Matter of Smith v. Aerovane Utilities Corp.

Crane, J. The Aerovane Utilities Corporation is a domestic corporation with office and principal place of business located at 292 Madison avenue in the city of New York. It is engaged in the advertising business, erecting advertising signs on poles throughout the country. Its business is operated and conducted from New York city. Francis M. Smith, the claimant, resided at 293 Third street, Albany, N. Y., and had worked as a laborer for the Aerovane Utilities Corporation, putting up advertising signs at Gloversville, Johnstown, and around Albany, Troy and Schenectady. For a short period he had worked for a contractor named Dollard, but had come back to his old employer, the Aerovane Utilities Corporation, and had worked for it five days or more before he was sent by its foreman to assist in putting up advertising signs in the vicinity of Scranton, Penn. The foreman, Badertcher, called for the claimant in his automobile at his club in Albany and took him out to Scranton where he was at work for about a week and a half when he was injured in the accident for which he seeks compensation. While in Scranton the few employees *128 doing the work lived at a hotel and motored out to the various places where the advertising signs were being placed. Badertcher, the foreman, testified that his company was engaged in the business of constructing advertising signs throughout the country; that when Smith went to work for him or the Aerovane Company, they were working at Gloversville and Johnstown, New York State. “ Q. How long had Mr. Smith worked for you under the Aerovane and before you went to Pennsylvania? A. About two weeks. * * * I told him I wanted him to go to Pennsylvania with me, when I got ready I would take him with me. He [Mr. Burns, the president of the company] told me to take the men I had if they would go, Mr. Smith went with another fellow I also hired in New York State. We were told it would take about four weeks. “ Q. This work at Scranton and around in the different directions of the State was putting up these standards? A. Yes. ■ “ Q. If he [Smith] had not been injured would he have been employed in New York State upon his return? A. Yes, sir. “ Q. So your work down in Pennsylvania was of temporary nature? A. Yes. “ Q. The same class of work that he was doing here? A. Yes. “ Q. That was incidental to other business here in New York? A. Yes. “ Q. From time to time did you have occasion to go to other states-to do some of this work? A. Yes. “ Q. Stayed a short time and then came back to New York State? A. Yes. “ Q. Went from New York State temporarily to the other states to put this equipment up and returned to New York State? A. Yes.” This case comes squarely within the case of Matter of Post v. Burger & Gohlke (216 N. Y. 544, 554). The *129 defendant, in that case a corporation, was engaged in sheet metal work in Brooklyn, N. Y., and employed William Post, a resident of Brooklyn, as a sheet metal worker. The contract of employment was made in the State of New York. On September 1,1914, he was sent by his employer to perform certain sheet metal work on a grain elevator in Jersey City, State of New Jersey, and while engaged in his work on that day, a sheet metal slipped from his hands and he received an injury for which he was compensated by an award, under the Workmen’s Compensation Law (Cons. Laws, ch. 67). This court affirmed the award, stating in the opinion: “ The language of the statute if construed literally, and we see no reason why it should not be, expressly includes the employee in this case, as he was engaged in his employment in New Jersey, away from the plant of his employer, and under the employer’s express direction.” The decision was unanimous, including the present Chief Judge of this court, and former Chief Judges Willard Bartlett, His cock and Cardozo. Matter of Post v. Burger & Gohlke has been cited and followed with approval in Matter of Spratt v. Sweeney & Gray Co. (216 N. Y. 763); Matter of Valentine v. Smith, Angevine & Co. (216 N. Y. 763); Matter of Klein v. Stoller & Cook Co. (220 N. Y. 670); Matter of Fitzpatrick v. Blackall & Baldwin Co. (220 N. Y. 671); Matter of Smith v. Heine Boiler Co. (224 N. Y. 9). The facts in Matter of Klein v. Stoller & Cook Co. (supra) were these: The defendant was engaged in manufacturing ornamental iron work with its plant and place of business at 550 Trinity avenue in the Bronx, New York city. The claimant, Samuel Klein, was an ornamental iron worker residing at 871 East One Hundred and Seventy-ninth street, New York city. He was engaged, at five dollars a day and his carfare to and from New York, to construct ornamental iron work on a hotel building in Newark, N. J., and while there was injured in the course of his employ *130 ment. This court sustained an award made to him under our Compensation Law. In Matter of Smith v. Heine Boiler Co. (supra, p. 11) we said, through Cardozo, J.: “A duty is imposed by law on employers conducting a hazardous employment in New York to insure their workmen against injury, and the insurance covers injuries incidental to that employment though suffered in another state.” When the State Industrial Board in this claim of Francis M. Smith found that his case came within the provisions of our Workmen’s Compensation Law, they were sustained by the evidence and also by the authorities here cited. No distinction can be drawn in the application of the principle between this case and Matter of Post v. Burger & Gohlke, and Matter of Klein v. Stoller & Cook Co. (supra). The respondent relies upon Matter of Cameron v. Ellis Construction Co. (252 N. Y. 394, 397), which, however, is not a departure from the rule laid down in the Matter of Post v. Burger & Gohlke case; in fact, the opinion in the Cameron case expressly cites and approves of our former decisions in Matter of Post v. Burger & Gohlke and Matter of Klein v. Stoller & Cook Co., and says: “ When the course of employment requires the workman to perform work beyond the borders of the State, a close question may at times be presented as to whether the employment itself is located here. Determination of that question may at times depend upon the relative weight to be given under all the circumstances to opposing considerations. The facts in each case, rather than juristic concepts, will govern such determination. Occasional transitory work beyond the State may reasonably be said to be work performed in the course of employment here; employment confined to work at a fixed place in another State is not employment within the State, for this State is concerned only remotely, if at all, with the conditions of such employment.” *131 There was no “ fixed place ” of employment within the State of Pennsylvania within the meaning of this word as used in the Cameron case, for it definitely appears from the testimony that Smith’s employment was temporary, transitory, and incidental to his New York work. In the Cameron case the claimant was a resident of Canada, employed by a Massachusetts corporation to operate an engine at a sand pit located in Canada, from which sand and gravel were taken for use of the employer in the construction of a road in the State of New York, and we held that the claimant did not come within the provisions of our Workmen’s Compensation Law. The only connection the claimant had with New York State in that case was the fact that a foreign corporation was temporarily doing work here. This is entirely different from a domestic corporation located and employing men here doing work temporarily outside the State. Cameron and his work were fixed in Canada. Smith’s employment was here in New York State, the nature of his work requiring him to go temporarily into other States under the direction and control of employers located here. The order of the Appellate Division should be reversed and the award of the State Industrial Board confirmed, with costs in this court and in the Appellate Division to the claimant-appellant.