Claim of Kenny v. Union Railway Co.

Lyon, J.: This is an appeal permitted by section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1913, chap. 816, re-enacted and amd. by Laws of 1914, chap. 41, and amd. by Laws of 1914, chap. 316) by the Union Railway Com pany from a decision and award of the State Workmen’s Compensation Commission awarding compensation to the widow and two children of John J. Kenny, deceased. Deceased, who had been working for upwards of three months as a conductor upon an electric street surface car of the Union Railway Company, sustained accidental injuries, September 21, 1914, resulting in his death that day. The railway company, which was its own insurance carrier, contested its liability to make payment of the award upon the ground that the relation of employer and employee did not exist between the company and deceased at the time of the happening of the accident, for the reason that deceased had made written application for employment by said railway company in May, 1914, by aid of which he had obtained employment, in which application he had falsely and fraudulently stated, in violation of section 939 of the Penal Law, that he was unmarried, and had not been employed on any railroad. Concededly deceased, at the time of making such application, was married and had two children, and had been employed by the Yonkers Railroad Company as a conductor from January, 1912, until the spring of 1913, a period of about one year and two months, and had been discharged by that company for failure to ring up fares. Section 939 of the Penal Law provided, so far as material to be considered here, that “A person who obtains employment * * * by * * * aid * * * of any false statement in writing, as to his * * * previous employment * * *, is guilty of a misdemeanor.” The railway company conceded upon the hearing before the Commission that in employing men it made no distinction between married and single men, and that it would not have rejected deceased had he stated that he was a married man, but its counsel stated upon the trial that had the 'company known the facts, it would most likely have rejected him for saying that he was single when he was married; and one of the superin [500] tendente of the railway company testified that it would not have employed deceased had it known that he had been employed by the Yonkers Railroad Company and discharged. The counsel for the railway company offered in evidence applications claimed by said counsel to have been made by decedent to the Yonkers Railroad Company and to the Union Railway Company. The examination made by the members of the Commission of the alleged signatures of decedent to both instruments, photographic copies of which applications are contained in the record, fully justified the doubt expressed by the chairman of the Commission as to the signatures having been made by the same man, and hence warranted the Commission in holding as matter of fact that the contestant had not satisfactorily established the making by decedent of the alleged application containing the false statements. Such holding would of itself have justified the Commission in disregarding the objections made by.the railway company to the allowance of compensation to the widow and children of deceased, and would have been conclusive. Passing this, however, and conceding that the false statements were in fact made by the deceased, we think the award should be confirmed. There is no merit in the contention of the railway company that it was not an employer and the deceased not an employee within the meaning of the Workmen’s Compensation Law at the time he received the fatal injuries. Section 3 of that statute defines employer and employee as follows: “ 3. ‘ Employer ’ * * * means a * * * corporation * * * employing workmen in hazardous employments * * *. 4. ҅ Employee ’ means a person who is engaged in a hazardous employment in the service of an employer.” Employment in the operation of an electric street railway is specified in the act as a hazardous employment. (See § 2, group 1.) While the relation of employer and employee as defined by the statute must have existed at the time deceased sustained the injury, it matters not whether the employment was under a contract concededly valid as to both parties, or under a contract voidable at the election of the employer, or whether the liability of the employer for wages was fixed, or determinable under quantum meruit. The vital question is whether the rela [501] tion of employer and employee existed "between the deceased and the railway company, and the facts being conceded, the question is one of law. Liability under section 939 of the Penal Law is based upon the fact of the person being in fact an employee, and having obtained employment by aid of the false statement. The Workmen’s Compensation Law does not except from its benefits employees who have obtained employment in violation of this provision of the Penal Law. The Workmen’s Compensation Law is not to be read into the contract of employment as forming a part of it and as dependent for its enforcement upon the validity of the contract of employment. Although making the false statements constituted a misdemeanor, they did not render the contract of employment void, but at most voidable at the election of the employer, which it at no time saw fit to exercise. The false representations in no way related or contributed to the cause of death. The plain purpose of the statute was to provide compensation to an employee for an accidental personal injury and to the family of an employee who has suffered death as the result of such injury sustained by the employee arising out of and in the course of such employment “without regard to fault as a cause of such injury,” with the two specified exceptions of “where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty.” (See § 10.) Ooncededly the injury was wholly accidental and neither exception applies. In the case of Hart v. N. Y. C. & H. R. R. R. Co. (205 N. Y. 317), which was an action brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by negligence attributable to defendant, deceased had obtained employment with defendant by falsely representing in writing that he was over twenty-one years of age,' thereby evading a rule of the defendant forbidding the employment of minors. While misrepresentation as to age was not punishable under section 939 of the Penal Law, nevertheless the deceased obtained the employment in which he was injured by means of such false representation. [502] The court held that while the misrepresentation of the. deceased affected the contract of employment in the sense that it made it voidable, it did not affect the relation of master and servant with respect to the former’s obligation under the statute respecting the safety of persons serving it. “Notwithstanding that the deceased, by his misrepresentation, evaded the rule of the defendant forbidding the employment of minors, he was, actually, in its service, and, therefore, was entitled to the protection of an employee accorded by the law.” In the case of Galveston, H. & S. A. Ry. Co. v. Harris (48 Tex. Civ. App. 434) it was held that the fact that a brakeman falsely stated in securing his position that he had never had any litigation with the railroad company, while ground for the rescission of his contract, did not render such contract absolutely void or terminate the relation of master and servant existing at the time of the injury. The Union Railway Company was its own “insurance carrier,” having furnished satisfactory proof to the Commission of its financial ability to pay the required compensation, and having deposited the securities required by the Commission to secure its liability to pay the same. However, it thereby obtained no immunity or exemption from liability for the payment of compensation which would appertain to a stock corporation or mutual association had it instead of the railway company been the insurance carrier. The action of the Commission in this case is consistent with the general scope of the Workmen’s Compensation Law as recommended in the able and exhaustive report of the Wainwright Commission made to the Legislature of 1910, upon which the act was founded. The plain purpose of the statute was to make the risk of accident one of the industry itself, to follow from the fact of the injury, and hence that compensation on account thereof should be treated as an element in the cost of production, added to the cost of the article, and borne by the community in general. That the statute might be general in its scope, provision was made (§ 10) to provide compensation for every accidental personal injury to an employee arising out of and in the course of such employment with the two exceptions before specified. [503] The respondent contends, however, that in order properly to have brought the decision of the Commission. before us for review the appellant should have filed exceptions to the findings of fact or conclusions of law. This was not necessary. The act provides (§ 68) that the Commission in conducting a hearing shall not be bound by common-law or statutory rules of evidence, or by technical or formal rules of procedure, except as in the act provided, but that the Commission may make such investigation, or inquiry, or conduct the hearing in such manner as to ascertain the substantial rights of the parties; that (§ 20) in making or denying an award, the Commission shall make and file a statement of its conclusions of fact and rulings of law; that the decision of the Commission shall be final as to all questions of fact, and except in case of appeal to this court, final as to all questions of law; and that (§ 23) such appeal shall be heard in a summary manner, and shall have precedence in this court over all other civil cases. There is no provision of the statute or rule of this court requiring the filing of exceptions, or, as in England and in some of the States, that the grounds of appeal be stated in the notice of appeal; but it was intended that the procedure both before the Commission and in this court should be simple and without unnecessary delay or useless formality; and that until otherwise provided, the appeal to this court should bring up the whole case, to be heard upon the record of the Commission and the briefs and arguments submitted by the respective parties. The decision and award of the Commission should be affirmed. All concurred. Decision and award of Commission affirmed.