severed an artery and caused his death. The claim for compensation was denied by the Commission and this decision was affirmed by the Court. The decision is especially important because it excludes from the statute employees engaged in the preparation of meat or food stuffs for cooking purposes in hotels and restaurants. One of the judges writing in relation to the case, gives the application of these two groups in the following language : "Groups 30 and 33 of Section 2, of the statute under consideration, which enumerates and defines hazardous employments cannot, in my judgment, be regarded as covering any employment consisting of the preparation of meat or food stuffs for cook- ing purposes, in the ordinary course of household duties, domestic service or the conduct of hotels or restaurants in which meats or foods are prepared and cooked for eating on the premises. * * * These groups, as phrased by the Legislature, relate ob- viously to employment in industrial establishments or manufactories where meats, fruits, vegetables and similar food stuffs are prepared for sale for consumption elsewhere." Before the groups were enlarged by the amendments of 1916, there was much doubt concerning the applica- tion of the law to many other employments. Meat mar- kets, which are now included in Group 30, were not with- in the protection of the act as to the employees gener- ally,^ but an employee in a meat market engaged in the preparation of meat by means of an electric meat chop- per was held to be within Group 30.* As already point- ed out, ice harvesting, and storage except where the goods of others are stored for hire, were not within the act until the statute was amended. Horseshoeing was included by the Commission upon the theory that this work involved the manufacture of small castings, forg- ing or metal wares within the meaning of Group 23. This ruling of the Commission was reversed by the * Matter of Newman vs. Newman, ' Matter of Kohler vs. Frohman, 169 App. Div. 745; 155 N. Y. Supp. 167 App. Div. 533; 163 N. Y. Supp. 665. 659. 18 workmen's compensation Supreme Court ki, Matter of Grady vs. Holliday, 155 N. Y. Supp. 1110. Horseshoeing and blacksmithing are now both included in Group 24. The operatipn of ele- vators which now comes within the provisions of Group 22 was another doubtful employment. The Commis- sion included elevators as vehicles under Group 41. This decision was affirmed by the Appellate Division in Mat- ter of Wilson vs. Dor/linger, 170 App. Div. 119; 155 N. Y. Supp. 857, which was reversed by the Court of Appeals in a decision handed down April 25, 1916, in an opinion written by Bartlett, Ch. J. Another ques- tionable employment related to druggists whose employ- ees were held to come within the act because, as stated by the Court, a wholesale druggist might reasonably be inferred to be engaged in the manufacture of drugs and chemicals.* Confusion also frequently arises in cases where an employer is performing work for or in connection with the property or business of another. Architects, insur- ance companies and others frequently send inspectors or other employees to superintend, inspect and otherwise look after the erection of buildings. It is a mooted ques^ tion whether employees of this character may be re- garded as engaged in the erection of the building. In a claim against an employer who furnished watchmen to protect merchandise which had been unloaded from ves- sels, the employee was held to be engaged in longshore work and the Commission awarded compensation. The act has never been construed by any Court as to this class of cases but the reasoning in other cases indicates that such employers would not be regarded as engaged in hazardous employments. § 9. Employments expressly exempted. This class includes farm laborers, domestic servants and employ- ments in a trade, business or corporation which is not carried on for pecuniary gain or operated for profit. The rights and liabilities as between the employer and ernployee in all of these classes is governed by the old ' Matter of Larsen vs. Paine Drug Supp. 759; aff. N. Y. ; Co., 169 App. Div. 838; 185 N. Y. Court of Appeals, May 12, 1916. EMPLOYMENTS EXEMPTED 19 law of master and servant. Farm laborers doubtless include laborers engaged in farm work for canning in- dustries and for florists. It also includes employees en- gaged in the operation of haypresses, threshing ma- chines, shredders and evaporators except where these oc- cupations are carried on as a separate business, in which event, although neither is classified as hazardous, some of the employees would be imder the compensation law and others would be governed by the rules of common law. While a chauffeur is not classed as a domestic servant, one engaged in the operation of a pleasure car does not come within the act because the employment is not car- ried on for pecuniary gain. A chauffeur taking his employer to and from his place of business is not under the act, but would be if the automobile is used in con- nection with the business. Chauffeurs employed in the operation of motor trucks, taxicabs, or other vehicles in connection with a business, are, of course, included un- der Group 41, relating to the operation of vehicles. The chauffeur of a physician is held to be under the act be- cause the car in such case is operated in an occupation conducted for profit. Employments which are not operated for a profit cover a large field. They include the erection of private buildings, the management and care of private estates, charitable institutions, hospitals, churches, clubs, schools, colleges and universities. Private schools or sanatoriums conducted for profit are not, however, exempted. In de- termining what employments are excluded under this subdivision the question of profit is not necessarily de- ciding. It is the purpose which controls. If the pur- pose is to make and distribute a profit to the owners, the business is conducted for pecuniary gain no matter whether profit or loss results from its operation. On the other hand, where the owners distribute no profits but are engaged entirely in charitable undertakings, such as the Salvation Army, the employment is excluded. See cases cited under Section 3, subd. 5, The Workmen's Compensa- tion Law, Annotated. 20 workmen's compensation §10. Non-hazardous employments. The employ- ments which are subject to the compensation act have been treated upon brifly in Section 3. As stated by Supreme Court Justice Geo. F. Lyon in the Matter of Newman vs. Newman,^ "the benefits^ of the workmen's Compensation Act are restricted to injuries or death in- curred by employees engaged in one or more of the speci- fied hazardous employments." The employments which are not thus specified may be designated as non-hazard- ous employments. The distinction between the two classes, hazardous and non-hazardous, is explained in the leading case. Matter of Gleisner vs. Gross & Herbener.' Speaking of haz- ardous employments, the Court said, "If an employee is hired for work falling exclusively or predominantly within one or more of the enumerated occupations, his right to compensation for injury in the course of his em- ployment cannot fairly be made to hinge on a finding that he was, at the moment of injury, engaged in an act clearly constituting the direct doing of work named in the act," and in another place, "If an employee's duties are exclusively or predominantly within an enumerated employment or employments, and he is injured while doing work fairly within the scope of the ordinary and accustomed fulfilment of such duties, he has a rightful claim, even though the particular act he was doing when mishap befell him, would not, of and by itself, ordinarily be described by the use of phraseology contained in the statute or as the doing of work enumerated in the stat- ute." It is not to be assumed from this quotation that every employee working in a designated hazardous em- ployment is subject to the compensation law or that every injury is compensatable for, as stated by the same Court, and as appears by the sections of this work which follows : "The Legislature has not attempted to impose upon employers the obligation of insuring their employees generally against accident." »169 App. Div. 746; 155 N. Y. '^ 170 App. Div. 87; 155 N. Y. Supp. 665. Supp. 946. NON-HAZAEDOUS EMPLOYMENTS 21 In the Gleisner case, the employee was a janitor. Neither this class of work nor the business of his em- ployer is declared hazardous. The employee, however, also performed general repair work and at times was engaged in the operation of a boiler. Upon the appeal from an award made by the Commission, the point of the case was stated by the Court in the following language : "The whole question here at issue is whether at the time the claimant met with mishap, he was doing work and engaged in an employment which the Legislature has designated as 'hazardous' and so has brought himself within the purview of the new system of compensation for industrial 'accidents created by the Workmen's Compensation Law." and speaking of the employee's right to compensation, the Court stated that "If, within the scope of his duties, he was injured while actually and unmistakably doing, at the mo- ment, work of a kind specifically defined as 'hazard- ous,' his right is clear." and the award of compensation was reversed because, at the time of the accident he was not performing hazard- ous work. After referring to employments which are mentioned in the Act, the Court laid down the following rule, which applies to non-hazardous employments: "Where, however, as apparently here, the em- ployee's ordinary duties and accustomed scope of activities do not come exclusively or predominantly within the category of enumerated employments, and only casually and incidently does he do work fairly falling within that category, his right to re- muneration must hinge on a finding that he sus- tained injury while actually and momentarily doing work named in the statute." Matter of Newman vs. Newman is also a case in point in relation to non-hazardous employment. The injured workman was employed in a retail meat market as a driver on a delivery wagon. He also worked in the store waiting on trade and made deliveries on foot. In dis- missing the award of compensation, the Court said : "He 22 wokkmen's compensation had put his horse up several hours before, and was en- gaged in the occupation of a deliveryman on foot. This occupation was not included in any of the groups of hazardous employments, nor was it on this occasion a part of, or in any way connected with, a delivery by horse and wagon, nor can it be said, under the circum- stances, to have been a risk incidental to a hazardous em- ployment." It follows from the foregoing that an employer who is engaged in a business which is not named in Section 2 of the Act is subject to the payment of compensation where his employees are doing work named in the statute but at all other times is liable to suits for damages under the old rule of law as between master and servant. § 11. Casual employments. In the Matter of Bargey vs. Massaro Macaroni Co., 170 App. Div. 103; 155 N. Y. Supp. 1076, it was decided that workmen em- ployed occasionally to do repairs upon a plant where a hazardous employment is carried on are excluded from the compensation law. In the case in question, the em- ployer was engaged in a business that was classified as hazardous under the compensation act. The claimant's husband was hired as a carpenter to erect a partition in the plant. In deciding the case and reversing the award made by the commission, the Court said : "He was not in the general employ of the com- pany, but was the man it usually employed to do little odd jobs about its building. He never did any work in the macaroni business; his only work for the defendant was doing work upon or about its buildings. I do not think he was an employee in a business declared hazardous by the Workmen's Compensation Law. Clearly, he was not engaged in the macaroni business, but his job was as a car- penter. The company was not carrying on the carpenter business or doing any carpenter work for a profit; it was making repairs and improvements on its real estate and hired a general workman for that purpose." Prior to this decision the Commission had ruled that CASUAL EMPLOYEES 23 carpenters, painters and other mechanics, employed oc- casionally by a person not engaged in a hazardous em- ployment, were subject to the compensation law. In the Bargey case, the Court expressly held that such employ- ees are not within the benefits of the compensation act. The Court recognized that where a regular employee is performing work which is not hazardous in itself but is incidental to the general work carried on by the em- ployer, such work may be considered as part of the hazardous employment, and it was then stated, "but where a man engages a carpenter by the hour to do some work upon his premises in the way of improve- ments, I cannot feel that he is engaged in the hazardous employment of structural carpentry or repair of build- ings as contemplated by Group 42 of the law." The decision in this case is supported by the fact that only a few of the 42 groups contain the word "repair" from which it would appear that the Legislature intended to exclude repair work except where it is expressly men- tioned. The tenor of this decision is to place carpenters, paint- ers and employees in trades similar thereto under the compensation law only when such persons are in the em- ploy of one whose business is that of carpenter work, painting or the like. A mechanic of this character em- ployed casually by the day by a manufacturer or other employer is not under the Compensation Law. The employer is still liable to such employees for negligence and in the Bargey case, after compensation was denied, suit was brought for damages under the law as it existed before the compensation law was enacted. The Bargey case was followed by the Commission in a decision ren- dered February 10, 1916, in Claim No. 14407, McCom- sey vs. Simmonds (The Bulletin, Vol. 1, No. 6, p. 13), in which the workman received injuries while painting a barn for his employer. An attempt has been made to meet the decision in the Bargey case by amending the definition of the term "employee" and by adding a new subdivision to Section 3 of the act under which the words "manufacture," "con- 24 workmen's compensation struction," "operation" and "installation" are defined as including repairs. These amendments do not, however, meet the point raised by the Court to the effect that a company engaged in the manufacturing business is not carrying on the carpentry business for pecuniary gain when it employs a carpenter to make repairs to its place of business. §12. Salesmen. The Conmiission has ruled that salesmen who are required to work or report at the plant where the hazardous employment is carried on are sub- ject to the compensation law whether the injury hap- pens at the plant or while the salesman is travelling. Employees of this character are to some extent subjected to the risk of the hazardous employment while on the premises and the Commission's ruling regarding acci- dents at the plant appears to be sound. An award was upheld where a salesman in the employ of a clothing manufacturer received an injury by falling from a lad- der while looking at a price ticket on a piece of cloth which was to be used in making a suit of clothes.^ The widow of a sales manager was held entitled to compensa- tion by reason of a fatal injury which the employee re- ceived by falling on the stairs while passing from the floor where the manufacturing was conducted to the upper floor where the office was situated.^ Where the injury is received away from the plant, the salesman is subject to no greater risk than one travelling for the ordinary raercantile establishment. When the injury is received while installing machinery which the employee has sold, compensation is payable,^ but where, as in the Matter of Sickles ( Sec. 7 infra.) , the injury hap- pens on the road and has no connection with the risk of the hazardous employment, the compensation law has no application. In the Sickles case the employer conducted a storage business, which is classified as hazardous un- ' Matter of Berlinger vs. Ritchie & (Without opinion.) Cornell, Aff. 166 N. Y. Supp. 1115. » Matter of Benton vs. Fraser, Aff. (Without opinion.) 166 N. Y. Supp. 1115. (Without '' Matter of Nicholson vs. Klipstein opinion.) & Co., Aff. 155 N. Y. Supp. 1127. SALESMEN 25 der Group 29. He bought and sold fruit and some or all of the fruit purchased was placed in the storehouse. The employee was a purchasing and sales agent and was injured while engaged in the course of his employment in West Virginia, the Court said : "I do not think the work in which the claimant was engaged when he received his injury has any logical or appropriate connection with the storage business. That business implies merely the hous- ing and care of property within a storehouse or other appropriate place of deposit. * * * And what- ever dangers and hazards may be incident to the storage business certainly have no connection with travelling through the country as a purchasing or sales agent. * * * It certainly was not the legislative intent in using the word 'storage' and making it a hazardous employment to include therein the duties of a purchasing agent, which differ in no respect merely because the objects of his purchases may find their way into a storage house." Under this decision a salesman or travelling man injured away from the plant is left to his common law remedy. The risk of injury while travelling does not arise out of any hazardous employment but is common to all. In a decision handed down by the Appellate Division of the Supreme Court, Third Department, since this work was in press, in Matter of Robert Lyon vs. Wind- sor & Davis, it was held that- a salesman employed by a firm engaged in the manufacture of women's clothing was not entitled to compensation for injuries received by falling while passing through the factory. It was held that "the ordinary activities of salesmanship are not embraced within the manufacture of the article being sold." This decision excludes a salesman from the bene- fits of the Workmen's Compensation La weven though the injury happens at the plant. In this case the Ap- pellate Division decided that the Compensation Law did not make the employer's business the test and that the benefits of the act had not been conferred upon all em- ployees. It was said, "The employee's right to compen- 26 sation arises when he does work enumerated in the stat- ute." The amendment of the term "employee" by Chap- ter 622 of the Laws of 1916 was intended to meet this situation and to bring all employees within the protection of the Act where the business is classified as hazardous. §13. Injuries resulting in disfigurement. The Appellate Division of the Supreme Court, Second De- partment, in the case of SUnnich vs. Clover Farm Co., 169 App. Div. 236; 154 N. Y. Supp. A23; S. C. 152 do. 649, has decided that where the schedules of compensa- tion do not cover the injury suffered by an employee, he does not fall within the purview of the compensation act and cannot claim compensation under it, for the act provides no scale or gauge by which to determine what compensation should be provided. In the case in ques- tion, the plaintiff was in the defendant's employ as a driver and was injured by the attack of a horse which resulted in the amputation of a portion of one of plain- tiff's ears. The suit was brought for damages and plain- tiff's right to recover was upheld for the reason that Section 15 of the compensation act did not provide any fixed compensation for the amputation of an ear and consequent disfigurement. "As to such an injury, there- fore," the Court said, "the right to recover remains as it was before the act was passed." This decision has been the subject of much discussion and criticism. Many students of compensation laws are of the opinion that the New York act can be extended to a case of this character for the reason that such an injury might result in total disability or in death, in which event the right of compensation could not be reasonably dis- puted. The Shinnick case, however, was passed upon by nine justices of the Supreme Court, all of whom agreed that the injury in question was outside the com- pensation act and was properly the subject of damages. It must be accepted as the law in relation to injuries of this character. Many cases have arisen in which actions have been commenced to recover damages for injuries which have resulted in disfigurement. These actions are supported by the decision in the Shinnick case and also derive sup- DISFIGUREMENT CASES 27 port from the amendment to the State constitution un- der which the compensation act was passed by the Legis- lature. Literally construed, this amendment to the con- stitution authorizes the enactment of a compensation statute excluding all other remedies only where compen- sation is provided for the injury in question. To ex- clude the damage suit, the Legislature must provide a substitute in the shape of compensation. The term "compensation" as defined by subdivision 6 of Section 3 of the act, does not include the medical services which the employer is required to provide under Section 13, and such medical services are not considered as compen- sation. The Shinnick case was decided July 9, 1915. Four days later the Court of Appeals handed down its de- cision upholding the constitutionality of the compensa- tion law generally in the Jensen case (215 N. Y. 514). Although the point was not squarely decided, the de- cision of the Court of Appeals may be construed as hold- ing that the compensation law is exclusive and in full substitution for any action for damages, even though no compensation is provided for the specific injury. This view of the decision of the Court of Appeals was taken by Supreme Court Justice William S. Andrews in a decision handed down in Special Term, March 22, 1916, in the case of Michael Connors vs. Semet-Solvay Co., in which he refused to follow the Shinnick case. In the Connors case the plaintiff had received compensation and then sued for damages for disfigurement and pain and suffering. Under an amendment to Section 15, which became ef- fective June 1, 1916, the Commission is now authorized to award compensation for injuries resulting in serious facial or head disfigurement not to exceed thirty-five hundred dollars. The Shinnick case is, therefore, no longer an authority in support of an action to recover damages for disfigurement as to any injury occurring subsequent to June 1, 1916. An amendment to Section 11 is intended to make the law exclusive even as to in- juries for which no compensation is provided. As al- 28 ready pointed out, such a provision is ineffectual under the State constitution. § 14. Dependents who receive no compensation. As pointed out in Section 5, the compensation where the injury results in death, is limited to the dependents men- tioned in Section 16 of the compensation law and many cases will arise where the deceased workman leaves de- pendent relatives surviving who cannot be awarded com- pensation under the act. At common law there was no right of action where the death of a person was due to negligence. The right was first created by Chapter 450 of the Laws of 1847 and since 1895 a provision has been contained in the constitution (Art. 1, Sec. 18) which prohibits the Legislature from abrogating the right of action to recover damages in death cases. The constitu- tional amendment (Art. 1, Sec. 19) under which the compensation law is authorized, provides in effect that nothing contained in the constitution shall prohibit the Legislature from the enactment of a law requiring the payment of compensation without regard to fault, or to limit the power of the Legislature "to provide that the right of such compensation and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries." The rule is well settled that all sections of the constitu- tion must be construed together to obtain its true mean- ing and when Sections 18 and 19 are both considered, it would seem to follow that the legislature cannot take away the right to recover damages in death cases unless a substitute is provided therefor. The compensation law is exclusive of all other rights and remedies as to the dependents mentioned in Section 16, but the right to recover damages as guaranteed by Section 18 of the Con- stitution, still remains as to the dependents for whom compensation is omitted. . , In the case of Shanahan vs. Monarch Engineering '"^^ Co., 156 N. Y. Supp. US, the Supreme Court'held that ,. / damages may be recovered on behalf of brothers and sisters who are the only next of kin of the deceased work- man. It was held that the compensation law makes no DEPENDENTS RECEIVING NO COMPENSATION 29 provision for the payment of any benefit to the surviving brothers and sisters and that as to them, the right to sue for damages still remains. In Matter of Frisda vs. Drake Brothers, (Sec. 5 infra) , it was decided that com- pensation could be awarded to the parents of a deceased worlanan notwithstanding the fact that he left him sur- viving no wife or children. Under this decision brothers and sisters under 18 years of age would be entitled to compensation where there is no surviving wife or chil- dren or where the compensation payable to surviving wife and children does not equal 66 2/3% of the aver- age weekly wage of the deceased. The Shanahan case is somewhat contrary to the Friscia case, but it is re- garded as an authority in support of the right of de- pendents to sue for damages in all cases where such de- pendents receive no compensation. It may frequently happen that a child, sister or brother over 18 years of age, or some other next of kin not named in the statute, is entirely dependent upon the deceased workman and will suffer serious pecuniary loss by his death. Section 11 of the compensation act declares the liabil- ity for the payment of compensation as prescribed by Section 10 shall be exclusive and in place of any other liability whatsoever, to such employee, his personal rep- resentatives, husband, dependents or next of kin, or any- one otherwise entitled to recover damages, at common law or otherwise on account of such injury or death. The part in italics was added to Section 11 by the amend- ments of 1916, and among other things was intended to meet the decision in the Shanahan case. While the lan- guage of the section is explicit, it will doubtless be held unconstitutional as to dependents for whom no benefits are provided. § 15. Injuries received by office employees. Ac cording to a ruling made by the State Workmen's Com- pensation Commission, office employees who work at the plant where a hazardous employment is conducted, are within the protection of the compensation law; and office employees who work in a separate office building, although in the service of an employer carrying on a 30 workmen's compensation business within the act, are not within its protection. As to injuries received by the latter class, it is apparent that the employer is not liable for compensation and that the remedy of the employee is to sue for damages if the injuries are due to the negligence of his employer. The ruling of the Commission in relation to office em- ployees where the office is located at the plant has never beeia passed upon by the Courts. The trend of decisions in other cases, however, would seem to indicate that an office employee is not entitled to compensation in any event, even where the office is located at the plant, unless the injury can be traced to some risk of the hazardous employment. In the Matter of DeVoe vs. New York State Railways, 169 A pp. Div. 472; 155 N. Y. Supp. 12, the Justice writing the opinion laid down the rule that the compensation law did not apply to employees gen- erally, even of a particular group, but only while the employee was engaged in the hazardous employment. The following quotation from the opinion in this case seems to clearly indicate that the employer is under no obligation to pay compensation to office employees: "The employee of a street railway, for instance, who is engaged in bookkeeping or in running er- rands or in doing other work disconnected with the physical operation of the railroad, would not be 'en- gaged in the following hazardous employment,' nor would he be entitled to compensation, though the accident might be said to have arisen out of and in the course of his employment * * *. The question is, not whether he was employed by a street railway corporation, but whether he was engaged in the fol- lowing hazardous employments." § 16. Officers of corporations. In nearly all juris- dictions it has been decided that an officer of a corpora- tion is not an eraploj^ee within the ordinary definition of the latter term and that statutes beneficial in character relating to "employees" have no application to officers of corporations. The Workmen's Compensation Com- mission was advised in making rules for the interpreta- tion of the statute that the distinction between the term OFFICERS OF CORPORATIONS 31 "employer" and "employee" as used in the compensa- tion law was similar to the distinction between the term "master" and "servant" and that officers of corporations could not be regarded as employees within the meaning of the act. This rule has been greatly modified in prac- tice. In all cases where an officer of the corporation was performing work of a character usually performed by a superintendent, foreman, mechanic or ordinary work- man, the officer was held to be an employee and entitled to the benefits of the act. Up to the present time, these decisions have not been questioned by employers or in- surance carriers. In a case where the deceased employee was president of a local telephone company and met his death while performing work as a lineman, the widow was awarded compensation.^ In another case, where the employer was secretary and general manager of the com- pany, compensation was awarded for an injury received while he was engaged in superintending the plant. ^ In still another case, compensation was awarded for the amputation of fingers due to an injury received while the officer of the company was operating machinery.' A similar rule has been adopted in Connecticut, where compensation was awarded to an officer who received in- juries while acting as salesman for his company. The New York State Industrial Commission has also decided that the ownership by the injured workman of practically all of the stock in a corporation does not preclude him from receiving compensation. This was held in the Matter of Kennedy vs. Kennedy Mfg. & En- gineering Co. (The Bulletin, Vol. 1, No. 5, p. 12), decided January 8, 1916, in Avhich the injured workman had retired from the office of president and was acting as consulting engineer. He was the owner of all but 7%% of the stock of the company and it was decided that his ownership of practically the entire amount of stock did not change his status as an employee of the 'Claim No. 15410, Matter of A. 'Claim No. 42660, Matter of Foster Brewster, deceased. Joseph Clements. "Claim No. 6230, Matter of John H. Wagner. 32 woekmen's compensation company. In this case an award of compensation was denied, however, because he continued to draw his regu- lar salary notwithstanding the injury and suffered no pecuniary loss. § 17. Damages for loss of services. At common law in the case of an injury to a boy or girl under 21 years of age, a right of action existed on behalf of the person injured, and the parents had another and separ- ate right of action for the damages sustained by them for loss of services. There was also a double remedy at common law in the case of an injury received by a mar- ried woman. She had the right to sue for damages for personal injuries and the husband could recover for the loss of her services and for medical treatment. In the State of Massachusetts, the Supreme Judicial Court, in the case of King vs. The Viscolloid Co., 219 Mass. 420; 106 N. E. 988, decided that the mother could recover damages for loss of services notwithstanding the fact that the boy who was injured ha.d received compen- sation under the Workmen's Compensation Law of that state. It was also held that a provision requiring the employer to pay medical expenses did not take away the parejits' remedy, but only reduced the amount of dam- ages which the parent could otherwise recover. Section 10 of the Workmen's Compensation act re- quires the employer to pay or provide compensation ac- cording to the schedules of the act and Section 11 makes this liability exclusive. The right to recover damages for loss of services was not expressly taken away until Section 11 was amended in 1916 and damages could be recovered for loss of services as to any accident which happened prior to June 1, 1916. The question is not free from doubt even under the amended law. To make the act entirely exclusive a remedy should have been provided in lieu of the former action for loss of services. § 18. Occupational diseases. Only accidental in- juries can be made the basis of compensation. The use of the word "accident" excludes what is known as occu- pational diseases, which include lead poisoning, zinc poi- soning and any injury, such as an injury to the eye or the OCCUPATIONAL DISEASES 33 lungs, which is not due to some particular accident but to long and continued exposure to some condition or hazard under which the work is being performed. In the State of Massachusetts where compensation is not limited to accidental injuries, disability from lead poi- soning was held compensatable^ but under the New York Act all claims for disability due to occupational diseases are excluded. In a case where there was an injury to the eye due to the fact that the employee was required to work before a bright light, and in another case where blood poisoning was contracted from dust particles, and in all cases of occupational poisoning compensation was denied by the New York Commissions. In the following cases, which may be regarded as border line cases, compensation was allowed: where pulmonary tuberculosis was caused by falling into water ;^ where disability was due to freezing;* where the employee died as a result of a disease caused by contact with poison ivy;* where the disability was due to anthrax contracted through an abrasion of the skin while handling wool;^ and where the injured workman became insane as the result of a nervous shock received in an accident.^ In another case (Blatter of McMurray, 3 N. Y. St. Dep. Rep. 395) compensation was awarded where the worlanan died from heart disease due to ex- haustion from overwork. This latter case would proba- bly have been reversed had an appeal been taken. In all of the other cases the disability was traceable to a particular event which brought the injury within the definition of the term "accidental." Although compensation is not payable for an injury which is classed as an occupational or industrial disease, the employer is liable in damages if the injury can be »In re Hurle, 217 Mass. 223; 104 Matter of Cole, 4 N. Y. St. Dep. N. E. 336. Rep. 348. In re Johnson, 217 Mass. 878; 104 'Matter of Plass vs. Cent. R. R. N. E. 735. of New England,. 169 App. Div. 826; ' Matter of Rist vs. Larkin & 155 N. Y. Supp. 854. Sangster, 171 App. Div. 108; 156 "Matter of Henry, Claim No. N. Y. Supp. 875. 65555, State Ind. Com. • Matter of Avlesworth vs. Phoenix " Matter of McMahon, 5 N. Y. St. Cheese Co., 3 N. Y. St. Dep. Rep. Dep. Rep. 109. 34 workmen's compensation traced to a violation of law or to lack of proper safe- guards which would have resulted in its prevention. The employer would be liable for damages where pulmonary tuberculosis is contracted by reason of the failure to pro- vide suitable space for employees in violation of the Labor Law. So also the employer would be liable at common law where the injury or disease, although due to no accident, could have been prevented by the use of proper and suitable safeguards or appliances for carry- ing on the work. §19. Injuries received outside the State. In the Blatter of Valentine vs. Smith Angevine Co., 2 N. Y. St. Dep. Rep. 461, it was decided by the Workmen's Com- pensation Commission that compensation was payable where the injury was received while the workman was temporarily in another state in the course of his employ- ment. This decision was affirmed in Matter of Post vs. Burger & Gohlke, 168 App. Div. 403; 153 N. Y. Supp. 505; 216 N. Y. 544. The Court of Appeals held that the Legislature intended to read the workmen's compen- sation law into the contract of employment and that the employer and employee are bound thereby without refer- ence to the place where the injury happens. Attention was called to the wording of the statute under which the act was extended to injuries which happen "away from the plant," and it was decided that under the general purpose of the law, which was to prevent the injured workmen and their dependents from becoming objects of charity and to make the compensation a part of the expenses of the hazardous business, compensation should be payable although the injured workman was tem- porarily in a foreign state when injured. Many cases will arise where the facts are different from those outlined in the Post case. Since this decision, the State Industrial Commission has denied compensa- tion in File No. 291, Lloyd vs. Power Specialty Co., a case where the contract of hiring was made in New York State and the employee, who was a resident of New Jer- sey, was sent to West Virginia to perform work in which he received an injury which proved to be fatal.. It EXTKA-TEKRITOIHAL CASES 35 was decided by the Commission that the fact that the contract was made in New York State did not entitle the dependents of the injured workman to compensa- tion. In the case of Gardner vs. Horseheadfs Construc- tion Co., 171 App. Div. 66; 156 N. Y. Supp. 899, de- cided by the Appellate Division in January, 1916; the accident happened at the employer's plant in Pennsyl- vania. The injured workman had not been employed in the State of New York since 1912. The Court revers- ing the award, decided that the making of the contract in this state did not, of itself, entitle the claimant to com- pensation where the entire work was to be performed in the state of Pennsylvania. In another case, Matter of Pritz vs. Baumont {reversed 154 N. Y. Supp. 114-0, without opinion), both the claimant and the employer resided in New York State. The claimant had been working in this State but had left his employment and was subsequently engaged in the construction of a build- ing. The employer had given no security for the pay- ment of compensation in the State of New York but had insured under the law of the State of New Jersey as to the particular job in question. The award made by the Commission was reversed. Both the Gardner and the Pritz cases were decided before the Court of Appeals had rendered its decision in the Matter of Post. They seem to be distinguishable, however, and it seems to be sound reasoning that as to jobs which are to be completely performed in another state, the employer is subject to the law of the state where the accident happens, at least where the employ- ment is for the particular work alone. The plant for the purpose of such cases is located in a foreign state, which has a right to regulate its own employments. As to such cases, employers in the State of New York would be subject to liability under the laws of the state where the accident happens. Confusion will doubtless arise where employees of another state are injured while temporarily at work in New York. This confusion can be avoided by applying the law of the state where the injured workman resides 36 workmen's compensation and was employed. In Massachusetts it has been held that the compensation law has no extra territorial effect^ and an employee coming from Massachusetts injured in the course of his employment in this state would be en- titled to compensation or damages, as the case may be, under our laws. On the other hand, it has been decided in Connecticut^ and in New Jersey^ that the compensa- tion laws in each of those states apply where the injury happens outside the state. It would be the duty of the Commission and of the courts to recognize the law of Connecticut and New Jersey and the only recourse of the Connecticut or New Jersey employee, although in- jured in this state, would be the compensation provided by his own state. Even before any valid compensation law was in force in the State of New York, the Courts of this state gave recognition to compensation laws of other states and countries upon the legal principle that the law of the place where the contract of employment was made should gov- ern, unless the foreign law is contrary to the policy and the fundamental law of this state. This was decided in the case of Schwitzer vs. Hamburg- American Line, 149 A pp. Div. 900 J s. c. 78 Misc. 448, and to the same effect, see also Alhanese vs. Stewart, 78 Misc. Rep. (N. Y.) 581, and Pensabene vs. Auditor Co., 78 Misc. 538. § 20. Admiralty jurisdiction. New York City is the greatest seaport in America and more laborers are employed in New York State in connection with the operation of vessels and kindred work than in any other state in the Union. The Legislature has established three groups of employees engaged in this class of work, to which the compensation law has been made applicable. They are Group 8, relating to the operation of vessels; Group 9, relating to shipbuilding, including construction and repair; and Group 10, longshore work, including the loading or unloading of cargoes. Group 8 excludes from the act the operation of vessels ' Gould's case, 215 Mass. 480. erage Co., 86 N. J. Law J. 121. ' Kennerson vs. Thames Towboat Rounsaville vs. Central R R 94 Co., 94 Atl. Rep. Conn. 372. Atl. Rep. 392. "Deeny vs. Wright & Cobb Light- ADMIRALTY JURISDICTION OPTIONAL REMEDIES 37 of other states or countries engaged in interstate com- merce and the repair of such vessels when the work is performed by the owner. Compensation was denied by the Commission in File No. 259, Coons vs. Kennedy Towing Line and in Claim No. 47205, Underwood vs. International Elevating Co., two cases in which resi- dents of New York met their deaths while New Jersey vessels were being operated in the New York Harbor. New York State vessels are made subject to the act whether within or without the State, following the well- established doctrine that a vessel remains a part of the State from whence it hails no matter where it may be located^ and the compensation law has been held to apply where the accident happened upon a New York vessel lying in one of the harbors of the State of New Jersey.^ Group 9 covers shipbuilding and repairing and in- cludes the repair of foreign vessels where the work is carried on by New York concerns. An employee en- gaged in the repair of a vessel of a foreign state or coun- try is within the compensation law if employed by a New York State firm but not when employed by the owner or charterer of the vessel. Group 10 covers longshore work, including loading and unloading of ships and all manner of handling car- goes. By placing this employment in a separate group it is distinguished from the operation of vessels so that employees performing longshore work in relation to foreign vessels are brought within the act no matter by whom employed.* In creating these three groups the IjCgislature has en- tered a field covered to a large extent by the Maritime Law and has brought the act in conflict with the juris- diction of the Courts of Admiralty, as will be more fully explained in the next section. § 21. Admiralty jurisdiction — Optional remedy of employees. The rule is well established under Federal 'McDonald vs. MaUory, 77 N. Y. Lighterage Co., 168 App. Div. 368; 546. 153 N. Y. Supp. 391. Manning vs. International Marine "Matter of Jensen vs. Southern Co., 212 Fed. Rep. 933. Pacific Co., 215 N. Y. 514. ^ Matter of Edwardson vs. Jarvis 38 woekmen's compensation decisions that when an injury takes place upon navigable waters of the United States, it is within the Admiralty jurisdiction of the Federal Courts/ In the State of Washington it has been decided that the compensation act has no application to employees, who may bring a proceeding in Admiralty.^ In New York, however, it was held by the Court of Appeals in the Matter of Walker vs. Clyde Steamship Co., 215 N. Y. 629, that employers of this class are subjected to two remedies, one under the compensation act and the other through a suit in Admiralty. In this decision, it was pointed out that prior to the enactment of the compensation law a suitor might pursue his remedy in Admiralty or might resort to his common law remedy by suit in either State or Federal Court. It was recognized that the State could not interfere with the Admiralty jurisdiction, cit- ing as authorities. The Lottawanna, 21 Wall 558, and Workman vs. New York City, 179 U. S. 552, and the effect of the decision is to give employees who may be injured on a vessel the option of either taking compensa- tion or instituting a proceeding in Admiralty to recover damages. The nature of the work is immaterial. Whether the employee is injured while engaged in the operation of a New York vessel under Group 8, in the construction or repair of a vessel under Group 9, or in longshore work under Group 10, if the accident happens on a vessel while lying in navigable waters of the United States, whether under navigation or moored to a dock, the injured has an option of remedies. This rule effects the whole shipping industry and all transportation by water in the New York Harbor, in the Great Lakes and upon the Hudson River and follows New York vessels upon the high seas or in foreign waters. An injury which happens on land is not subject to Admiralty jurisdiction and a longshoreman, while work- ing on shore is entirely within the compensation act, but when he steps on the vessel in the discharge of the same work he has an option of remedies. This subject is ' Atlantic Transport Co. vs. Im- ' State Ex Reel Jarvis vs. Daggett brovek, 234 U. S. 52. 161 Pac. Rep. 64.8. FEDEKAL EMPLOYERS LIABILITY ACT 39 now before the United States Supreme Court in several cases. If the decision in the State of Washington is fol- lowed the compensation law will have no application where the accident happens on a vessel, but if the de- cision of the New York Court of Appeals is followed, the employee injured on a vessel will retain an option as to his remedies. §22. The Federal Employers' Liability Act.— Railroad employees. A law was passed by Congress, April 22, 1908, which is known as the Federal Employ- ers' Liability Act. It relates to common carriers by railroads engaged in interstate commerce and makes such common carriers liable for injuries due to negli- gence and to defects in railroad ways, machinery, appli- ances, etc. Having this Federal law in mind, the Legis- lature inserted Section 114 in the compensation law. This section provides : "The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States, only to the extent that their mutual connec- tion with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce," * * * and there follows a provision under which employers and employees engaged in interstate commerce may elect to come within the Act. It is apparent that this section is awkwardly phrased and this was recognized by the Court of Appeals in Matter of Jensen vs. Southern Pacific Co. (Sec. 1, infra) . In the Jensen case, it was held that the Legis- lature did not intend to confine the act to intrastate work alone, but also to interstate work, except as to injuries for which "a rule of liability or method of compensation has been or shall be established by the Congress of the United States." It was held that the words "may be" should be construed in the same sense as "shall be." In the Jensen case the Court had the section under consider- 40 workmen's compensation ation in connection with common carriers by vessels and it was decided that the Federal Employers' Liability Act had no application to transportation by steamship com- panies. The application of the compensation law to employees of railroads engaged in interstate commerce was under consideration by the Court of Appeals in Matter of Winfield vs. New York Central R. R. Co., 216 N. Y. 284. It was pointed out that the Federal Employers' Liability Act is confined to injuries result- ing from negligence while the scope of the compensation law is broader, because imder its provisions the employee is awarded compensation for injuries whether they result from negligence or not ; and in conclusion, the Court of Appeals decided: "In so far as employers and employees working in this State who are engaged in interstate com- merce and injuries result to employees which are not the result of negligence and are not occasioned by the wilful intention of the employee to bring about the injury or death of himself or another, or result from his intoxication while on duty, Congress, not having legislated upon the subject, the State statute is operative." Under this decision, compensation is payable to em- ployees of railroads engaged in interstate commerce not only when the injury is received while the employee is employed in intrastate work, but also while engaged in interstate work unless caused by the negligence of his employer. A similar ruling has been made in the State of New Jersey,^ but contrary rulings have been made under the compensation law in the State of California^ and in the State of Illinois.' As the decisions by the State courts are conflicting, the question will not be definitely determined until passed upon by the United States Supreme Court, which now has under considera- tion the Winfield case construing the New York Act. Whatever the final outcome of the conflict between the ' Matter of Rounsaville vs. Central Commission, 14.7 Pac. Rep. 600. R. R., 94 Atl. Rep. 892. » Stalev vs. 111. Central R. R. Co., ' Smith vs. Industrial Accident 109 N. E. 342. FEDERAL EMPLOYERS LIABILITY ACT 41 Federal Act and the compensation statutes, the question as to what constitutes interstate commerce and what facts justify a recovery under the Federal Act will al- ways be of much interest to railroad employees and to the legal profession generally. The most recent im- portant decision of the Supreme Court of the United States is the case of Shanks vs. Del., Lack. & Western R. R. Co., decided January, 1916, 36 Sup. Ct. R. 188, affirming the New York Court of Appeals, (214 IST. Y. 413) . It was there held that an employee in a machine shop operated to repair locomotives used in both intra- state and interstate transportation is not employed in interstate commerce while engaged in taking down and putting into a new location in the shop a countershaft through which power is communicated to machinery used in the repair work. It was accordingly held that no re- covery could be had under the Federal Act. The leading cases in the Supreme Court of the United States in which it has been held that the employment was in interstate commerce within the meaning of the Federal Employers' Liability Act are the following: where a car repairer is replacing a drawbar in a car then in use in interstate commerce ;* where a fireman is walk- ing ahead of a locomotive and piloting the same through switches for the purpose of attaching the locomotive to an interstate train ;° where a workman is injured while carrying bolts from a tool car to a bridge regularly used in the transportation of interstate trains ; for repair work on the bridge;^ where a clerk is walking through a rail- road yard to meet an interstate train for the purpose of marking cars for the switch crew;' where a fireman, after preparing an engine to take out a train in interstate commerce is walking across adjacent tracks on an er- rand in connection with his work;* where a brakeman on a train made up of interstate and intrastate cars is assist- * Second Employers' Liability 229 U. S. 146. Cases, 223 U. S. 1. ' St. Louis S. F. & t. R. R. vs. » Norfolk & West. R. R. vs. Scale, 229 U. S. 166. Earnest, 229 U. S. 114. ° No. Carolina R. R. vs. Zachary, » Pederson vs. D. L. & W. R. R., 232 U. S. 248. 42 woekmen's compensation ing in placing the latter on a side track so that the train may proceed with the interstate cars.' In addition to the Shanks case above mentioned, the leading cases in which it was held that the requisite em- ployments in interstate commerce did not exist are: where a member of a switching crew is engaged in han- dling a train of cars all of which were loaded with intra- state freight;" where an employee is injured in a coal mine operated by a railroad company, mining coal in- tended to be used in the company's locomotive transport- ing interstate commerce." An interesting line of cases are those in which the injured workman was employed about instrumentalities which had not as yet, or had entirely ceased to be used in interstate commerce, in all of which it was held that the Federal Employers' Liability Act did not apply." These cases follow the reasoning of the Supreme Court in the Pederson case, in which the Court said it was not concerned with the construction of tracks, bridges, en- gines or cars which had not as yet been used in inter- state commerce. Distinctions between interstate and intrastate work are sometimes finely drawn. Generally speaking, how- ever, a railroad employee is within the protection of the Federal Act if his work is in connection with the right of way over which interstate commerce is transported, such as the roadbed or a bridge, or in connection with locomotive or cars while drawing interstate commerce, or while temporarily withdrawn from the service for re- pairs. On the contrary, as was decided by the New York Appellate Division, Third Department, in the Matter of Parsons vs. Delaware & Hudson R. R. Co., 167 App. Div. 536; 153 N. Y. Supp. 179, the railroad employee is not within the Act while working on a loco- motive or car which has been entirely withdrawn from • N. Y. C. 8e H. R. R. R. vs. Carr, « Bravis vs. C. M. & St. P. R. R. 238 U. S. 260. Co., 217 Fed. Rep. 284. " IlUnois Central R. R. vs. Behr- Jackson vs. C. M. & St. P. E. R. ens, 238 U. S. 473. Co., 210 Fed. Rep. 496. " D. L. & W. R. R. vs. Yurkonis, Thomas vs. B. & M. R. R. Co., 218 288 U. S. 489. Fed. Rep. 148. FEDEKAL EMPlOYEllS LIABILITY ACT 43 use and for the time being is dismantled; and he is not under the Federal act while working upon indirect or re- mote appliances of interstate commerce, nor while en- gaged entirely in connection with intrastate work. As stated by the Court of Appeals in the case of Bar- low vs. Lehigh Valley B. B. Co. 214. N. Y. 116, re- ferring to railroad employees : "It is an anomalous situation and one to be reme- died as far as possible by legislation, that an em- ployer's liability to his employee may be governed by one rule at one moment and by an entirely differ- ent rule at the next, though the employee is all the time engaged in precisely the same kind of work." The ordinary street surface railroad operated in a city or village is not a common carrier by railroad within the meaning of the Federal Act." An interurban electric railroad which carries passengers, freight, express or mail, is, however, considered as a common carrier by railroad," and employees of such electric roads are with- in the protection of the Federal Act if employed in inter- state commerce. A railroad which extends across a state line is some- times engaged in intrastate work and roads entirely with- in the State of New York are engaged in interstate com- merce when transporting freight destined to or received from another state. A railroad employee has no remedy except compensa- tion when injured while at intrastate work, and under the Winfield case, when injured while working in con- nection with interstate commerce, he may sue for any injury due to negligence and have compensation when negligence is absent. § 23. Independent contractors. An independent contractor is defined as a person who is exercising an independent employment and agrees to perform work according to his own method without subjecting himself "U. S. vs. Bait. & Ohio S. W. Kansas City West. R. R. Co. vs. R. R. Co., 226 U. S. 14. McAdow, 164i S. W. 188, aflSrmed by " Omaha fit Council Bluffs vs. Int. . the U. S. Supreme Court, January St. Commerce Commission, 230 U. S. 3, 1916. (240 U. S. 51.) 324, 336, 337. WOKKMEN S COMPENSATION to the control of his employer except as to the result of his work. The circumstances which indicate a relation- ship to be that of an independent contractor are : 1. The independent nature of the business. 2. The contract to perform a specific piece of work. 3. The contract for a set price. 4. The employment of assistants. 5. The furnishing' of materials. 6. The control of the work except as to the result. Taken separately, these elements are not conclusive but when all are present the relationship is that of an inde- pendent contractor. Each case must be decided accord- ing to the facts which exist but the control over the work is the most important element. In the case of Bhein- wald vs. Builders Brick & Supply Co. (Sec. 2 infra) the injured workman had a written contract to paint a sign under which he guaranteed the work. He employed no assistants and met his death from an injury which he re- ceived in falling from a ladder while doing the work. The Workmen's Compensation Commission by divided vote, held that the deceased workman was an independ- ent contractor and denied the widow's claim for compen- sation. This decision was reversed in the Appellate Di- vision by a divided Court where it was held that Rhein- wald was a workman and entitled to the benefits of the compensation act. An award of compensation has since been made and the case will eventually be passed upon by the Court of Appeals. In Matter of Powley vs. Vivian & Co., 169 App. Div. 170; 154 N. Y. Supp. 426, the injured workman had leased a dredge to his employer under written contract by the terms of which he retained charge over its opera- tion and over the members of the crew who were em- ployees of the lessee. It was held that the claimant was exercising an independent calling and that as to the oper- ation of the dredge he was not an employee. An award of compensation was upheld, however, because the claim- ant at the time of the accident was engaged in the opera- tion of a launch transporting supplies to the dredge — work which should have been performed by his employer. INDEPENDENT CONTRACTORS 45 It is evident from this decision that an independent con- tractor may also at times be regarded as an employee. In case of doubt as to whether the workman is an inde- pendent contractor, compensation insurance should be provided for should it develop that the workman was within the protection of the compensation law, he could, in case of injury, sue for damages, in which event the employer would be deprived of the defenses of contribu- tory negligence, assumed risk and negligence of fellow servants. Althpugh one may be doing the work of an indepen- dent contractor and be barred from the benefits of the compensation law, the person for whom he is working is still under the obligation to exercise diligence and care to the end that the independent contractor may not re- ceive injury while in the course of his employment. In the Bargey case (Sec. 11), the deceased workman had just completed an independent contract for repairs upon the building in which the accident happened and at the time of the injury was working by the day. While en- gaged upon the work, the floor of the employers prem- ises crashed down upon his head, killing him instantly, and, under these circumstances, it would be immaterial whether he was an independent contractor or a casual employee, for in either event the owner of the building would be liable in damages if the injury was due to his negligence. § 24. Employees injured through the negligence of third persons.^ If a workman entitled to compensa- tion is injured or killed by the negligence of another not in the same employ, he must, or in case of death his de- pendents, must elect whether to take compensation or pursue his remedy against the third party through whose negligence the injury was occasioned. Rule 51 was adopted by the Commission to regulate the manner in which such election shall be made. Under this rule, if the injured workman elects to take compensation, such election is made by filing a claim for compensation with the Commission containing an assignment of the cause ' Section 29 Workmen's Compensation Law. 46 workmen's compensation of action against such third party to the person liable for the payment of compensation. In an action brought against a third party by the em- ployer or insurance carrier, upon the assignment of the cause of action made by the injured workman, the recov- ery is limited to the amount of compensation paid the injured workman by the party bringing the suit.^ In England it has been held that the legitimate costs and expenses of the compensation proceedings may be re- covered in addition to the compensation paid,' and, doubtless, this rule would also be applied under the New York act. The defendant in such an action may set up the usual defenses in negligence cases including the con- tributory negligence of the employee and may also show that the compensation was not paid in accordance with the statute.* Where the injured workman or his dependents elect to sue a third party, the employer or insurance carrier is only liable in compensation for the deficiency between the amount recovered against the third party and the compensation provided by the act. Under the rules of the Commission where compensation is to be claimed for a possible deficiency a notice of election to sue the third party must be filed with the Commission together with a claim for compensation, which is held in abeyance by the Commission until the suit is determined. It was decided, however, in the case of Lester vs. Otis Elevator Co., 169 App. Div. 613; 153 N. Y. Supp. 1058, that the injured workman may maintain a suit against the third partjr to recover damages at common law without filing a notice of election with the Commission. The rules of the Commission, therefore, only apply where claim for compensation is to be made for the deficiency between the amount recovered in the suit and the amount of com- pensation provided by the act. In England it has been held that suit for damages may be brought against a fellow employee^ but such suit cannot be brought under »U. S. Fidelity & Guaranty Co. 'Great Northern R. R. Co. vs. vs. New York Railways Co., Whitehead, 4 B. W. C. C. 89. Supreme Court App. Term, Jan., 'Thompson vs. N. E. M. Co., 5 1916; 166 N. Y. Supp. 615. W. C. C. 71. SUITS AGAINST THIRD PARTIES 47 the New York act as the injured workman only has this election of remedies where the injury was caused by a person "not in the same employ." Most of the compensation statutes have a provision in relation to injuries of this character similar to the pro- visions of Section 29 of the New York act. In the state of Washington the optional remedy of the employee is confined to injuries received "away from the plant" and in the case of Northern Pacific Railway Co. vs. Mary A, Meese,^ it was decided that the compensation law was the only remedy for an injury received at the plant although it was caused by the negligence of a third party. If compensation is claimed in addition to the amount recovered from the third party, a compromise of the suit brought by the workman or his dependents at an amount less than the compensation provided b ythe act cannot be made except with the written approval of the Com- mission if the deficiency of compensation is payable from the State Fund, and otherwise with the written approval of the person, association or corporation liable to pay the same. This provision of the act does not, however, prevent a compromise if the workman or his dependents make no claim for compensation in addition to the amount of the settlement. In a case where the injury was due to a collision between a trolley car and a wagon at a street crossing in which the driver of the wagon signed a release exonerating the railroad company, it was held that such a release did not bar the claim for compensation made by the injured workman, and that the release would not prevent the insurance carrier from prosecuting the assigned claim of the injured workman against the third party.' An infant, sui juris may sue a third party under Section 29 without the appointment of a guardian Ad Litem.^ Since the rules of procedure were adopted by the Com- mission for proceedings in cases of this character, the ■Smith Dock Co. vs. Readhead, 5 Conklin & Sons, App. Div. Third B. W. C. C. 449. Dept. March 8, 1916; 167 N. Y. •239 U. S. 614; 206 Fed. 222; 211 Supp. 948. Fed. 254. ' Herkey vs. Agar Mfg. Co., 158 'Matter of Woodward vs. B. W. N. Y. Supp. 369; 90 Misc. 457. 48 workmen's compensation compensation law was amended, requiring that the claim for compensation should first be presented to the em- ployer. Because of this amendment the notice of elec- tion to sue a third party and the claim for compensation for deficiency should be filed with tl^e employer as well as with the Commission. PART II. COMPENSATION AND LIABILITY INSURANCE. PART II COMPENSATION AND LIABILITY INSURANCE. Sec. 25. Security foe payment of compensation. 26. Self-insurance. 27. Insurance by Stock Companies and Mutual Associations. 28. The State Insurance Fund — Coverage. 29. State Insurance Fund — Release from PAYMENT of COMPENSATION. 30. State Insurance Fund — Immunity. 31. Administration of the State Insurance. Fund. § 25. Security for payment of compensation. Every employer subject to the compensation law is re- quired, under the provisions of Section 50 to give se- curity for the payment of compensation. This security may be given by insuring with the State Insurance Fund, with a stock corporation or a mutual association authorized to write workmen's compensation insurance, or by furnishing satisfactory proof to the Commission of financial ability to pay compensation directly without insuring. The State Fund, stock companies, mutual associations and self-insurers are defined as "insurance carriers." (Sec. 3, subd. 12.) Every insurance policy issued by a stock or mutual company to insure an em- ployer against liability to his employees must also cover liability to pay compensation (Sec. 54, subd. 4>) and the injured workman may have recourse to the policy, 61 52 woekmen's compensation through the Commission, to enforce payment of com- pensation. (Sec. 54, subd. 1.) Failure to give security for the payment of compensation makes the employer liable to a penalty in a sum equal to the premium paya- ble to the State Fund and enables the injured workman or his dependents to sue for damages. Under Section 50 the method by which the employer shall give security for compensation is purely optional. In some of the decisions a different rule has been laid down from which it might appear that the compensation act was intended to establish a system of state insurance. In the case, Matter of McQueeney vs. Sutphen & Meyer, 167 App. Div. 528; 153 'N. Y. 'Supp. 554, it was first intimated that the law should be construed on the theory that it contemplates insurance in the State Fund. The Court had imder consideration the presumptions created in favor of the injured workman by Section 21 of the act. The point at issue in the case was whether the em- ployee was injured while engaged in a hazardous occu- pation. The employer's business consisted of the sale of plate glass and also the manufacture of glass prod- ucts. The Court said that as against the State Fund the injury would be assumed to be within the law unless otherwise shown and that where an employee is engaged in an employment declared hazardous, but at times works in a non-hazardous employment, the injury must be con- sidered within the act if the employer fails to show all of the facts. It was held that employers who are self-in- surers or who insure otherwise than in the State Fund, should be governed by the same rule and the award as made by the Commission against the employer and the insurance company was affirmed. In another case. Matter of Winfield vs. New York Central R. B. Co., 168 App. Div. 351; 153 N. Y. Supp. 499, in which the Court has under consideration the ap- plication of the statute to railroad employees, it was stated that "the Legislature evidently intended to take care of the workman through a state system of insur- ance." In arriving at this conclusion, the Court evi- dently overlooked the provisions of Section 25 of the act SECURITY FOE COMPENSATION 53 relating to the payment of compensation. In one por- tion of the opinion, the Court said, "The State Insurance Fund makes the compensation to the injured employee," and in another place, "The self -insurer, the company or the association pays the losses to the Fund. The Fund, in all cases, through the Commission, makes the compen- sation to the employee." As a matter of fact, Section 25, at the time this decision was rendered, required pay- ment of compensation, except where the employer was insured in the State Fund, directly to the Commission and the Commission was authorized to disburse the same to the injured workman. The same section also author- ized the Commission to require from employers and in- surance companies deposits with the Commission for the purpose of paying compensation therefrom. This method was strictly followed by the Commission until Section 25 was amended by Chapter 167 of the Laws of 1915, since which time compensation is paid directly by the employer. As the law now stands, the obligation is on the employer to pay the compensation in the first instance and he is reimbursed by the insurance carrier whether it be the State Fund or an insurance company. In practice, payments are usually made directly by the insurance carrier. The only reference to the State Fund in connection with awards against self-insurers and in- surance companies is contained in Section 27, under which, if the nature of the injury makes it possible to compute the present value of future payments with due regard for life contingencies, the Commission may, in its discretion, require the employer or insurance carrier to pay into the State Fund an amount equal to the present value of the unpaid installments of compensation. Such payments, however, are made in trust and the Fund thus created is separate and apart from the State Insurance Fund consisting of premiums paid by employers. So far the provisions of Section 27 have not been resorted to by the Commission and no trust fund has been created, ' The effect of the different forms of insurance and the protection which the employer receives against other forms of liability is treated in the sections which follow. 54 woekmen's compensation § 26. Self -insurance. Where the employer fur- nishes satisfactory proof to the Commission of financial ability to pay compensation without insuring, the Com- mission requires a deposit of securities of the kind pre- scribed in Section 13 of the Insurance Law. The amount of securities has been fixed by the Commission in a sum equal to the premium which the employer would pay to the State Fund for a period of six months, with the mini- mum of $5,000. This class of employers are known as self-insurers and are included within the term "insur- ance carrier." Commencing July 1, 1916, and annually thereafter they will be required to pay a proportionate share of the expense incurred by the State in the ad^ ministration of the workmen's compensation law. The employer who gives security for the payment of com- pensation by becoming a self-insurer, assumes the entire responsibility for the payment of compensation. He may, however, guard against catastrophe losses by re- insurance. Compensation is paid directly to employees by self-insurers except where the future installments are commuted into one lump sum and paid to the State Fund in trust, in which event self-insurers become re- lieved from further liability. About 250 employers have become self-insurers under the New York law. They include nearly all the large railroad corporations and many of the largest industries of the state. § 27. Insurance by Stock Companies and Mutual Associations. Insurance with a stock company or a mutual association not only protects the employer against the payment of compensation but against all other forms of liability for injuries received by employ- ees. This protection is afforded through a standard form of insurance policy which covers employees, whether sub- ject to the compensation act or outside of its provisions. An exception is the liability for damages for an injury received by a person employed contrary to the provi- sions of the Labor Ijaw. Where a minor is employed in violation of Section 70 of the Labor Law, women and children in violation of Section 93 or Section 131, and an injury is received, the fact that the injured workman STOCK AND MUTUAL INSUKANCE 55 was employed in violation of the provisions of one of these sections establishes a prima facie case of negli- gence.^ The owner of a building is also held liable where he fails to provide fire escapes as required by the Labor Law/ If an employee injured under these conditions is engaged in a hazardous employment and is within the compensation act, the stock or mutual company must pay the compensation ; but where the case is outside the act and damages are recovered for negligence, the policy of insurance does not protect the employer.' The standard form of workmen's compensation and liability insurance policy does not protect the employer against public liability. If he desires to be indemnified against liability to the public, he must take additional insurance. Mutual Associations are incorporated under Article 5a of the Insurance Law (Chapter 832, Laws of 1913) with authority to carry on the business of insurance on the mutual plan. While the mutual companies were principally intended to insure the payment of compensa- tion, they insure against liability to employees generally and are authorized to insure against liability to the pub- lic. Under the mutual plan, the employer is charged the same rate of insurance as with a stock company. Should there be a surplus after the payment of losses and the setting up of the necessary reserves, the mutual asso- ciation may declare a dividend, subject to the approval of the Insurance Department. If the premiums are not sufficient to pay the losses and establish the necessary reserves, employers, who are members of the association, may be assessed to make up the deficiency. The experience of the past fifty years, in connection with mutual insurance, has shown that in practice, it is sometimes deceptive and unsound. The transaction of the business of insurance, in order to make the contract absolutely secure, involves the creation of surplus funds ' Goetz vs. Duffy, 215 N. Y. S3. ^ GaUenkamp vs. Garvin Co., 179 ' Mason-Henry Press vs. Aetna N. Y. 588. Life Ins. Co., 211 N. Y. 489. Marino vs. Lehmier, 173 N. Y. 530. Holland Laundry vs. Travellers Koaster vs. Rochester Candy Co., Ins. Co., 166 App. Div. 621. 194 N. Y. 92. 56 workmen's compensation to provide against unforeseen contingencies and in this respect the stock companies are superior to mutual asso- ciations. The object of the mutual association is to se- cure compensation and liability insurance at cost. It is supposed to bring the employers together with the result that co-operation is secured, to the end that better condi- tions of safety may be provided for employees. There is always the possibility of assessment in case the associa- tion has insufficient funds to meet its losses and the em- ployer does not know the exact extent of his liability. In the case of a stock company there is no assessment or liability beyond the premium paid on the part of the policyholder, because, in addition to the reserve set up, the company also provides the safeguard of its capital and surplus. As the mutual associations do not pay any commis- sions to agents, the cost of operating is low. Each mem- ber of the association acts, to some extent, as an agent in soliciting new members, but as this is outside of the employer's regular business, it is not always of any ad- vantage either to the employer or to the association. Mutual associations in the State of New York, transact- ing workmen's compensation insurance, have been in existence less than two years and in cases where the premium income is sufficiently large to make the expense ratio small, some of them have made an apparent suc- cess. Nearly all the mutual insurance companies in the State were permitted to declare a dividend of 20 per cent, after their first year. One of the advantages of the stock company over the mutual association rises from the fact, as stated above, that the stock company assumes the entire liability while with the mutual association, the employer has the possi- bility of an assessment to make good deficiencies in case of catastrophe or other unanticipated losses. The stock company absolutely relieves the insured from all re- sponsibility while in the case of the mutual association, the assured is not only operating his own industry but is also engaged in the insurance business, a combination which sometimes does not work out satisfactorily in prac- STATE INSURANCE COVERAGE 57 tice. A stock company has back of it the experience under employers' habihty insurance and has been taught the necessity for accumulating an ample reserve and surplus. By operating on a large scale, it is enabled to obtain a satisfactory average of losses. At the present time, stock companies are transacting over ];hree-quarters of the entire workmen's compensation business. The employer is not relieved from liability under either the stock or mutual plan until the compensation has been paid by the insurance companj^ In this respect stock or mutual insurance differs from insurance with the State Fund, where the only recourse of the injured workman is against the fund itself and the employer is under no liability to pay compensation. However, it will be understood that the State Insurance Fund gives no insurance against employers' liability, but merely covers workmen's compensation. Both stock and mutual companies guard against catastrophe losses, with rein- surance or by providing special reserves. The obligation of the employer to pay for medical treatment for 60 days after the injury is covered by the State Fund and by stock corporations and mutual asso- ciations alike, and if the employer desires to assume this obligation himself a discount of 20 per cent, is given on the premiums. § 28. The State Insurance Fund — Coverage. The State Insurance Fund is established by Article 5 of the Workmen's Compensation Law. Insurance with the State Fund only protects the employer against the payment of compensation. This is made obvious by re- ferring to Section 90 of the act under which the State Fund is created "for the purpose of insuring employers against liability under this chapter and of assuring to the persons entitled thereto the compensation provided by this chapter," and from the standard form of policy issued by the State Insurance Fund which insures "against liability under Chapter 816 of the Laws of 1913, known as the workmen's compensation act and un- der any amendments thereof, heretofore or thereafter adopted." 58 workmen's compensation INCOMPLETE PROTECTION BY STATE INSURANCE FUND. There has been pointed out in Part I of this work many instances where the employer is liable in a suit for damages entirely apart from workmen's compensation. Many employers find themselves with some employees who are subject to the act, some not subject thereto, and others doubtful. In some cases the compensation law fails to provide for the employment and in other cases it fails to provide compensation or death benefits for the injury. Liability still exists in all of these cases, sometimes under the common law and sometimes under Employers' Liability Acts. There is also liability in Ad- miralty as to the operation of vessels, and under the Federal Employers' Liability Act, where the employer is doing the business of a common carrier by railroad and transporting or handling interstate commerce. As to all of the forms of liability described in the first part of this work, aside from compensation, the State Insur- ance Fund gives no protection to the employer. The limited application of the compensation act and the need of combination insurance to fully protect an employer is one of the most serious objections against state compensation insurance. To meet this objection, a resolution was adopted by the Commission when the law first went into operation, reciting that all employees, where a hazardous employment is being conducted, would be considered within the meaning of the Act, and would be held by the Commission to come within its pro- visions. This resolution has no legal effect. In the case of Tomassi vs. CJiristensen, 171 App. Div. 284; 156 N. Y. Supp. 905, decided January, 1916, the Court held that "it was the duty of the Legislature and not of the Commission or of this Court to determine what employ- ments are hazardous," and in the Matter of DeVoe vs. New York State Railways, 169 App. Div. 472; 155 N. Y. Siipp. 12, the Court held that the statute "is not to be extended by implication to accidents not clearly within the language of the Act." The Commission can only exercise such powers as are conferred by statute STATE INSURANCE COVEKAGE 59 and while the Commission is given wide latitude in de- termining claims for compensation, it cannot extend the benefits of the Act to employments which are not within its provisions nor to employees who are not en- titled to its benefits. Like any other administrative body, the Commission must rely upon the construction of the law as laid down by the Courts. The State Fund covers payment of compensation to all employees whether legally employed or not and com- pensation is paid by the State Fund, although the injury is due to a violation of the Labor Law. The State is, therefore, through one department, placed in the anoma- lous position of prosecuting employers for violations of the Labor Law and at the same time protecting them against suits and the payment of compensation for in- juries due to such violations. The elective provisions of the Act, added to Section 2 by the Amendments of 1916, if taken advantage of by employers and employees, will bring all employees with- in the act without regard to the work carried on by the employer or the duties of the employee, and to this ex- tent will permit the State Insurance Fund to give better protection to the employer than formerly. § 29. State Insurance Fund — Release from pay- ment of compensation. The State Insurance Fund was created to provide the industries of the State with in- surance at the lowest cost consistent with political man- agement of business affairs and to provide a safe method of assuring to injured workmen compensation for indus- trial injuries. The rates of insurance for the State Fund are determined by the Commission and operate as a check upon the rates charged by stock and mutual com- panies, which are under no limit except that a minimum has been established by the Insurance Department be- low which stock and mutual companies are not permit- ted to accept insurance risks. The chief advantage which the employer secures by insuring in the State Fund is the release from liability to pay compensation. This release from liability is afforded by Section 53 of the Act under the terms of which a per- 60 ■workmen's compensation son entitled to compensation for personal injuries has recourse only to the State Fund. The same section pro- vides that an employer who does not contribute premiums to the State Fimd shall not be relieved from liability to pay compensation except by payment thereof by himself or his insurance carrier. The experience under the State Insurance Fund in New York State has so far only embraced a period of eighteen months. The history of State insurance in some of the other states demon- strates that at times need will exist for additional funds because of unexpected losses and depleted surplus. There is always danger of a catastrophe which might impose a heavy burden upon the State Fund and no provision is made for reinsurance to protect against such catastrophe losses. Although Section .53 releases the employer from lia- bility to pay compensation, a different question will be presented if the Fund becomes unable to meet the claims of injured workmen. There is no provision in the Act authorizing assessment against employers except that contained in Section 100 relating to employers who with- draw from the Fund and which provides that the em- ployers' liability to assessment shall continue for one year after the date of withdrawal as against all liabilities accruing prior to that time. STATE INSURANCE FUND'S RATES MAY BE READJUSTED, INCREASING EMPLOYERS' CHARGES. The attorney-general, in an opinion dated July 16, 1915, ruled that Section 100 does not authorize the Com- mission to levy assessments against employers who have paid the premiums required by the statute. The at- torney-general, however, overlooked the power of the Commission to readjust rates and an examination of the powers and duties of the Commission in this respect would seem to indicate that employers who remain in the Fund must pay a rate of insurance sufficient to pay all losses. Under any other construction of the statute the solvency of the Fund would depend entirely upon the ability of the Commission to establish rates in the first STATE INSURANCE ASSESSMENTS 61 instance sufficiently large to guard against any financial disaster. Section 95 requires the Commission to fix the rates of premiums in such a manner as to create a solvent fund and a sufficient surplus and reserve. The estab- lished rates may be modified by the Commission at the end of each policy period of six months. As the rates must produce a premium income sufficient to keep the fund solvent, the Commission, in making a readjust- ment at the end of each six months, must take into con- sideration the losses which have accrued as well as those which are anticipated. If the surplus and reserve be depleted, the premiums must be increased until the State Fund is again placed upon a proper financial basis. STATE NOT FINANCIALLY RESPONSIBLE FOR OBLIGATIONS OF STATE INSURANCE. The suggestion that the State is under obligation to make up any deficiency in the Fund has neither legal nor moral foundation. Section 90 of the Act provides that the fund "shall be administered by the Commission without liability on the part of the State beyond the amount of such fund." Employers are, therefore, warn- ed by the Act itself, that the Fund is administered with- out liability on the part of the State and any act of the Legislature appropriating funds for deficiencies in State insurance would not only violate Section 90 of the com- pensation law, but would constitute the taking of prop- erty without due process of law in violation of the State constitution. EMPLOYERS' LIABILITY TO ASSESSMENTS UNDER STATE INSURANCE FUND. The opinion of the attorney-general is entitled to great respect but upon an academic question of this char- acter it has no legal effect. At best it would seem to apply only to employers who withdraw, from the Fund by giving notice within thirty days as provided by Sec- tion 100. Failure to give such notice continues the pol- icy and the employer is required to pay the premium 62 wokkmen's compensation within two weeks aftef notice of the rate and amount thereof. It does not appear equitable to permit the Commission to assess upon the employers who remain in the Fund by adjustment of rates, a sum sufficient to make up deficiencies ; and whether employers who with- draw can be compelled to contribute to such deficiencies will remain unsettled until the question is determined by the Courts. Viewing the provisions from a practical standpoint and having in mind the purpose of assuring compensa- tion to injured workmen and their dependents, the State Insurance Fund will doubtless be construed by the Courts as a State mutual. The employer obtains a re- lease from the payment of individual claims for com- pensation but no further release. Employers as a whole must contribute premiums sufficient to keep the Fimd solvent and carry out its beneficient purpose. § 30. State Insurance Fund — Immunity. When the workmen's compensation law first became effective no claim was made that an employer contributing premi- ums to the State Insurance Fund secured any release from liability under Section 53 of the act, except the release from the payment of compensation. It was then announced that "the State Fund policy gives complete protection under the workmen's compensation act, and the liability of a successful suit at common law by in- jured workmen is so exceedingly remote as to be practi- cally negligible." From time to time various forms of liability outside the compensation act became apparent from judicial decisions. While the State Fund still ad- mits that its policy only covers the payment of compen- sation, it now contends that where an employer insures in the State Fund, the injured employee would be de- prived of any right of action to recover damages, al- though such damages could be recovered against a self- insurer or against an employer insured with a stock company or mutvial association. Referring to the case of Shiimick vs. Clover Farms Co. (Sec. 13 infra), in which the Court held that damages may be recovered for disfigurement, the State Fimd has announced in Vol. 3 STATE INSURANCE IMMUNITY 63 of The Bulletin, published by the New York State In- dustrial Commission: "Had the insurance been carried by the State Fund, Section 53 would have furnished an appar- ently impregnable defense against the suit institut- ed by the employee. The language of this section is broad and sweeping, but also de&iite and explicit. It excludes not only injuries resulting in disability or compensatable injuries, but injuries within the meaning of the definition given in the act. * * * The fact that the insurance of the employer in this case was carried in a stock company deprived him of the special protection afforded by Section 53 of the act." The section in question reads: (Sec. 53.) "An em- ployer securing the payment of compensation by con- tributing premiums to the State Fund shall thereby be- come relieved from all liability for personal injuries or death sustained by his employees, and the person entitled to compensation under this chapter shall have recourse therefor only to the State Fund and not to the employer. An employer shall not otherwise be relieved from the liability for compensation prescribed by this chapter except by the payment thereof by himself or his insur- ance carrier." When all of the provisions of this section are read together, it is obvious that no release is intended from any liability to pay damages outside of the compensa- tion act. The phrase "and the persons entitled to com- pensation under this chapter shall have recourse there- for only to the State Fund" limits the preceding phrase "shall thereby become relieved from all liability for per- sonal injuries or death sustained by his employees." The intention of the section is also made apparent when the last sentence is considered, under which the employer who does not contribute premiums to the State Fund is released, not from all liability, but "from the liability for compensation," upon payment thereof by himself or his insurance carrier. The release is from compensatable injuries. It is secured by State Fund employers be- 64 woukmek's compensation cause payment is assumed by the Fund itself and it is secured by other employers when the compensation has been paid to the injured workman. To support its construction of Section 53, the State Fund relies upon a sentence taken from the opinion of the Court in Matter of Crockett vs. State Insurance Fund, 170 App. Div. 122; 155 N. F. Supp. 692, which reads: "Section 53 of the workmen's compensation act gives absolute immunity to an employer after insurance in the state fund while no such immunity is given after insurance with any other carrier." In the Crockett case, however, the Court was merely deciding upon the right of an employer in the State Fund to appeal from a de- cision made by the Commission. The question of im- munity was not before the Court and the above quota- tion from the opinion cannot be regarded as an author- ity upon the question. A somewhat similar statement, but one which more fully explains the purpose of Section 53 is found in Matter of Post vs. Burger & Gohkle, 216 N. Y. 5U, viz. : "An employer securing payment of compensation by contributing premiums to the said fund is there- by relieved from all liability for personal injuries or death sustained by his employees and a similar relief from liability is obtained by the employer by payment of the compensation by himself or an in- surance carrier (Sec. 53)." The quotation from the decision in the Post case in- dicates that all employers are treated alike and disposes of the claim that the State Fund protects against suits to which employers may be otherwise subject. The State has' not established one rule for employers in the State Fund and another rule for employers who give security for the payment of compensation by one of the other methods provided by the act, nor has the State power to make such discrimination. The liability men- tioned in Section 53 is the liability to pay compensation and the release is a release from that liability alone. Where the compensation act applies the only remedy is the benefits prescribed, but where the act does not ADMINISTRATION OF STATE FUND 65 f'P.ply* the liability of the employer, and the right of the injured workman to recover damages for personal in- juries, remains the same as before the act was adopted. Since the foregoing was written, a decision has been rendered by Supreme Court Justice William S. An- drews in the case of Michael Connors vs. Semet-Solvay Co. (not yet reported) in which it is expressly decided that there is no distinction in the release from liability as between employers who insure in the State Fund and employers who are self -insurers or insure with a stock or mutual company. After quoting Section 53, Judge Andrews states: "It is not possible that a distinction, without rea- son, is here sought to be made between one who in- sures in the State Fund and others who insure as the statute equally permits. The purpose of in- surance is to secure a fund which will protect the servant. In either case this is equally accomplished. There is no purpose to be served in holding the servant may not recover for pain and suffering, if the state is the insurer, yet may do so if a corpora- tion is the one liable. In fact, the Court of Ap- peals seems to have passed upon this question." (Quoting the above extract from Matter of Post.) § 31. Administration of the State Insurance Fund. The entire expense of the State Insurance Fund is paid by the State until July 1, 1916. Subsequent to that time the funds appropriated by the State for carrying on the fund will be restored to the State Treasury out of the premiums paid by employers. The State Fund will also at the same time commence to reimburse the State, together with all other insurance carriers, for its propor- tionate share of the expense of the Commission in con- nection with the examination, determination and pay- ment of claims. Employers in the Fund during the first two years will have had the benefit of a considerable reduction in rates because the expenses have all been paid by the State. It is expected there will always be a reduction from the rates charged by the stock companies because the State Fund pays no commissions to agents. 66 WORKMEN S COMPENSATION Theoretically the Fund ^ill be administered after July 1, 1916, in such manner that the employers will be called upon to contribute only such premiums as will pay com- pensation losses and administration expenses. In this respect the Fund will be similar to the compensation mutuals. But it is claimed by advocates of stock insur- ance that in neither of these classes of insurance does the employer obtain the additional security afforded by the large resources of the stock companies, including their capital and surplus. As already seen, the decisions of the Commission are final upon questions of fact. They are also final upon questions of law as to employers in the State Fund. This was decided in Blatter of Crockett vs. State Insurance Fund, 170 App. Div. 122; 155 N. Y. Supp. 692, where the Court held that an employer carrying compensation insurance in the State Fund could not appeal from a de- cision of the Commission. In this case compensation was awarded to Elizabeth K. Crockett, as widow of Davie M. Crockett, who died as a result of injuries re- ceived while in the employ of the International Railway Company of Buffalo, N. Y. The award was opposed by the employer because the claimant was united in mar- riage to the deceased subsequent to the date of the injury which later resulted in his death. It was contended that she was not a dependent at the time of the accident. The Commission decided that this was immaterial in view of the fact that Section 16 authorizes an award to the "surviving wife." When the case came before the Appellate Division, the appeal filed on behalf of the International Railway Company, was dismissed in an opinion written by Presiding Justice Smith. After re- viewing the provisions of the act relating to appeals and pointing out that the Commission could not certify ques- tions of law involved in decisions where the claim is made against the State Fund, the Court said : "It is true that the employer has a remote in- terest, even though insured in the State Fund, to the end that the risk which he claims not to be with- in the act may be so decided as affecting any subset- ADMINISTRATION OF STATE FUND 67 quent premiums which he must pay. That interest, however, is too remote an interest to authorize his appeal in a matter where he is not otherwise ag- grieved." The injured workman claiming compensation against the State Fund is a party to the proceeding and is given the right of appeal by Section 23 of the act. Under the amendment of 1916, the Commission may now certify questions of law in State Insurance Fund cases, but the employer is still denied the right to appeal. The International Railway Company, in support of its right to appeal in the Crockett case contended that it was directly interested in the award because it had been placed in an individual group. Under this individual grouping plan the company has returned the excess of its premium over losses and reserves, but is liable for no greater sum than the premium, the losses in excess there- of, if any, being made up out of the premiums contrib- uted to the State Fund generally by other employers. The Attorney- General in an opinion dated January 28, 1916, decided that the individual grouping of employers in the State Fund, except under certain conditions, was illegal. The provisions of the act relating to the administra^ tion of the State Fund confer very wide powers upon the Commission. The employer is bound by the decision of the Commission both upon the determination of rates and upon the determination of claims. This centraliza- tion of power in one body leads to a situation under which the compensation act may be administered in one manner as to employers in the State Fund and in a dif- ferent manner as to those Who give security for the payment of compensation by some other method. An active competition for business is conducted be- tween the State Insurance Fund on the one hand, and the stock and mutual insurance companies on the other. This situation was probably never contemplated by the framers of the act who regarded the State Fund more as a check upon the rates which might be charged by in- surance companies and as a safe method of assuring com- 68 workmen's compensation pensation to the injured employee. When carried to any considerable extent, this competition for business may lead to the acceptance of premiums upon employments to which the application of the law is doubtful, and may lead to a situation where awards will be made more to protect the employer from suit than in the interest of the injured workman and which would be denied except that such course might furnish an argument against State insurance. The rule which governs the application of the com- pensation law to the industries of the State, is laid down by the Supreme Court in Matter of Tomassi vs. Chris- tensen, decided January, 1916, 171 App. Div. 284; 156 N. Y. Supp. 905, wherein it is held to be the duty of the Legislature and not of the Commission or of the Court to determine what employments are hazardous. The Court said, "With reference to the act, an employment is either hazardous or non-hazardous and no employ- ment can be treated as hazardous unless the act, fairly construed, declares it such. We cannot give to the lan- guage employed a strained or unusual meaning for the purpose of bringing within the act an employment not intended by the Legislature to be embraced within it." The Court passed upon the same question in Matter of De La Gardelle vs. The Hampton Co., 167 App. Div. 6 17 J 153 N. Y. Supp. 162, and held that the category of occupations within the protection of the statute was not to be extended by judicial determination. It was there said: "Determination as to what employments shall be brought within the operation of the workmen's compensation law involves questions of fact and questions of policy which the Legislature and Gov- ernor must determine." These decisions are binding upon the Commission and no award of compensation can be made simply be- cause the employer has contributed premiums to the State Fund. The Commission is governed by the same rules no matter what the form of insurance. In Matter of Post vs. Burger <& Gohlke, 168 App. Div. 403; 153 ADMINISTEATION Or STATE FUND 69 N. Y. Supp. 505, the Court said that the employer who insured otherwise than in the State Fund should have no advantage or disadvantage in the construction of the statute and that "the law contemplates equality and that all employees and employers shall be measured by the same rule without regard to the particular manner in which the insurance is carried." In the McQueeney case it was said that "it is the right of the individual em- ployee and employer that they should be treated the same as other employees and employers within the act." PART III The Woekmen^s Compensation Law, Annotated. Rules Adopted under the Compensation Law. Index of Hazardous Employments. PART III WORKMEN'S COMPENSATION LAW, ANNOTATED. (Chapter 816 of the Laws of 1913, as re-enacted and amended by Chapter 41 of the Laws of 1914, constitut- ing Chapter 67 of the Consolidated Laws, as amended, including the amendments of 1916.) ARTICLE 1. Short Title; Application; Definitions. Section 1. Short title. 2. Application. 3. Definitions. § 1. Short title. This chapter shall be known as the "workmen's compensation law." In the case of Jensen, Matter of vs. Southern Pacific Company, 215 N. Y. 514, the Court of Appeals decided that the compensation law did not violate the 14th amendment of the Federal constitution. § 2. Application. Compensation provided for in the chapter shall be payable for injuries susitained or death in- curred by employees engaged in the following hazardous employments : The benefits of the compensation law are limited to the hazardous employments enumerated in this section and the list of employments cannot be enlarged either by the Commission or by the Courts. De La Gardelle, Matter of vs. Hampton Company, 167 App. Div. 617; 153 N. Y. Supp. 162. Tomassi, Matter of vs. Christensen, 171 App. Div. 284 ; 156 N. Y. Supp. 905. In determining what employments are included with- in the 42 groups, the rule ejusdem generis will be applied 73 74 . woekmen's compensation and general language will not be extended beyond the special language previously used. Aylesworth, Matter of vs. Phoenix Cheese Co., 170 App. App. Div. 34; 155 N. Y. Supp. 916. Wilson, Matter of vs. Dorflinger^ 4" Sons, 218 N. Y. 84, (Court of Appeals, April 25, 1916.) Group 1. The operation, including construction and repair, of railways operated by steam, electric or other motive power, street railways, and incline railways, but not their construction when constructed by any person other than the company which owns or operates the rail- way, including work of express, sleeping, parlor and din- ing car employees on railway trains. Railroad employees engaged in intrastate work are in- cluded within Group 1. Railroad employees engaged in interstate commerce are also included in Group 1 where the injury is not caused by the negligence of the employer. Where the railroad employee is engaged in interstate commerce and the injury is due to negligence of the em- ployer, the Federal Employers' Liability Act controls. Winfield, Matter of vs. N. Y. Central Sf Hud. River R. R., 168 App. Div. 351 ; 153 N. Y. Supp. 499 ; aif'd. 216 N. Y. 284. An employee of a railroad who has finished operating his car for the day is not engaged in the operation of the railroad within the meaning of Group 1, while proceed- ing to have his watch tested. De Voe, Matter of vs. New York State Railways, 169 App. Div. 472 ; 155 N. Y. Supp. 12. Where a railroad employee is engaged to watch ma- terial adjoining the tracks and is killed while standing upon one of the tracks by a passing train, his widow is entitled to compensation. Claim No.. 31018, White, Matter of vs. New York Cen- tral R. R. Co., 2. N. Y. St. Dep. Rep. 477 ; Aff. 216 N. Y. Memo. 653 (without opinion). (See also Section 114 and cases cited.) Group 2. Construction, repair and operation of rail- ways not included in group one. (Group 2, am'd by L. 1916, Ch. 622, effective June 1, 1916.) GKOUP ANNOTATIONS 75 Group 3. The operation, including construction and repair, of car shops, machine shops, steam and power plants, and other works for the purposes of any such rail- way, or used or to be used in connection with it when oper- ated, constructed or repaired by the company which owns or operates the railway. A repair shop for the repair of engines and cars used both in interstate and intrastate commerce is not an in- strumentality of interstate commerce. Shanks vs. Delaware, Lackawanna (§• Western R. R. Co., 214 N. Y. 413; aff'd. 36 Sup. Ct. Rep. 188 (U. S.). The above case was followed by the Commission in the Matter of George Sauter vs. New York Central R. R. Co., in which an award of compensation was made Oc- tober 20, 1915, for the loss of an arm due to an injury received whUe repairing windows in a car shop. Group 4. The operation, including construction and re- pair of car shops, machine shops, steam and power plants, not included in group three. Group 5. The operation, including construction and repair, of telephone lines and wires for the purposes of the business of a telephone company, or used or to be used in connection with its business, when constructed or oper- ated by the company. 'Group 6. The operation, including construction and repair, of telegraph lines and wires for the purposes of the business of a telegraph company, or used or to be used in connection with its business, when constructed or oper- ated by the company. Group 7. Construction or repair of telegraph and telephone lines not included in groups five and six. (Group 7, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 8. The operation, within or without the state, including repair, of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company ; marine wreck- ing. (Group 8, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Longshore work is not included within the operation of vessels. Jensen, Matter of vs. Southern Pacific Co., 215 N. Y. 614. 76 The captain of a "lighter" assisting in unloading his vessel in one of the harbors of the State of New Jersey- is engaged in the operation of the vessel and is entitled to compensation under Group 8. Edwardsen, Matter of vs. Jarvis Lighterage Co., 168 App. Div. 368; 163 N. Y. Supp. 391*. A resident of New York State is not entitled to com- pensation for injuries received while engaged in the operation of a vessel of another state. File No. 259, Coons, Matter of vs. Kennedy Towing Co., State Industrial Commission. Claim No. 47205, Underwood, Matter of vs. Internation- al Elevating Co., Workmen's Compensation Commission. Claim No. 28745, Chas. Horan, deceased, vs. Tidewater Trans. Co., Workmen's Comp. Com., April 30, 1915. An employee residing in Brooklyn working as an oiler on a steamship owned by a Kentucky corporation, is not entitled to compensation. Sorensen, Matter of vs. Southern Pacific Co., Work- men's Compensation Commission. Compensation denied where the employee was injured while on a fishing trip in which all members of the crew shared the profits with the owner. Claim No. 24213, James J. McGraff, deceased, vs. Rob- ert Tapper, Workmen's Compensation Commission. Where a person employed on a float was drowned in an unexplained manner, the body being found in the water three days later, compensation was awarded to the dependents. File No. 575, August Tirre, deceased vs. Bush Terrmnal Co., St. Ind. Com. Oct. 27, 1915. (Award reversed on question of dependency) App. Div. Third Dept. May 2, 1916, opinion by Lyon, J. Where the captain of a vessel received wages at the rate of $50 per month including the services of his wife, the wife was held to be an employee and compensation was awarded at the rate of $3.85 per week. Claim No. 31770, Mary Secor, Matter of vs. J as. A. Cullen, Jr., State Industrial Commission, July 26, 1915. GROUP ANNOTATIONS 77 Group. 9. Shipbuilding, including construction and re- pair in a ship-yard or elsewhere, not included in group eight. Group 10. Longshore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other prod- ucts or materials, or moving or handling the same on any dock, platform or place, or in any warehouse or other place of storage. Where a longshoreman is injured upon a vessel upon the navigable waters of the United States, including ves- sels tied to a dock, he has the option of claiming com- pensation or instituting a suit in Admiralty. Walker, Matter of vs. Clyde S. S. Co., 215 N. Y. 529. In the case of Burns, Matter of vs. Southern Pacific Co., 215 N. Y. Memo 738, the injury was received while the claimant was working on the dock and while the point was not expressly decided, the award being affirmed un- der the authority of the Walker case, it would seem to foUow from the case of Atlantic Transport Co., vs. Im- hroveli, 234 U. S. 52, that compensation is the only rem- edy where the injury does not happen on the vessel. in Jensen, Matter of vs. Southern Pacific Co., 215 N. Y. 514, the injury occurred while the longshoreman was at work on a gang plank between the vessel and the dock. The Court did not decide whether an employee injured under such circumstances had an option of rem- edies. An employee sorting refuse which has been dumped from vessels is not engaged in longshore work. Tomassi, Matter of vs. Christensen, 171 App. Div. 284 ; 156 N. Y. Supp. 905. Employees engaged in ice harvesting were held by the Commission to be engaged in longshore work, but an employee engaged in ice harvesting was denied compen- sation by the Court in the case of Aylesworth, Matter of vs. Phoenix Cheese Co., 170 App. Div. 34; 155 N. Y. Supp. 916. For a case m which a longshoreman in the employ of 78 WOKKMEN*S COMPENSATION a firm of stevedores was loaned to another firm, both firms being engaged in unloading the same vessel, in which it was held that the longshoreman was an employee of the latter, see. File No. 7165, Sala, Matter of vs. Martarella cmd Gian- nessi. The Bulletin, Vol. 1, No. 6, page 11. An employer furnishing a watchman for cargoes on piers is engaged in longshore work. Axel Oherg, Matter of vs. W. J. McRoberts ^ Co., State Industrial Com., Dec. 20, 1915. (On appeal.) A person employed by a steamship company to watch the pier and boats while being loaded and unloaded is en- gaged in longshore work, Frank J. Rodgers, Matter of vs. Oceanic S. S. Naviga- tion Co., State Industrial Com., Jan. 26, 1916. Group 11. Dredging, subaqueous or caisson construc- tion or repair, and pile driving. (Group 11, am'd by L. 1916, Ch. 622, effective June 1, 1916.) An employee receiving an injury while driving sheet- ing is engaged in pile driving within the meaning of this group. Claim No. 70995, Mazzarisi, Matter of vs. Ward and Tully, 170 App. Div. 868; 156 N. Y. Supp. 964. Where an employee residing on a dredge, received permission to go ashore; fell from the landing place and was drowned while waiting for a boat to take him back to the dredge, the widow was awarded compensa- tion. Claim No. 12205, Albert Berg, deceased, vs. Great Lakes Dredge Sj" Dock Co., State Industrial Commission, July 16, 1915. (Award reversed, App. Div., Third Dept., May 2, 1916, opinion by Cochrane, J.) Group 12. Construction, installation, repair or oper- ation of electric light and electric power lines, dynamos, or appliances, and power transmission lines. (Group 12, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 13. Paving; road building, curb and sidewalk construction or repair; sewer and subway construction or repair, work under compressed air, excavation, tunneling and shaft sinking, well digging, laying and repair of un- GEOUP ANNOTATIONS 79 derground pipes, cables and wires, not included in other groups ; street cleaning, ashes, garbage or snow removal ; operation of waterworks. (Group 13, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Compensation was awarded in the following cases where the employee was engaged in subway construc- tion: Where the employee was killed by a train while cross- ing the subway tracks to reach the street after quitting work, although it was unnecessary to cross the track. Di Paola, Matter of vs. Crimins Contracting Co., State Industrial Commission, Nov. 3, 1916. (Aff. App. Div., Third Department, May 2, 1916.) Where the employee was injured while leaving the subway after having been discharged for the day. Claim No. 225 n. c, Kiernan, Matter of vs. Freidstadt Underpinning Co., 157 N. Y. Supp. 900 ; App. Div. Where the employee was killed by falling into an open sewer while attending a call of nature. Claim No. 5869 n. c, Cino, Matter of vs. Norton 8f Gor- man Cont. Co., Aff. 156 N. Y. Supp. 1117. (Without opinion.) Group 14. Lumbering; logging, river-driving, rafting, booming, saw mills, bark mills ; shingle mills, lath mills, lumber yards ; manufacture of veneer and of excelsior ; manufacture of barrels, kegs, vats, tubs, staves, spokes or headings. (Group 14, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 15. Pulp and paper mills. Group 16. Manufacture of furniture, interior wood- work, organs, pianos, piano actions, canoes, small boats, coffins,^ wicker and rattan ware ; upholstering ; manufac- ture of mattresses or bed springs. Group 17. Planing mills, sash and door factories, manufacture of wooden and corrugated paper boxes, cheese boxes, mouldings, window and door screens, win- dow shades, carpet sweepers, wooden toys, wooden articles and wares or baskets; cork cutting. (Group 17, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 18. Mining; reduction of ores and smelting; 80 workmen's compensation preparation of metals or minerals ; oil and gas wells. (Group 18, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 19. Quarries; sand, shale, clay or gravel pits, lime kilns ; manufacture of brick, tile, terra-cotta, asbestos, fire-proofing, or paving blocks, majiufacture of calcium carbide, cement, asphalt or paving material; stone crush- ing or grinding. (Group 19, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 20. Manufacture of glass, glass products, glassware, porcelain or pottery. A firm engaged in cutting up and beveling glass for the purpose of making looking glasses is engaged in the manufacture .of glass products within the meaning of this group, and compensation was awarded where the employee was injured while lifting glass from a table. McQueeney, Matter of vs. Sutphen ^ Meyer, 167 App. Div. 528; 1.53 N. Y. Supp. 554.. Group 21. Iron, steel or metal foundries ; rolling mills ; manufacture of castings, forgings, heavy engines, loco- motives, machinery, safes, anchors, cables, rails, shaft- ing, wires, tubing, pipes, sheet metals, boilers, furnaces, stoves, structural steel, iron or metal ; machine shops in- cluding repairs. (Group 21, am'd by L. 1916, Ch. 622, effective June 1, 1916.) A salesman injured while installing machinery is en- titled to compensation. File No. 1383, Benton, Matter of vs. Fraser, Aff. 156 N. Y. Supp. 1115. (Without opinion.) Group 22. Operation and repair of stationary engines and boilers, freight and passenger elevators, not included in other groups ; window cleaning ; heating and lighting. (Group 22, am'd by L. 1916, Ch. 622, effective June 1, 1916.) The Commission has ruled that janitors and other employees who are required to operate stationary en- gines or boilers are entitled to compensation for an injury received in connection with this work. In Claim No, 5539, Pranio. Matter of vs. Peloso, 155 N. Y, Supp. 1135 (no opinion), the Appellate Division affirmed an GEOUP ANNOTATIONS 81 award where the janitor was injured while chopping wood for use in the boiler. Group 23. Manufacture of small castings or forgings, metal wares, instruments, utensils and articles, hardware, nails, wire goods, screws, bolts, metal beds, sanitary, water, gas or electric fixtures, light machines, typewriters, cash registers, adding machines, carriage mountings, bicycles, metal toys, tools, cutlery, instruments, photographic cam- eras and supplies, sheet metal products, buttons; jewelry; gold, silver and plated ware; articles of bone, ivory and shell. (Group 23, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Horse-shoeing was placed in this group by the Com- mission, but the Appellate Division held in the case of Grady, Matter of vs. Holliday, 155 N. Y. Supp. 1110, that the business of horseshoeing was not included and an award of compensation made by the Commission was set aside. See Group 24 as amended, which now in- cludes horseshoers. Group 24. Manufacture of agricultural implements, threshing machines, traction engines, wagons, carriages, sleighs, vehicles, automobiles, motor trucks, toy wagons, sleighs or baby carriages; blacksmiths; horse-shoers. (Group 24, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 25. Manufacture of explosives and dangerous chemicals, corrosive acids or salts, ammonia, gasoline, petroleum, petroleum products, celluloid, gas, charcoal, ar- tificial ice, gun powder or ammunition ; ice harvesting, ice storage and ice distribution. (Group 25, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 26. Manufacture of paint, color, varnish, oil, japans, turpentine, printing and other ink, printers' roll- ers, tar, tarred, pitched or asphalted paper. (Group 26, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 27. Distilleries, breweries; manufacture of spirituous or malt liquors, alcohol, wine, mineral water or soda waters; bottling. (Group 27, am'd by L. 1916, Ch. 622, effective June 1, 1916.) An employee working for a firm engaged in the manu- facture of soda, ice cream and candy, to be sold on the 82 woekmen's compensation premises, was awarded compensation for an injury re- ceived while cleaning glasses. Paulsen, Matter of vs. Schulmbohn, 5 N. Y. St. Dep. Rep. 112. Group 28. Manufacture of drugs and chemicals, not specified in group twenty-five, medicines, dyes, extracts, pharmaceutical or toilet preparations, soaps, candles, per- fumes, non-corrosive acids or chemical preparations, fer- tilizers, including garbage or sewerage disposal plants; shoe blacking or polish. (Group 28, am'd by L. 1916, Ch. 622, effective June 1, 1916.) A wholesale druggist is engaged in the manufacture of drugs and chemicals within the meaning of this group and compensation was awarded to the dependents of one employed as a handy man, who was injured by falling down an elevator shaft while putting up a shelf. Lai-sen, Matter of vs. Paine Drug Company, 169 App. Div. 838; 155 N. Y. Supp. 759. Aff N. Y. (Court of Appeals, May 12, 1916, opinion by Hiscock, J.) A salesman injured by falling on the stairs while going from the factory room to the office room on separate floors in a loft building is entitled to compensation. File No. 419, Nicholson, Matter of vs. Klipstein c§- Co. Aff. 155 N. Y. Supp. 1127. (Without opinion.) This group does not cover a person injured while sort- ing refuse at a city dump. Tomassi, Matter of vs. Chris tensen, Jr., 171 App. Div. 284;156N.Y. Supp. 905. 'Group 29. Milling; manufacture of cereals or cattle foods, warehousing; storage of all kinds and storage for hire; operation of grain elevators. (Group 29, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Storage means a place of storage where the goods of others are kept for hire and does not include a store house in connection with a wholesale establishment in which a wholesaler keeps his own surplus goods. Mihn, Matter of vs. Hussey, 169 App. Div. 742; 155 N. Y. Supp. 860. GROUP ANNOTATIONS 83 An employee engaged in buying and selling fruit for a firm engaged in the storage business is not entitled to compensation under this group. Sickles, Matter of vs. Ballston Refrigerator Co., 171 App. Div. 123; 156 N. Y. Supp. 864. Where the employer was engaged in the storage, re- pair and sale of furniture, and the employee was injured while taking down a rug rack to make room for the stor- age of goods, compensation was awarded. Claim No. 45, George Burton, Matter of vs. James A. Whalen ^ Sons, Aff. 156 N. Y. Supp. 1117. (Without opinion.) This group was amended in 1916 to include storage of all kinds as well as storage for hire and the decision in Mihn m. Ilussey, has no application since the amend- ment became effective. Group 30. Packing houses, meat markets, abattoirs, manufacture or preparation of meats or meat products or glue, gelatine, paste or wax. (Group 30, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Groups 30 and 33 do not cover the preparation of meat or foodstuffs for cooking purposes for domestic service or in hotels or restaurants, and a butcher or chef in a hotel is not covered. De La Gardelle, Matter of vs. Hampton Co., 167 App. Div. 617; 153 N. Y. Supp. 162. An employee in a retail meat market injured while preparing meat in an electric meat chopper is within this group. Kohler, Matter of vs. Frohmann, 167 App. Div. 533; 153 N. Y. Supp. 559. An employer conducting a retail meat market is not engaged in the preparation of meat or meat products within the meaning of this group, and compensation was denied where a clerk and delivery man in a meat market received a fatal injury while delivering meat on foot. Newman, ]\Iatter of vs. Newman, 169 App. Div. 745; 155 N. Y. Supp. 665. Meat markets are expressly included under the 84 workmen's compensation amendment of this group as made by the Legislature in 1916. Group 31. Tanneries. Group 32. Furriers ; manufacture of leather goods and products, belting, saddlery, harness, trunks, valises, boots, shoes, gloves, umbrellas, rubber goods, rubber shoes, tub- ing, tires or hose. (Group 32, am'd by L. 1916, Ch. 622, eifective June 1, 1916.) Group 33. Canning or preparation of fruit, vegetables, fish or food stuffs ; pickle factories and sugar refineries ; manufacture of dairy products. (Group 33, am'd by L. 1916, Ch. 622, effective Jane 1, 1916.) A person employed to harvest ice for a company en- gaged in the manufacture of cheese is not employed in the preparation of food stuffs. Aylesworth, Matter of vs. Phoenias Cheese Co., 170 App. Div. 34; 155 N. Y. Supp. 916. Ice harvesting, storage and distribution are now in- cluded in Group 25. (See also De La Gardelle vs. The Hampton Co., 167 App. Div. 617 ; 153 N. Y. Supp. 162.) Group 34. Bakeries, including manufacture of crack- ers and biscuits, manufacture of confectionery, spices or condiments. Group 35. Manufacture of tobacco, cigars, cigarettes or tobacco products. Group 36. Manufacture of cordage, ropes, fibre, brooms or brushes ; manilla or hemp products. Group 37. Flax mills ; manufacture of textiles or fabric, spinning, weaving and knitting manufactories; manufac- ture of yam, thread, hosiery, cloth, blankets, carpets, can- vas, bags, shoddy or felt. Group 38. Manufacture of men's or women's clothing, white wear, shirts, collars, corsets, hats, caps, furs or robes, or other articles from textile or fabrics. (Group 38, am'd by t. 1916, Ch. 622, effective June 1, 1916.) A model employed by a firm engaged in the manufac- ture of clothing is entitled to compensation under this group. Claim No. 74369, Bloomfield, Matter of vs. November, Aff. 156 N. Y. Supp. 1116. (Without opinion.) A salesman employed by a firm in the manufacture of GROUP ANNOTATIONS 85 clothing may receive compensation for an injury re- ceived on the employer's premises in the course of his employment. File No. 761. Berlinger, Matter of vs. Ritchie 4" Cor- nell, Aff. 156 N. Y. Supp. 1115. (Without opinion.) A salesman employed by a firm engaged in the manu- facture of women's clothing is not entitled to compen- sation for an injury received while passing through the factory caused by slipping on the floor. Lyon, Matter of vs. Windsor (J- Davis, App. Div., Third Dept., May Term 1916, opinion by Woodward, J.; Kel- logg, P. J., dissenting. The manufacture of men's or women's clothing in- cludes the manufacture of boys' or girls' clothing. ( Gen- eral Construction Law, Sec. 29, Sec. 55.) A tailor working by the piece at his own residence is an employee engaged in the manufacture of clothing. Claim No. 23927, Fiocca, Matter of vs. Dillon, State Industrial Commission, Feb. 10, 1916. The Bulletin, Vol. 1, No. 6, page 13. Group 39. Power laundries ; dyeing, cleaning or bleach- ing. Group 40. Printing, engraving, photo-engraving, stere- otyping, electrotyping, lithographing, embossing; manu- facture of moving picture machines and films ; manufac- ture of stationery, paper, cardboard boxes, bags, or wall- paper; and bookbinding. (Group 40, am'd by L. 1916, Ch. 622, effective June 1, 1916.) Group 41. The operation, otherwise than on tracks, on streets, highways, or elsewhere of ears, trucks, wagons or other vehicles, and rollers and engines, propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses or mules ; public garages, livery, board- ing or sales stables; movers of all kinds. (Group 41, am'd by L. 1916, Ch. 622, effective June 1, 1916.) A stableman employed by an express company is en- gaged in the operation of a vehicle within the meaning of Group 41. Costello, Matter of vs. (Taylor) American Express Co., 217 N. Y. 179. 86 workmen's compensation A driver of a truck is engaged in the operation of a vehicle while caring for his team of horses in the stable at the end of the day's work. Smith, Matter of vs. Price, 168 App. Div. 421 ; 163 N. Y. Supp. 221. A driver was awarded compensation for the loss of an eye due to an accident while disinfecting stables. Walker, Matter of vs. M. Mossom Company, 3 N. Y. St. Dep. Rep. 362. "The loading and unloading of the wagon, the neces- sary care and attention to the wagon and to the horses ; any act which falls within his duty as a teamster is within the protection of the law." Dale, Matter of vs. Sawnder Brothers, App. Div. ; 157 N. Y. Supp. 1062; Aff. 218 N. Y. 59. A helper on a truck is engaged in the operation of a vehicle. Hendricks, Matter of vs. Seaman Brothers, 170 App. Div. 133; 155 N. Y. Supp. 638. A porter receiving an injury while operating a hand truck was held to be engaged in the operation of a ve- hicle. Claim No. 24089, Vincent Farrar, Matter of vs. Gristede Bros., Inc., State Industrial Commission, January 19, 1916. A delivery man making deliveries from a store on foot after putting up his horse and wagon for the day is not subject to the compensation law. Newman, Matter of vs. Newman, 169 App. Div. 745; 155 N. Y. Supp. 665. Compensation was denied where a clerk in a meat market was injured while going from the market to a wagon to assist in unloading meat. File No. 2913, Matter of Henry F. Buggel, State In- dustrial Commission, January 13, 1916. An elevator is not a vehicle within the meaning of Group 41. Wilson, Matter of vs. C. Dorflinger ^ Sons, 218 N. Y. 84 (Court of Appeals, Apr. 25, 1916), reversing 170 App. Div. 119; 155 N. Y. Supp. 875. GROUP ANNOTATIONS 87 (Both freight and passenger elevators were included in Group 22 by the amendments of 1916.) The dependents of a superintendent of a building re- quired to operate an elevator were awarded compensa- tion where the employee was found dead at the bottom of the elevator shaft. Sterling, Matter of vs. Western Union Telegraph Co., The Bulletin, Vol. 1, No. 3, page 10. Where a watchman who was required to operate an elevator was found dead at the bottom of the elevator shaft, it was decided that the injury was due to the oper- ation of an elevator and that compensation should be paid under Group 41. Claim No. 350, William Fogarty, deceased, vs. National Bisctdt Co., St. Ind. Com., Feb. 3, 1916, The Bulletin, Vol. 1, No. 6, p. 9. Compensation awarded where the employee was in- jured while using a freight elevator. Claim No. 70685, Martucci, Matter of vs. Hills Broth- ers Co., 171 App. Div. 370 ; 156 N. Y. Supp. 833. Compensation awarded under Group 41 where the employee was a porter and elevator man and was injured by falling on the stairs immediately after quitting work and leaving the elevator. Claim No. 57177, Foley, Matter of vs. Bretton Hall Company, Aff. 156 N. Y. Supp. 1122. (Without opinion.) Compensation was denied to dependents of an em- ployee working as a night watchman who also operated an elevator and who was found dead near the doorway of the premises. The business of the employer was not classified as hazardous and there was no proof connecting the employee's death with the operation of the elevator. MichaA Fitzgibbons, deceased, vs. Clarence S. Wood- ward, State Industrial Commission, November 24, 1915. (The decisions in Matter of Sterling, Fogarty, Fitz- gibbons, Martucci and Foley, all elevator cases, were made before the decision of the Court of Appeals in Matter of Wilson. They may be regarded as authori- ties, however, for accidents subsequent to June 1, 1916, 88 wokkmen's compensation from and after which elevators are included in Group 22.) Group 4>2. Stone cutting or dressing; marble works; manufacture of artificial stone; steel building and bridge construction or repair ; installation ob repair of elevators, fire escapes, boilers, engines or heavy machinery; brick- laying, tile-laying, mason work, stone-setting, concrete work, plastering; and manufacture of concrete blocks; structural carpentry; painting, papering, picture hang^ ing, glazing,' decorating or renovating ; sheet metal work ; roofing; construction, repair and demolition of build- ings or contents ; bridges and other structures ; salvage of buildings or contents ; plumbing, sanitary lighting or heat- ing installation or repair; installation and covering of pipes or boilers; junk dealers. (Group 42, am'd by L. 1916, Ch. 622, effective June 1, 1916.) A janitor who also repairs the building is not entitled to compensation under this group unless injured while engaged in repair work, and compensation was denied where the injury happened while the janitor was putting a flag on a flagpole. Gleisner, Matter of vs. Gross Sf Herbener, 170 App. Div. •37;155N. Y. Supp. 946. A carpenter employed casually to repair buildings is not covered by this group. Bargey, Matter of vs. Massaro Macaroni Co., 170 App. Div. 103; 155 N. Y. Supp. 1076. An employee receiving an injury while working upon a stone crusher for a general contractor is entitled to compensation. Claim No. 26818, Dolici, Matter of vs. Chas. A. Meyer Cont. Co., Aff. 156 N. Y. Supp. 1120. (Without opinion. ) Group 43. Any employment enumerated in the fore- going groups and carried on by the state or a municipal corporation or other subdivision thereof, notwithstanding the definition of the term "employment" in subdivision five of section three of this chapter. (Group 43 added by L. 1916, Ch. 622, effective June 1, 1916.) The State and municipal corporations were included within the term "employer" by Chapter 316, Laws of ELECTIVE PROVISIONS 89 1914, which amended Subdivision 3 of Section 3. The Attorney-General, in an opinion dated June 9, 1914, held that employees of the State and of a municipal corporation were not subject to the law except where such employees were engaged in hazardous employments carried on for pecuniary gain. Subsequently, the At- torney-General advised the Commission by letter, in ef- fect, that neither the State nor a municipal corporation could carry on an employment for pecuniary gain. The effect of these rulings of the Attorney- General was to exclude all employees of the State and municipal cor- porations from the benefits of the compensation law. Group 43 expressly includes employees of the State or of municipal corporations engaged in any employment cov- ered by the preceding 42 groups, without regard to the question of pecuniary gain. The State or a municipal corporation having employ- ees subject to the Compensation Law is bound by all provisions of the act. Security for the payment of com- pensation must be provided through one of the methods mentioned in Section .50, otherwise, in case of a suit for negligence, the State or the municipal corporation will be deprived of the defenses of contributory negligence, assumed risk and negligence of fellow employees. SECTION 2, CONTINUED. ELECTIVE PROVISIONS. Any employer not carrying on one of the employments enumerated in this section, or who carrying on one of such employments has in his employ an employeie not included within the term "employee" as defined by section three of tliis chapter, and the employees of any such employer may, by their joint election, elect to become subject to the pro- visions of this chapter in the manner hereinafter provided. Such election on the part of the employer shall be made by posting notices thereof about the place where the work- men are employed, in a manner to be prescribed by rules to be adopted by the commission, and by filing with the commission a written statement, in a form to be prescribed by the commission, to the effect that he accepts the pro- visions of this chapter and that he adopts subject to the 90 workmen's compensation approval of the commission one of the methods of securing compensation to his employees prescribed in section fifty of this chapter which, when so filed with and approved by the commission as to form and method of securing com- pensation shall operate to subject him to the provisions of this chapter and of all acts amendatory thereof for the period of one year from the date of such approval, and thereafter without further act on his part for successive terms of one year each, unless such employer shall, at least sixty days prior to the expiration of such first or any succeeding year, file with the commission a notice in writing that he withdraws his election. Any employee in the service of any such employer shall be deemed to have accepted, and shall be subject to the provisions of this chapter and any act amendatory thereof, if, at the time of the accident for which liability is claimed, the employer charged with such liability has not with- drawn his election and the employee shall not at the time of entering into his contract of hire have given to his em- ployer notice in writing that he elects not to be subject to the provisions of this chapter and filed a copy thereof with the commission, or in the event that such contract for hire was made in advance of the election of the employer, such employee shall not have given to his employer and filed with the commission within twenty days after such election notice in writing that he elects not to be subject to such provisions. A minor employee shall be deemed sui juris fox the pur- pose of making such an election. The rights and remedies, benefits and liabilities of an employer or employee so electing to become subject to the provisions of this chapter shall thereupon become the same as they would have been had they been engaged in one of the occupations or employments enumerated herein and the words employer or employee wherever they appear in this chapter shall be construed as including an employer or employee who has so elected to become subject to its provisions. (The above portion of Section 2 relating to employers and employees who may become subject to the compensation law, by their joint election, added by L. 1916, Ch. 622, effective June 1, 1916.) The above elective provision should be read in connect tion with Article 14 of the Labor Law, printed in full in the Appendix. Any provision of such article of the DEFINITIONS ANNOTATED 91 Labor Law inconsistent with the foregoing is repealed by L. 1916, Ch. 622, Section 15, effective June 1, 1916. § 3. Definition. As used in this chapter, 1. "Hazard- ous employment" means a work or occupation described in section two of this chapter. The benefits of the compensation law are limited to the hazardous employments enumerated in Section 2. De La Gardelle, Matter of vs. The Hampton Co., 167 App. Div. 617; 153 N. Y. Supp. 162. Tomassi, Matter of vs. Christensen, 171 App. Div. 284! ; 156 N. Y. Supp. 905. Undertaldng and embalming is not included as a haz- ardous employment. Claim No. 57508, Folei/, Matter of vs. Peter F. Doran, Workmen's Comp. Com., March 29, 1915. While an undertaker is not engaged in a hazardous employment, an employee working as a helper and driv- er of a vehicle is entitled to compensation under Group 41. Claim No. 56433, John T. Hillary, Matter of vs. Kauf- man Brothers, State Industrial Commission, Jan. 3, 1916. A wholesale dealer is not engaged in a hazardous em- ployment and compensation was denied to the widow of a salesman and buyer, who was drowned by the sinking of the Lusitania. File No. 449, Charles V. Mills, Matter of vs. L. B. Locke <§• Potts, State Industrial Commission, July 12, 1915. The operation of theatres is not classified as hazardous and compensation was denied to the widow of a property man killed by falling through a trap door. Claim No. 52437, Samuel Adler, deceased. Matter of vs. ThomashefsJcy Theatre Co., Workmen's Comp. Com. Compensation was also denied where a property man was injured by falling over some steps. Claim No. 50284, Chas. O'Neill, Matter of vs. Booth Theatre, State Industrial Commission, Nov. 29, 1915. The manager or superintendent of a hotel injured 92 woekmen's compensation while repairing the premises is not engaged in a hazard- ous employment. J. Irving Godder, Matter of vs. Hartt, et al., State In- dustrial Commission, Feb. 9, 1916. While the operation of a garage was not a hazardous employment prior to the amendments of 1916, which in- cluded the operation of a garage in Group 41, an officer of a company conducting such business, injured while driving an automobile was held entitled to compensation as engaged in the operation of a vehicle. Claim No. 37170, Albert Keffer, Matter of vs. Yonkers Auto Repair Co., State Industrial Commission. In the case of Aylesworth, Matter of vs. Phoenix Cheese Co., 170 App. Div. 34; 155 N. Y. Supp. 916, the Appellate Division held that ice harvesting was not a hazardous employment. Ice harvesting is now included in Group 25 under the amendments of 1916, effective June 1, 1916. The operation of lumber yards was not expressly in- cluded as a hazardous employment until the amendments of 1916, which added this employment to Group 14, and in Claim No. 3181, Samuel Lepidus, Matter of vs. Em- pire City Lumber Co., decided January 26, 1916, com- pensation was denied where an employee was injured while unloading and piling lumber in a lumber yard. 2. "Commission" means the state industrial commis- sion, as constituted by this chapter. ( Subd. 2 am'd by L. 1916, Ch. 622.) 3. "Employer," except when otherwise expressly stat- ed, means a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, associa- tion or corporation, employing workmen in hazardous em- ployments including the state and a municipal corporation or other political subdivision thereof. (Subd. 3 am'd by L. 1914, Ch. 316.) An employer conducting a non-hazardous employ- ment is not liable for compensation except where the injury is occasioned while the employee is engaged in work expressly declared hazardous by the Act. DEFINITIONS ANNOTATED 93 Gleisner, Matter of vs. Gross 4" Herbener, 170 App. Div. 37 ; 155 N. Y. Supp. 946. Newman, Matter of vs. Newman, 169 App. Div. 745; 155 N. Y. Supp. 665. Where the employer is carrying on one employment which is hazardous and another employment which is not within the Act, no compensation is payable for an injury received in the latter employment. Sickles, Matter of vs. Ballston Refrig. Storage Co., 171 App. Div. 123 ; 156 N. Y. Supp. 804. Aylesworth, Matter of vs. Phoenix Cheese Co., 170 App. Div. 34; 155 N. Y. Supp. 916. An employer repairing his building is not engaged in the business of repair of buildings or structural car- pentry. Bargey, Matter of vs. Massaro Macaroni Co., 170 App. Div. 103; 155 N. Y. Supp. 1076. Where a person hires a wagon, team and driver and has control and direction over the work, the driver is an employee of such person, although employed and paid by the owner of the team and wagon. Claim No. 25199, Gimher, Matter of vs. T. P. Kane Co., 2 N. Y. St. Dep. Rep. 475; Aff. 155 N. Y. Supp. 1109. (Without opinion.) Claim No. 54558, Nolan, Matter of vs. Crawford Com- pany, 4#N. Y. St. Dep. Rep. 337 ; Aff. 155 N. Y. Supp. 1128. (Without opinion.) Where the owner of the team retains control over the driver, the owner is held to be the employer although the driver is performing work for another. It seems that both the owner of the team and the per- son for whom the team is working may be regarded as employers and both may be liable for compensation. Dale, Matter of vs. Saunder Brothers, 157 N. Y. Supp. 1062 ; App. Div. , Third Dept., March 8, 1916 ; Aff. 218 N. Y. 59 (Court of Appeals, April 25, 1916.) Where the claimant was one of two brothers who called themselves co-partners and it appeared that the claimant received a share of the profits but worked on a salary and was not liable for debts it was held that the 94 workmen's compensation claimant was an employee instead of a co-partner, and entitled to compensation. Claim No. 63985, Walter E. Myerhof, Matter of vs. Myerhof Brothers, State Industrial Commission, Oct. 20, 1915. In Claim No. 8567, Sol Turoff, Matter of vs. Archer Detective Agency and The United Fruit Co., where the detective agency furnished employees to the latter to perform longshore work, receiving a commission on the wages which were paid to the employees by the detective agency, such employees were held to be in the employ of the United Fruit Co., which had control over the work. Where a firm of coal dealers employed a truckman at the request of a customer to deliver a load of coal, the truclonan was held to be an employee of the coal dealers. Claim No. 52857. Christopher Beck, deceased, vs. Nichols 8c Webster, State Industrial Commission, Nov. 15, 1915. Where there is a dispute as to the employer, the ques- tion involved is a question of fact upon which the de- cision of the Commission is final. Dale, Matter of vs. Saunder Brothers, 218 N. Y. 59, (Court of Appeals, Apr. 25, 1916.) 4. "Employee" means a person engaged in one of the occupations enumerated in section two or vho is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his em- ployment away from the plant of his employer ;, and shall not include farm laborers or domestic servants. (Subd. 4, am'd by L. 1916, Ch. 622, effective June 1, 1916.) An employee receiving an injury in the course of his employment, where both the employee and the employer are residents of New York State and the contract of em- ployment was made in this State, is entitled to compen- sation where the injury was received in another State. Valentine, Matter of vs. Smith Angevme Co., 2 N. Y. St. Dep. Rep. 460; Aff. 216 N. Y. 544. Post, Matter of vs. Burger ^ Gohlke, 153 N. Y. Supp. 505; 168 App. Div. 403; Aff. 216 N. Y. 544. DEFINITIONS ANNOTATED 95 Dependents of an employee, a resident of New Jersey, employed in this State to perform work in West Vir- ginia, are not entitled to compensation where the em- ploj^ee's death was due to injuries received while at work in West Virginia. File No. 291, Lloyd vs. Power Specialty Company, State Industrial Com., The Bulletin, Vol. 1, No. 6, page 9. A resident of this State employed by another resident of the State to perform work entirely in another state is not entitled to compensation under the Compensation Law of New York. Gardner, Matter of vs. Horsehead's Construction Co., 171 App. Div. 66 ; 156 N. Y. Supp. 899. Claim No. 39670, Pritz, Matter of vs. Baumont, Award set aside, 154 N. Y. Supp. 1140. (Without opinion.) A person who signed a false statement in writing to obtain employment (in violation of the Penal Law), is an employee entitled to compensation. Kenny, Matter of vs. Union Railway Company, 166 App. Div. 497; 152 N. Y. Supp. 117. A painter having a written contract to paint a sign guaranteeing the work which was performed entirely by himself is not an independent contractor, but is an em- ployee, within the meaning of the compensation law. Rheinwald, Matter of vs. Builders Brick ^ Supply Co., 168 App. Div. 425; 153 N. Y. Supp. 598; reversing 1 N. Y. St. Dep. Rep. 417. The owner of a dredge leasing same to a third party but having control over its operation is an independent contractor. Powley, Matter of vs. Vivian ^ Co., 169 App. Div. 170 ; 154 N. Y. Supp. 426. Such independent contractor is an employee of the lessee while transporting supplies to the dredge for the lessee. Powley, Matter of vs. Vivian <§• Company (above). An employee of a person who is not engaged in a hazardous employment is not within the compensation 96 workmen's compensation act unless performing work, at the time of the accident, which is expressly defined as hazardous. Gleisner, Matter of vs. Gross 4" Herbener, 170 App. Div. 37; 155 N. Y. Supp. 946. Newman, Matter of vs. Newman, 169 App. Div. 745; 155 N. Y. Supp. 665. A person employed casually to repair the building where a hazardous employment is carried on is not an employee engaged in such hazardous emplojj^ment. Bargey, Matter of vs. Massaro Macaroni Co., 170 App. Div. 103; 155 N. Y. Supp. 1076. A police officer employed jointly by a town and by a company engaged in mining is an employee of the com- pany while performing work as an officer in connection with the business of the company. James, Matter of vs. Witherbee Sherman Co., 2 N. Y. St. Dep. Rep. 483. An officer of a corporation is an employee entitled to compensation while working as a foreman or mechanic. Cantor, Matter of vs. Rubin Musicant Company, 3 N. Y. St. Dep. Rep. 392. The captain of a lighter which had been leased to and was transporting goods for another was held to be an employee of the owner of the vessel. Claim No. 23863, Norman, Matter of vs. Empire Light- erage Co., 2 N'. Y. St. Dep. Rep. 480. A person employed as a mechanic who also owned a motor boat which he at times leased to and operated for his employer was held to be an employee and not an in- dependent contractor while engaged in the operation of the boat. Claim No. 54026, Julius Olsen, deceased. Matter of vs. State Insurance Fund, Workmen's Comp. Com., April 27, 1915. A person repairing farm buildings is not an employee under the Compensation Act. Claim No. 14407, Fred McComsy, Matter of vs. George E. Simmons, The Bulletin, Vol. 1, No. 6, p. 13. DEFINITIONS ANNOTATED 97 A person employed casually by a truckman to assist in unloading a vehicle was held to be an employee of the firm by which the truckman was regularly employed. Claim No. 38318, Thos. Williams, Matter of vs. Mes- serau Metal Bed Co., Workmen's Comp. Com., May 12, 1915. In a case where an employee was injured while oper- ating a traction engine for a firm engaged in the thresh- ing business, it was held that the claimant was not em- ployed as a farm laborer and was entitled to compensa- tion under Group 41. File No. 17810, Fred H. Green, Matter of vs. Miller Sf Miller, State Industrial Commission, Jan. 31, 1916. Where a company has work performed at its plant by the piece under an oral contract and furnishes the material, machinery, etc., persons hired by the contractor to assist in the work are employees of the company. File No. 21001, Ferdinando Carita, Matter of vs. Star Box 4' Lumber Co., State Industrial Commission, Dec. 20, 1915. A resident of New Jersey employed by a company in Pennsylvania to perform work in the State of New York is entitled to compensation under the New York act for an injury received in this state. Joseph Griffiths, Matter, of vs. American Bitumastic Enamel Co., State Industrial Commission, April 4, 1916. (See also Part I, Sections 6, 7, 8, 10, 11, 12, 15, 16, and 19.) 5. "Employment" includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain, except where the employer and his em- ployees have by their joint election elected to become sub- ject to the provisions of this chapter as provided in sec- tion two. (Subd. 5, am'd by L. 1916, Ch. 622, effective June 1, 1916.) An employer keeping a store house in connection with the sale of merchandise by wholesale is not engaged in the storage business for pecuniary gain. Mihn, Matter of vs. Hiissey, 169 App. Div. 742; 155 N. Y. Supp. 860. 98 wokkmen's compensation A hospital which distributes no profits although a fee is charged for the care and treatment of patients is not carried on for pecuniary gain. Gamba, Matter of vs. N. Y. Post-Graduate School ^ Hospital Workmen's Comp. Com., Mq,rch 29, 1915. The industrial department of the Salvation Army, the profits of which are used for charitable and religious purposes, is not carried on for pecuniary gain and an employee of the Salvation Army is not entitled to com- pensation. Scott, Matter oi'vs. Salvation Army, Workmen's Comp. Com., April 30, 1915. A municipal corporation is not engaged in a trade, business or occupation for profit, although a revenue may be obtained from the operation of one of its depart- ments. Claim No. 33531, Miallo, Matter of vs. City of Water- town, Board of Waterworks, Workmen's Compensation Com., March 29, 1915. Claim No. 25985, Daniel J. Wigmore, deceased, vs. City of New York, Dept. of Docks S; Ferries, Workmen's Com- pensation Com., Feb. 8, 1915. An employee injured while working for the State of New York engaged in the repair of a lock on the Erie Canal is not entitled to compensation. Jennings, Matter of vs. State of New York, State In- dustrial Commission, Sept. 20, 1915. (In connection with employees of the State and muni- cipal corporations see Group 43, added by L. 1916, Ch. 622, effective June 1, 1916.) A painter injured while painting the roof of a farm building is not employed in an occupation carried on by the employer for pecuniary gain. Claim No. 14407, Fred McComsy, Matter of vs. George E. Simmons, The Bulletin, Vol. 1, No. 6, page 13. A claim of an employee of a boat club injured while operating a motor boat was denied upon the ground that the business was not conducted for pecuniary gain. Claim No. 11325, Percy R. Downe, Matter of vs. Motor ACCIDENTAL INJURIES 99 Boat Club of Buffalo, State Industrial Commission, Dec. 29, 1915. 6. "Compensation" means the money allowance paya- ble to an employee or to his dependents as provided for in this chapter, and includes funeral benefits provided there- in. 7. "Injury" and "personal injury" mean only acci- dental injuries arising out of and in the course of em- ployment and such disease or infection as may naturally and unavoidably result therefrom. ACCIDENTAL INJURIES. The following injuries were held to be accidental in- juries: Where a railroad employee was poisoned with poison ivy. Plass, Matter of vs. New England Railway Co., 169 App. Div. 826 ; 155 N. Y. Supp. 854.. Where the employee became insane as a result of the mental shock of an accident. McMahon, Matter of vs. Interborough Rapid Transit Co., 5 N. Y. St. Dep. Rep. 109. Hernia caused by a strain from lifting a piano. Mooney, Matter of vs. Weber Piano Company, AfF. 156 N. Y. Supp. 1135. (Without opinion.) Hernia caused by fall from a wagon. Ulrich, Matter of vs. Lenox Coat, Apron gg Carpenters, employed casually 22, 88 Casual employees 22, 88,' 96 Casual employments 22 Catching ride 106 Charitable institutions, exempted I9 Chauffeurs .'. .. . 19 Chauffeurs, private, exempted , _ ' 19 Child, defined '..' 110 Children, under 18 .11 126 Children, illegitimate _ ..... ' 110 Churches 19 Claim for compensation, when made .'.181 141 Claims for compensation, how settled .' 132 Claims, determination of ^'^ jgj See "Determination of Claims" GENERAL INDEX 241 [eeferences are to pages] Claimant may be cross-examined 183 Classifications of industries 73-90, 195-201 Classifications of risks of State Fund 161 Cleaning glasses, confectionery store 81 Clerical help 29 Clerk unloading vehicle 86 Clerk working in interstate commerce il Clothing, mfg. of 84 model employed in 84 salesman employed in 84, 85 piece workers at home 85 Clothing, boys and girls 85 Clubs 19 Colleges 19 Collection of premiums in State Fund 165 Commission (see "Industrial Commission") Commissioner, Deputy, power of 154 Committee of Arbitration 182 Common law defenses, abolished 118 Common law remedies, superseded .' 113 Common law wife 127 Comparison of State Fund with stock and mutual companies 67 (See Part II, Sec. 27-80) 64, 62 Compensatable injuries, defined 12 "Compensation" defined 99 Compensation, how payable ; 189 Compensation to aliens, amount of 136 Compensation for death, amount of 11, 125 Compensation for death, to whom paid 125 Compensation for death 125-131 See "Death Benefits" Compensation for deficiency 141 Compensation for disability, amount of 11, 118 Compensation for disfigurement 123 Compensation, who entitled to 11, 125 Compensation, basis of 116 Compensation claims, how settled 132 Compensation insurance 51 under subdivision 3 64 compulsory Ill method optional 62 Compensation, agreement to pay 182 Compensation legislation, history of 4 Compensation schedules 118 See "Schedules of Compensation" Compensation liability Ill Compensation liability exclusive 6, 118 Compensation, liability for Ill, 112 Compensation lien, priority of 145 Compensation, limitation of amount of 124 Compensation security for 61 Compensation may be reduced or suspended when 186 Compensation Law: application of 7 plan and purpose 5 employments sub ject to the act 7 injuries subject to the act 8 must provide a remedy to be exclusive 26, 28, 29, 82 242 GENERAL INDEX [references are to pages] Compensation Law (continued). constitutionality 4, 73, 170 does not impose a burcjen on interstate commerce 168 history of legislation 4 elective provisions 4, 89 foUows employees of vessels 37 application to railroad employees 89 application to vessels 37 annotated 73 liberally construed 137 Compensation Law, annotated 73 Compensation Law, application of 7, 73 Compensation Law declared constitutional 4, 73, 170 Compensation Law, plan and purpose 6 Compensation Law not exclusive unless remedy provided 27, 28, 29, 82 Compromise of action to recover penalty and award 140 Compromise of action against third party 142 Compulsory, act is 4 Compulsory provision (Sec. 10) Ill, 112 Concurrent awards 122 Confectionery, mfg. of 81 Conflicting evidence 183 Consecutive awards 122 Constitutional amendment authorizing comp. legislation 218 Constitutional questions 4 partial invalidity 170 Constitutionality of Compensation Law 4, 73, 170 Construction, questions of: accident, defined 8, 9 "arising out of," construed 8 "in the course of" 8 diseases, when accidental 107 rules for interpreting the act 176 Contractor independent 48 Contractor employee of 207 Contributory Negligence: abolished as defense, when 113 defense to be pleaded when 209, 210 in action for death 219 Conveyances, riding in employer's 10 Co-partner, employer, when not 93 Costs and fees 188 Court of Appeals, appeals to 186 Court, Supreme, Appellate Div. Third Dept., appeals to ! 186 Coverage—State Insurance Fund 57 Creation of State Fund I59 Cross-examination of claimant I33 Crossing track, subway construction 79 Custody of State Fund " ' 159 Cutting glass .'..'.".'.".'!.." 80 D Damages against third parties 45 141 Damages by next of kin 28, il4^ 128 Damages for loss of services 82 Damages for occupational diseases 88 84 GENERAL INDEX 243 [befeeences ake to pages] Death, action for 28 Death, constitutional provisions 218 Death, action for under code 219 Death Benefits -. 125-131 funeral expenses 126 wife married subsequent to accident 126 for children, how paid 126 common law wife 127 Death, compensation for 11, 125 Death when compensatable 107 Death, resulting from accident 107, 108 Death, not resulting from accident 108 Decision of Commission final on question of fact 132, 133 Decision of Commission, when final 5, 132 appeal from 6, 186 Decision by majority of Industrial Board sufficient 153 Defense, insurance fund 210 Defenses, common law abolished 118 Definitions 91-111 Degree of dependency.,. 128 Delirium tremens _ 107 Delivery on foot 83 Demolition 110 Dependency : of sister and parents 128 on minor 128 of mother and grandmother 128 question of fact 11, 128 degree of 128 what constitutes 129 "during dependency" 129 purchase of house, contribution for 129 hearsay evidence does not establish 129 where deceased is a minor 129 Dependents receiving no compensation may sue 28, 114, 128 Dependents of unmarried employee 128 Dependents, who are 11, 125 Depositing future payments 140 present value 141 trust fund created 141 with State Fund 141 Depositions 157 Deputy commissioners, powers of 154 Determination of claims 131-134 Commission final on question of fact 133 conflicting evidence 133 evidence examined on appeal 6, 133 whether any evidence, a question of law 1 33 cross-examination of claimant 138 reversal for refusal to reopen case 133 award by consent affirmed 134 unfair decision reversed 134 arbitrary decision reversed 134 findings without evidence 134 Disability, compensation for i 118 Disability, must exceed two weeks 114 Disability, previous 124, 125 244 GENEEAI, INDEX [bEFEHENCES ABE TO PAOES] Discharge from work, injury after T9 Disease causing injury 105 Diseases resulting from accidental injuries: anthrax 88, 99 delirium tremens 107 insanity , 88, 99 heart disease ' 107 pneumonia 107, 108 gangrene 104 tetanus 107 pulmonary tuberculosis 107 peritonitis 107 pleurisy 108 typhoid fever 108 cancer 108 septicaemia 108 poison from ivy 88, 99 Diseases when not accidental: blood poisoning 108 pneumonia following accident to arm 108 apoplexy 109 Diseases, occupational 82 See "Occupational Diseases" Disfigurement 26, 114 Disfigurement, compensation for 128 Disinfecting stables ; 86 Distinction between hazardous and non-hassardous employments 20 Distinction between interstate and intrastate commerce 42 Doctor: See "Medical Treatment" Domestic servants 18, 94 Doubtful employments 16 Driver of automobile 92 Driver in non-hazardous employments 91 Drowning 102 Drowning, unexplained 76 Drugs, mfg. of 82 Druggists 18, 82 Dual employments 18 Dual lialDility — truck drivers 14 "During dependency" 129 £ Ear, amputation of 26 Ear, loss of, damages for 121, 122 Earnings, basis of compensation 116 Earnings, when tips are 109 Election of remedies: for failure to insure 118 injury on navigable waters of U. S 87, .77 negligence of third parties 4,5, 141 Election to come within act, how made 89 Elective act 4, 89, 210 Elective provision of compulsory act 4, 89, 90 Electric meat chopper 83 GENERAL INDEX 245 [referen^ces are to pages] Elevators 18, 86, 87 Elevators, operation of 87 See "Operation of Elevators" Emergencies, acts during 108 Employee: defined 94 injured outside the state when entitled to compensation 34, 94 when not entitled to compensation 34, 94 signing false statement to obtain employment. 95 may release employer, when 210 when not a co-partner 93 of contractor 207 when not an independent contractor 95 operating a dredge under lease 95 independent contractor, when entitled to compensation 95 engaged in non-hazardous employment 20, 95, 96 casual 23, 88, 96 police officer 96 officer of corporation, when an employee 80, 96 captain of vessel leased to another 96 operating own motor boat : 96 repairing farm buildings 96 employed and paid by another employee 96 operating threshing machine 97 piece workers 97 of foreign states 85, 95, 97 engaged in interstate commerce 39, 168 injured, examination of 181 not within the act 12 recourse to insurance contract 147 refusal to submit to medical examination 131 all in affected industry not covered 20, 25 state 88, 89 municipal 88, 89 extra 117 seven-day 116 Employers : defined 92 conducting non-hazardous employment 20, 92, 98 general and special, both liable 15, 93 liability for compensation discharged, how 147 report of accident by 167 repairing building, not liable for compensation 98 of truck drivers 98, 94 who is, a question of fact , 95 furnishing employees to another 94 two classes subject to act 8 conducting both hazardous and non-hazardous employments 93 hiring truck, liability of 98 when not a co-partner 98 municipal corporations 88, 92 state 88, 92 information to be furnished by 167 inspection of records 167 may be sued as third party causing injury 148 Employers' liability for Injuries 206 Employers' Liability Act 206 246 GENERAL INDEX [reit;ivences ake to pages] Employment : defined ^"^ casual 22 doubtful 16 dual 13 exempted 18 non-hazardous '. 20 distinction between hazardous and non-hazardous 20 seasonable HI", 124 Employments subject to the Act 7 Employments exempted by the act 18 domestic servants 18, 94i farm laborers 18, 19, 94, 98 private chauffeurs 19 private estates 19 charitable institutions 19 hospitals 19, 98 churches 19, 98 clubs 19, 98 schools 19 colleges 19 universities 19 any employment not conducted for pecuniary gain 19, 97 Embalming 91 Enforcement of payment of compensation 139 English decisions, consideration given 137 Evidence, rules of 165 Examination of injured employee 181 Examination of State Fund by Insurance Department 166 Exceptions unnecessary on appeals 138 Exclusive liability 118 Exclusive remedy 118 Expenses of burial ; 125 Expenses of administering Compensation Law 158 Expenses of administering State Fund 160 Extra employees 117 Extra-territorial effect of compensation law 34, 74 Eye, injury to, when not accidental 100 P Facts, decision contrary to reversed 184 Fact, question of See "Question of Fact" Facts, failure to report, effect of 185 Failure to insure, effect of 113, 146 Failure to give security for compensation 113, 146 Failure to report facts 135 Falling from building 108 Falling caused by disease 105 Falling on floor 108 Falling from landing 78 Falling from ship 76 Falsification of payrolls 165 Farm accidents 19, 94 Farm building, repair of 96, 98 Farm laborers 19, 94 GENEKAL INDEX 247 [keFEREITCES ABE TO PAGEs] Fault, disregarded in compensation legislation Ill Federal Employers' Liability Act 220 application of 89 See "Interstate Commerce" Fees of lawyers and doctors, subject to approval 138 Fees and mileage of witnesses 156 Fellow servants, negligence of 113 Fellow employees, assaults by 101, 106 Findings without evidence 184 Fingers, loss of use 120 Fireman working in interstate commerce 41 Foodstuffs, preparation of 18, 16, 83 See "Preparation of Meat and Foodstuffs" Foreign employees 35, 95, 97 Foreign law recognized in New York 86 Foreign states, employees of 34, 95, 97 Foreign vessels excluded 86 See "Operation of Vessels" See "Longshoremen" Foreman assaulted by employees 101 Forms: See "Rules" Forms, Conunission to furnish 157 Freezing 33, 99 Freight, elevators 87 Frolicking, injuries from 105, 107 Frost bite, accidental 33, 99 Fumes, inhaling, accidental when 100 Future payments, deposit of 140 G Gang plank, longshoreman injured on 77 Gangrene resulting from accident 104 Garage 92 Gases, inhaling poisonous, accidental 100 General employer IS, 93 Going to and from work 10, 79 Glass and glass products 80 Grandmother and mother as dependents 128 Grandparent and parent both dependent 11, 128 Grounds for review of award or agreement 131, 136, 157 Groups of hazardous employments 74-89 Rule for construction of 73 H Hand, loss of use, what constitutes 121 Handtruck, operation of ., 86 Handy man employed by druggist 82 Hazard, basis of compensation (Part I, Sec. 2) 6 See "Arising out of," etc. Hazardous employments: groups 74-89 alphabetical list of 195 defined 91 248 GENEEAL INDEX [keferences ahe to paoes] Hazardous employments (continued). employments added in 1916 200 operation of garage ^2 application of law to groups of "^^ ice harvesting ^2 lumber yards ^2 what is not: embalming ^1 wholesale dealer 91 operation of theatres ^1 hotel 91 undertaking 91 repair of building, casual 23 Hazardous employments determined by Legislature 58, 68 Hearsay evidence does not establish dependency 129 Hearsay evidence, award based on 156 Heart disease from overwork 107 Heat prostration from boiler 100 Helper on vehicle 86 Hernia .• 99 Hiring truck, liability of employer 98 History of compensation legislation 4 Horses, care of i 86 Horses, dispute concerning 101 Horse play, accidents caused by: See "Frolicking" Horse shoeing 81 Horse shoers 17 Hospital: See "Medical Treatment" not conducted for pecuniary gain 98 Hotels and restaurants 91 employees preparing food 88 House, purchase of, contribution for 129 Humanity, risk in line of 108 I Ice harvesting 14, 77, 92 Illegitimate child 110 Incidental to the employment, risk must be 6 exposure must be peculiar to the work (Part I, Sec. 4) 8 unusual exposure to natural hazards (Part I, Sec. 4) 8 See "Arising out of, etc." Incomplete protection of State Fund 67, 68 Increase of wages of minor 118, 129 Indemnity agreement must cover compensation 14.8 Independent contractors, defined 48 Independent contractor, when an employee 46 Independent contractor may sue for negligence 45 Independent contractor, when entitled to compensation 95 Individual grouping. State Fund 161 Industrial diseases 82 See "Occupational Diseases" Industrial Commission: award by 182 creation and organization of 161 GENEEAI. INDEX 249 [befesexces are to fades] Industrial Commission (continued). decision of quorum sufficient 163 individual commissioners, powers of 164 jurisdiction of 161 may determine whether insurance policy is in force 149 may malse rules 164 may examine injured workmen 131 office of 163 powers and duties of 161, 163, 164 reports 167 review of agreements and awards 132 sessions of '. 163 Industries, classification of 74-89 List of hazardous employments 96 See "Hazardous Employments" Infection, accidental 33, 99, 108 Injuries. See "Arising out of, etc." See "Accidental Injuries" defined 8, 99 schedule of 118-125 previous, effect of 124, 126 caused by negligence of third persons 141 See "Negligence of third persons" death, must result from 107 resulting in disfigiirement 26, 123 resulting in death 107 constitutional provision 218 code provision 219 subject to the act 8 three requisites must exist 8 accidental, defined 8, 9 for which no compensation is provided 26 received outside the state 34, 94 after discharge from work 79 Injury to the eye from light 33, 100 Injury from dust 33, 100 Injury to traveling salesman 24, 25 Injuries resulting in death 28, 107 constitutional provision 218 code provision 219 distribution of damages 219 contributory negligence, a defense 219 Injury on dock 77 Injury on land 38, 77 Injury on navigable waters 38, 77 Injury on shore 38 Insanity, when accidental 83, 99 Insolvency of employer does not release carrier 148 Inspection of plants of employers in State Fund 166 Inspectors 18 Installing machinery, salesman 80 Insurance Carrier 61 Insurance carrier, defined 110 Insurance carrier to reimburse State for expenses of Commission 158 Insurance by mutual companies 64 Insurance by stock companies 64 Insurance companies liable to workmen, when 147 Insurance of medical treatment 67 250 GENEEAL INDEX [RErERENCES ARE TO PAGEs] Insurance contract SI, 147 recourse of Commission HI knowledge of employer binds carrier 148 insolvency of employer does not release carrier 148 indemnity agreement must cover compensation 148 cancellation 148, 149 Industrial Commission may determine whether policy is in force.. 149 Intentional injury Ill, 112 Intoxication 112 In the course of the employment: See "Arising out of, etc." "In the course of" defined 10 Interpretation of the act, rule for 68, 73 Interruptions in work 10 Interstate Commerce 39, 76, 168 what constitutes 41, 42, 43 leading cases 41 street surface railroads 43 remedy of railroad employees 39 repair shops 7S employees in, are subject to act 40, 168 rule for determining what is 42 burden upon, does not render law unconstitutional 168 vessels engaged in » 37, 168 railroad employees engaged in 40, 168 street railroads may be engaged in 43 Interstate Commerce, what is: repairing loaded car 41 fireman piloting locomotive 41 repairing bridge 41 clerk checking interstate cars . .• 41 fireman preparing engine 41 brakeman shifting cars 42 Interstate Commerce, what is not: working on repair shop 41 switching intrastate freight 42 working in coal mine 42 new construction work 42 abandoned instrumentalities 42 repairing cars 169 switching empty cars 169 working on new telegraph line 169 watchman on new construction work 169 taking inventory 169 Intrastate Commerce See "Interstate Commerce" Invalidity of portion, not to a£Fect whole act 170 Investment of surplus of State Fund 160 Janitors 80 operating boiler 80 chopping wood 81 Janitor engaged in mechanical work gg Judgment, award may be docketed as X40 GENERAL INDEX 251 [hePERENCES ABE TO PAGEs] Jurisdiction of Commission: modification of award 136 upon medical services 115 continuing 167 see "Appeals," "Questions of Fact" K Knowledge of employer binds carrier 148 L Labor law article. Article 14 205 Elective compensation provisions 210-215 Labor Law violations 54f Land, injury on 38, 77 Land, longshoreman injured on 77 Law, question of 133 may be certified to Appellate Division 136 appeal may be taken on 136 Lead poisoning, not accidental 33, 101 Leaving premises 10, 79, 103, 104 Legal representative 114 Legal services 138 Liability for compensation Ill, 112 Liability, dual — truck drivers 14 Liability, exclusive 113 Liability of employer, discharged how 147 Liberal construction of statute 137 Lien, compensation prior 145 Lien for legal services 188 Lien for medical services 138 Lightning, accidental 100 Limitation of amount of compensation 124 Limitation of right to compensation 141 List of hazardous employments 195 Lodging and board included in wages 110 Loss of arms, hands, legs, etc 119 Loss of ear, damages for 121, 122 Loss of services 82 Loss of use of finger, compensation for 120, 121 Loss of use of hand, what constitutes 121 Longshoremen 77 optional remedies 87 sorting refuse , 77 injured on vessel 77 injured on land 77 injured on gang plank 77 ice harvesting, not longshore work 77 loaned to another firm 78 watching cargo 78 watching boats 78 Longshore work 75 See "Operation of vessels" Lumber yards 92 Lunch, injury while taking 104, 106 252 GENEEAL INDEX [eeFEHEXCES ABE TO PAGEs] Lump sum settlements 1*^ for aliens ^29 M Machinery, salesman installing 80 Mailing letter after work 105 Manager of hotel ^1 Marriage after accident 126 Master and servant, liability between 205 Maximum compensation 124 Meals, leaving work to eat 103 Meals on premises 104, 106 Meat, preparation of 17, 83 See "Preparation of Meat and Foodstuffs" Mechanics employed casually 23 Medical examination 181 rule for 1'8 Medical services, lien for 138 Medical treatment 115 juflsdiction of Commission 115 physician, designation of US physician cannot sue employer 115 suit by hospital 116 Medical treatment, insurance of 67 Method of computing compensation 11'6 Mining 96 Minimum compensation 124 Minors 64 Minor, increase of wages considered 118, 129 Minor, limitation does not run against 170 Minor may make election to come within act 90 Minor may elect to sue third party 47 Minor, parents dependent upon 128 Minor children, compensation, how payable 126 Misdemeanor ; failure to give security for compensation 146 misrepresentation to obtain State insurance 165 disclosing information 166 Misrepresentation to obtain insurance in State Fund 165 Model employed in manufacture of clothing 84 Modification of award 186 Mother and grandmother, both as dependents 128 Motorcycle, injury while cleaning 102 used in work 102 Municipal corporations 88, 89, 98 Municipal employees 88, 89 Mutual insurance 54 N Navigable waters,' injury on 88, 77 Negligence of third persons 45, 141 rule for election of remedies 189 employee may elect to sue or take compensation 141 release of third party does not bar compensation 142 6ENEEAL INDEX 253 [beferexces ade to pages] Negligence of third persons (continued). employee may sue third party without complying with compensation law 142 minor workman may make election 143 opposite elections by different dependents 143 when employer may be sued as third party 143 award of compensation bars suit against third party 144 compensation for deficiency 141 compromise of suit 142 (See Part I, Section 24, p. 45) Negligence, contributory 208, 210 See "contributory negligence" Negligence, disregarded in compensation legislation Ill Negligence of fellow servants .• 113 Negligence, not controlling 113 Nervous shock, when accidental i 33, 99 New construction work 42 New York amendment to constitution 218 Non-hazardous employments 20 See "Hazardous employments" Notice of accident to Commission 130 Notice of accident, failure to give may be excused 130 Notice of decision of Industrial Commission 132 Notice of claim for compensation 131 Notice regarding compensation, posting 146 Notice to employer of accident 130 Notice of hearing, rule for 177 Notice of injury, when waived 130, 131 Notice under Employers' Liability Act 207 identification of accident 208 defective, effect of 208 sufSciency of 208 waiver of 208 O Occupations, law applies only to hazardous 8, 73 Occupational diseases 82 what are; cramped hand 101 lead poisoning 32, 33, 101 joint stiffened 101 injury to eye from light.- 33, 100 injury from dust 33, 100 what are not: freezing 33 poison ivy 33 anthrax 33 exhaustion from overwork 33 damages may be recovered for 33, 34 Office of Industrial Commission 153 Office buildings, see "Office Employees" Office employees 29 are not engaged in manufacturing work 30 Officers of corporations 30, 96 driving automobile 92 when entitled to compensation 31 when an employee 96 254 GENERAL INDEX [refebences are to pages] Operation, death following 107 Operation of elevators 80, 87 superintendent of building ^ 87 watchman 87 using freight elevator 87 operator falling on stairs 87 Operation of vehicles '. 19, 85 stableman 85 caring for horse 86 disinfecting stables 86 loading and unloading wagon 86 helper S6 porter operating hand truck 86 delivery on foot 86 clerk unloading 86 elevators are not included within 86 traction engine 97 Operation of vessels 86, 37, 76, 76 optional remedy of employees 37 dual liability of employers 88 longshore work is not 75 captain assisting in unloading 76 of foreign state 76 oiler on foreign vessel 76 sharing profits 76 unexplained drowning 76 wife of captain, services of 76 falling from landing 78 Optional remedy of longshoremen 87 Optional remedy of employees of vessels 37 Optional remedy where employer is not insured 118 Optional remedy, injury caused by third party 45, 141 Optional method of insuring 145 Painter 95, gg Pain and suffering, action for 27 Parent dependent upon minor H^ 128 Parents and grandparents, both dependent 11 Parents and a sister as dependents 11, 128 Partial permanent disability 119 Partners .Ve, 98 Payments, advance I34 Payments of compensation, how made 189 Payment of expenses of State Fund I60 Payment of premiums in State Fund ."!!!!!! 164 Pecuniary gain: casual repairs not conducted for 22 24 employments not carried on for, excluded '. .iV," 19* 97 wholesaler is not conducting storehouse for '.'...'...' 97 hospital not conducted for. . ; !.'!!!!! 98 Salvation Army not conducted for !!!!!! 98 municipal corporations not engaged in business for !.'.'.'.'.'! 98 repair of farm buildings not conducted for " ' | 98 boat club not operated for .'..!'.!'. 98 how determined !.!!!!!!!! 19 GENERAL INDEX 255 [llErEBEITCES ABE TO PAGES] Penal Law, violation of to obtain employment 95 Penalties for failure to pay compensation 139 Penalties for false representation 170 Penalties for falsifying payroU 165 Penalties for misrepresentation to obtain State insurance 165 Penalties for violation of the act 5, 146 Penalties, waived when 146 Penalties to apply on expenses of Commission 166 Penalties for disclosing information 166 Peritonitis, following accident 107 Permanent total disability 125 Personal Assaults; See "Assaults" Personal injury defined 99 Phalange, loss of part 120 Physical examination of injured employee 131 Physician : See "Medical Treatment" Physician, designation of 115 Physician cannot sue employer 115 Physicians' fees subject to approval 115, 138 Physicians' services for injured workmen 115, 188 Piece workers 97 Piece workers at home 85 Pile driving 78 Plan and purpose of Compensation Law 5 Plant defined 207 Pleurisy 108 Pneumonia resulting from accident 107, 108 Poison ivy 33, 99 Poison taken by mistake 102 Poisonous gases 100 Police ofBcer 96 Police power 118 Porter operating hand truck - 86 Posthumous child 110 Powers of individual commissioners 154 Powers of secretary 154 Preferences 145 Premises, employee residing on 104 Presumptions 135 failure to report facts 135 evidence of accident to create 185 effect of 135, 136 Previous disability 124, 125 Previous disease, aggravation of 108 Preparation of meat 17 Preparation of foodstuffs 13, 16 Preparation of meat and foodstuffs 16, 83 does not include hotels, restaurants and domestic servants 83 electric meat chopper 83 retail meat markets 88 delivery on foot 88 ice harvesting for 84 Present value of award 141 Private chauffeur 19 Private estates 19 Procedure under the act 131, 153 256 GENERAL INDEX [refeiiexces are to pages] Procedure, rules for !-J^ Procedure before arbitration committee ^"^ Procedure of Commission, manner of ■'^^ Property man in theatre ~\ Protecting wagon Public liability 55 Pulmonary tuberculosis , ■^"^ Punishment of witnesses ^^^ Purchase of house, contribution for 129 Purchasing and sales agent, not covered 25 Questions of fact: determination of loss of use 121 determination of employer 9* decision of commission final 5, 132, 133 dependency is 11> 128 determination of wages 118 assumption of risk 208, 209 Questions of law: appeals limited to 132, 133 may be certified to Appellate Division 136 arbitrary decision, reversed as 134 where no evidence to support findings 133, 134 R Railroad employees 39, 74, 168, 169 when entitled to compensation 39, 40, 43 testing watch 74 watchman struck by train 74 See "Interstate Commerce" Railroad employees engaged in interstate commerce 40, 168 Railroad Law, Section 64 216 Railroad Law, action under 216 Railroad Law, application of *. 217 Railroad Law, superseded when 217 Rain, injury while seeking shelter from 102 Reaching street from subway 79 Readjustment of rates in State Fund 60 Recourse of Commission to insurance contract. 147 Release from payment of compensation , 59 Release of compensation prohibited 144 Release of employer in State Fund 69 Release from liability 147 Release of third party does not bar compensation 142 Release of third party by employee, effect of 142 Relief associations 144 Relieving nature 79 Religious corporations, as employers 19 Remedies, common law and statutory superseded 113,^ 114 Remedies, election of for failure to insure 113 injury on navigable water of U. S 88, 77 negligence of third parties 45 '141 Rent, included in "earnings" Uq Re-open case, reversal where Commission refuses I33 Repair, included with manufacture, construction, operation and instal- lation JJQ GENERAL INDEX 257 [refereitces are to pages] Repairs, casual 23 Repair of buildings 93 Repair shops 75 Repairing bridge 41 Repairing loaded car 41 Repeal of acts 170 Report of accidents by employers 167 Report of State Insurance Fund 166 Requirements in classifying employments in State Fund 162 Requirements for adjusting rates in State Fund 162 Respondeat superior 113 Review of agreements 132 See "Appeals" Review of decision of Industrial Commission 136 See "Appeals" Risk, must be Incident to employment (Part I, Sec. 4) 8 Risks of the street 106 Risks during work intervals 10 Risks of personal assault 101, 106 Risks incidental to the employment (Part I, Sec. 4) 8 Rule for application of statute 68, 73 Rules adopted by Commission: Form of notices 176 To what oflSces notices shall be sent 176 Which statements under oath 176 Proof of average daily wages 176 Notice of presentation of claim 177 Witness put under oath 177 Claim for compensation 177 Who may examine , 177 Who may inspect 178 Secretary shall digest the evidence 178 Medical examination of claimants 178 Order in dealing with claim , 178 Reference of claim to medical director 178 Special investigation through deputies 179 Reference of all communications to the actuary 179 Passing upon claim 179 Action upon award by commissioner or deputy commissioner 179 Action upon report of arbitrators 180 Hearing judicial but not formal. . . , 180 Stenographer's report of hearings 180 Requisites to application for review 180 Docketing of papers 181 Employees receiving or disbursing money to give bond 181 What employers and what employees subject 181 Rules for computing weekly wages 182 Revision of award for reduction of earning capacity 183 Ruling as to lien for physician's services, etc 188 Time for making periodical pajrments 188 Method of paying compensation 188 When commuted and sued for 188 Paying present value into state fund 184 Methods of paying compensation 186 Commuted value demanded of Insolvents 185 Physician's fees, etc., need not be insured 185 Policies of companies must insure all entitled 186 Condition of remitting penalty for non-compliance 186 258 GENERAL INDEX [HEFEKEIfCr.3 ARE TO PAGEs] Rules adopted by Commission (continued). Commission to supply blanks 186 Expense accounts of commission 186 Classifying employments of a single employer 187 How interstate and foreign commerce employers may comply 187 Hours of sessions 187 When physician's bill not to be considered 187 Employees insured in state fund 187 Premiums payable to state fund 188 How disbursements from state fund made 188 Monthly session to consider report of state fund 188 Form of state fund accounts 188 Readjustment of premium payroU to state fund 189 Time for paying premiums to state fund 189 Repeal, amendment of adoption of rules 189 Subrogation to remedy of employees 189 Rule for determining what is Interstate Commerce 42 Rule for suit against third party 189 Rules, power to make 154 Rupture, an accident 99 Sailors, accidents to See "Longshoremen" See "Operation of vessels" Salesmen 24, 25 Salesman, falling on stairs 82 Salesman, employed in manufacture of clothing 84, 85 Salesman, traveling 24 Salesman installing machinery 24, 80 Salesman and buyer for wholesaler 91 Salvation Army 98 Schedule of Compensation 118-125 loss of remaining member 119 temporary total disability 119 temporary partial disability 119 phalange, loss of part 120 tip of finger 120 loss of finger 120 loss of use of finger, compensation for 120, 121 Schedule of specific injuries 118 Schools [ 19 Scope of employment: See "Arising out of, etc." Scuffle over horses 101 Seasonable employments 117 124 Secretary, powers and duties of .' 154 Self-insurance [ 54, Septicaemia !."!.! ] 08 Servants, domestic ,18 94 Sessions of Industrial Commission _ I53 Settlement of suit against third party 47 Sharing profits, operation of vessels !.!.!!!!!..].!. 76 Sheeting work .'. 78 Shelter from rain '"'[ IO2 GENERAL INDEX 259 [eeferences are to pages] Ships, accidents to sailors: See "Longshoremen" See "Operation of vessels" Shore, injury on 88 Short cut to place of work 104 Sister and parents as dependents 128 Slippery floor causing injury 103 Sorting refuse 77, 82 Special employer 15, 93 Specific compensation shall be in lieu of all other 122, 123 Stableman 85 State, as an employer 88, 92 State not liable beyond premiums 61, 159 State employees < 88, 89 State Insurance Fund: appeals by employers 66 administration of 65 compared with stock and mutual companies 54 coverage 57 incomplete protection 58 violations of Labor Law covered 69 release from payment of compensation 69 release of employer 59 readjustment of rates 60 State not liable beyond premiums 61, 169 assessments -. 61 Immunity 62 creation of State Fund. 159 custody of funds 169 payments of expenses of 160 surplus and reserve 159 investment of 160 classification of risks 161 adjustment of premiums 161 individual grouping 161 associations for accident prevention 162 inspection of plants of employers 166 examination by Insurance Department 166 requirements in classifying employments 162 requirements for adjusting rates 162 payment of premiums 164 collection of premiums 164 withdrawal of employers 164 assessments after withdrawal 166 audit of payrolls 165 falsification of payroll 165 misrepresentation to obtain insurance ^ 165 report of State Insurance Fund 166 employer cannot appeal 187 State legislation on workmen's compensation, history of 4 Statutory remedies superseded 113 Stenographic report of proceedings 157 Step child 110 Stock company insurance 54 Stockholder in corporation as employee 31 Storage 13, 14, 82, 83 Storehouse 97 Storeroom, injury in 83 260 GENEEAL INDEX [refekences are to pages] stone crusher 88 Strain, injury from 99 Street raijfroads may be engaged in interstate commerce 43 Street risl^s 106 Street surface railroads 43 Strike-breaker, assault upon 104 Subpoena > 156 Subsequent accidents 124, 125 Subway construction TQ reaching street 79 crossing tracks 79 injury after discharge 79 attending call of nature 79 Subrogation against insurer ; 147 Subrogation in action against third persons 45, 141 Subrogation to remedy of employees 45, 141 rule for .' 189 release by employee, effect of 142 recovery limited to amount of compensation 143 (See Part I, Sec. 24, page 45) Suits against third persons ' 45, 141 rules for 189 See "Negligence of Third Persons" Surplus and reserve of State Fund 159 investment of 160 Suspension of death benefits 129 Switching empty cars 169 Switching intrastate freight 42 Tailor working at home 85 Taking inventory 169 Taking poison by mistake 102 Temporary partial disability 123 Testing watch 74 Tetanus, accidental 107 Theatres 91 Threshing machine, operation of 97 Time of beginning or stopping work 10 Tip of finger 120 Tips, when included in "earnings" 109 Toes, loss of 120 Toilet, injury in 105 Traction engine, operation of 97 Trade risk, basis of compensation legislation (Part I, Sec. 2) 7 Transcript of minutes 157 Traveling salesmen (Part I, Sec. 12) 24 See "Salesmen" Trench cave-in 103 Truck drivers 14, Trust fund created 140, 141 Tuberculosis 107 Typhoid fever 108 GENERAL INDEX 261 [keferences aee to pages] u Unconstitutionality of portion of act, effect of 170 Undertaking 91 Union men, assault by 104 Universities 19 Unexplained drowning 76 Unfair decision reversed 134 Unloading vessel 76 Unloading wagon 86 Unmarried employee, dependents of 128 Use, loss of 121 Use, loss of, question of fact 121 Vehicles 85 See "Operation of Vehicles" Vessels, operation of 75 See "Operation of Vessels" Vessels engaged in interstate commerce 168 Vessels, repair of 36, 75 Vessels, optional remedy of employees 37 Vessels in foreign waters 36-38 Vessels, longshoreman injured on 77 Vessels of foreign states and countries excluded 36, 75 Violation of the act, penalties 5, 146, 165, 166 Violations of Labor Law: Employment secured by 95 Injuries caused by 34, 54, 55 State Insurance Fund covers 59 W Wages: basis of compensation 116 seven day employees 116 extra employees 117 seasonable employments 117, 124 determination of, question of fact 118 of minors, increase of 118, 129 free board as 110 free rent as 110 defined 109 tips 109 percentage of winnings 109 deduction from by employer prohibited 144 Wagon, workman protecting 102 Waiting period 114 Waiver agreement void 144 Waiver of notice of injury under Liability Act 208 Waiver of penalty 146 Walking on railroad track 105 Watch, testing 105 Watching cargo ''8 262 GENERAL INDEX [references are to pages] Watching boats 78 Watchman on new construction work 169 Watchman 74, 87 Watchman struck by train 74 Water, injury on 38, 97 Water, leaving work to get drink 103 Wholesale dealer t 91 Wholesaler not conducting storehouse for pecuniary gain 97 Widow and children, preferred as dependents 11 Widow and children, amount of compensation 11, 126 Widower must be an actual dependent 11, 126 Wife, common law 127 Wife, marriage subsequent to accident 126 Wife of captain, services of 76 Willful misconduct 112 Winnings, percentage of 109 Withdrawal of employers from State Fund 164 Witnesses : punishment of 156 fees and mileage of 156 Words construed: See "Definitions" Work, reporting for 102 Work, going to and from 10, 79 Work, injured while preparing for ; 102 Work, injuries after 105 Work, interruptions in 10 Work, intervals for meals, etc 104, 106 Work, temporarily doing for another employer 103 Work, piece 97 Work, see "Arising out of, etc." Working in coal mine 42 Working on new telegraph line 169 Workmen, loaned to others 94 Workmen, who are, under the act 94 See "Employees" Workmen, injured, examination of 131 Workmen's Compensation, history of 4 Workmen's Compensation distinguished from other liability 3 Workmen's Compensation Commission abolished 161 Workmen's Compensation Insurance 51, 145, 147 Workmen's Compensation Law, annotated 73 Workmen's Compensation Law constitutional 4 Workmen's Compensation Law, application of 73