Claim of Dale v. Saunders Bros.

Kellogg, P. J.: Saunders Brothers, appellants, were makers uf brick, and Dale was one of their teamsters. The sworn report made by them to the Commission states concisely the manner in which he met his death. “ I sent him for a load of sand, while there it fell. Sand bank fell, and he died the next day.” Saunders Brothers were drawing this sand for profit, and Dale was their teamster; the fact that his team was not moving when he was injured, and that he was loading sand in the wagon in order to draw the load to Auburn, does not deprive him of the benefit of this law. He was operating the wagon just as much as if he had been driving on the road. The operation of a wagon or truck, referred to in group 41 of section 2 of the Workmen’s Compensation Law, is not confined merely to the moving vehicle, but relates to anything incident to the employment, such as caring for the horse in the stable after the day’s work is done, as we held in Matter of Smith v. Price (168 App. Div. 421). The loading and unloading of the wagon, the necessary 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. [530] If a brickmaker requires his teamster to use his team temporarily in carting for a neighbor, the employee does not thereby lose the protection of this lav/. Such service may be treated as an incident to his general employment. He is not to determine as to the business of his employer, but must do as he is told, and the employer is responsible for the results. That the injury was one arising out of and in the course of his employment by said appellant is apparent. The award, therefore, is clearly within the provisions of the Workmen’s Compensation Law. The employment was a hazardous one within group 19 and also within group 41. It is urged, however, that in the case of Matter of Gimber v. Kane Co. (2 State Dept. Rep. Official, 475; affirmed by this court without opinion, 171 App. Div. 958), upon substantially similar facts an award was made against the proprietor of the sand pit, and it is claimed that if we were right there, the Commission is wrong here. In my judgment either the proprietor- of the sand pit, the special employer, or the general employer, the brickmaker, is liable in this case. As has frequently been said, the Workmen’s Compensation Law is a new departure in giving a remedy to a workman for an injury received in a hazardous employment. The loss from such inj ury is placed without regard to fault upon the employment to the relief of the employee. It is considered a part of the cost of the product resulting from the employment and is thus charged upon the ultimate consumer. In addition to this, it was fairly within the intent of the law that by making these hazardous employments liable for all injuries occurring in them without regard to fault, the employer would exercise the utmost care to prevent accidents. The act provides a summary remedy disregarding the ordinary procedure and rules of evidence and prescribes radical presumptions in favor of the claimant. The law of negligence, the rules relating to master and servant, the rule as to the inability to serve two masters, are of but little value here. The statute itself has removed these questions to quite an extent from our consideration. It names the hazardous employments; it defines an employee as a person engaged in such employment in the service of the employer, and, defines the employer as a person employing workmen in such employ [531] ment. When the statute defines the employer as one employing men in a hazardous employment, it does not necessarily mean that he is hiring a servant by a personal contract with him, but ib means that he is using or engaging the man in a hazardous work. It is not a question of hiring’, or of master and servant, but of using and putting the man in the hazardous employment which the act has in view. The name of the act, “ Workmen’s Compensation Law,” indicates that it is not to be limited to cases where the actual relation of master and servant exists, but to workmen and those employing or using them in the manner stated. When it appears that a person is carrying on such hazardous employment for profit and that a person in his service or who he is employing or using therein receives an injury, compensation follows. Clearly the proprietor of the sand pit must get his sand to market and must use men and teams for that purpose, and, when he arranged from time to time with the Saunders that they were to furnish him with teams to draw sand at the rate of four dollars and fifty cents per day figured at four loads of sand as a day’s work with the right to draw the four loads in one or on different days, it is easy to say that the driver-within the meaning of the act, was engaged in the hazardous employment of “ sand * * * pits, ” and that the proprietor was employing or using him in the hazardous business which caused his death. He was there for two reasons: (1) Because he was in the employ of the Saunders Brothers, as their driver, and was loading the sand in their wagon, as his duty as their driver required him to do. (2) The proprietor of the sand pit employed the use of the team and driver to enter into the sand pit and draw the sand therefrom. The driver was, therefore, engaged in two hazardous employments, the ordinary business of a teamster, and working in and about a sand pit. The proprietor of the sand pit had two regular helpers there who assisted the teamster in loading the wagon. It is difficult to see upon what theory the law could make the owner of the pit liable to those men and not to the teamster if all were hurt while working side by side in loading the wagon. If the driver was accidentally injured while drawing the [532] sand upon the highway by falling from the wagon or in any way not connected with the sand itself, it cannot be claimed that the special employer, the sand pit proprietor, would be liable. The same may be true as to an ordinary accident happening upon the sand pit premises but not connected with the hazards of the pit itself. But when the accident is caused, as in the Girnber case and in this case, by the sand in the pit falling upon the person where the proprietor had put him to work, the liability may fall upon the proprietor of the pit. As we have said, the law of master and servant does not necessarily control here. The question is, was the employee engaged in a hazardous employment in the service of the defendant or of the sand pit proprietor, or of both ? 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 Saunders Brothers directed, and, by requiring him to go into the sand pit and subjecting him to the increased danger there, they cannot relieve themselves from the ordinary duties and liabilities 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 different persons might be hable to make the compensation does not prejudice the injured employee or his family. It furnishes an additional guaranty that payment will be made. The general 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 employee a choice of remedies with but one compensation. I, therefore, favor affirmance. All concurred, except Woodward, J., dissenting in opinion in which Howard, J., concurred.