Claim of Rutledge v. Al. G. Kelly & Miller Bros. Circus

Aulisi, J. Appeal by employer and its insurance carrier from a decision of the Workmen’s Compensation Board awarding compensation benefits. The employer, Al. G. Kelly & Miller Bros. Circus, owned and operated a circus which travelled throughout the country giving performances. The home office and apparent Winter quarters of the circus were in Hugo, Oklahoma. The claimant, Jack Rutledge, was hired in Arkansas where he then resided in April, 1963, as a driver for the water truck, as a laborer and as a guard. He was hired by Mr. McMann, the 522 employer's general manager, on an apparent day-to-day basis with wages paid weekly in cash. Claimant was also provided with meals and a place to sleep. On or about June 9,. 1963, Rutledge entered New York State with the circus after having travelled through various other States. The circus was ta give performances throughout New York for approximately six weeks, and arrived in Auburn on June 28, 1963., On the night of the performance in-Auburn, claimant was instructed by MeMann to guard an area called the-“hack yard”. This consisted of the area behind the tents where the power plant, of the, circus was set up> the place where the animals were kept and the- trailers used as living quarters by the circus performers were, parked» While on duty in the assigned area, claimant, attempted to, stop two young men from entering the “back yard”, a fight, developed and ended when claimant was stabbed in the abdomen by one. of the intruders.. The assault, resulted in a serious wound and this injury is the subject, of the claim. Appellants object to the decision and award on the grounds that New York State is without, jurisdiction and assert that claimant was the aggressor and contend that the accident was thereby removed from the, course of employment. The-question of jurisdiction is dependent upon the. location of the employment and this is governed by the factual, determination of the board in each particular case. If the, facts presented show sufficient significant contacts, with this State, so that it, ean reasonably be said that, the employment, is located in. New York then this. State’s Workmen’s Compensation Board has. jurisdiction (Matter of Nashko v. Standard Water Proofing Co., 4 N Y 2d 199). In. such a ease the. injured workman comes within the coverage- of our statute when the facts show- that in the course, of employment the work-producing injury happened at, and for some period at least was, confined to a definite, location or loea^ tions within this; State, (see Matter of McMains v. Trans World Airlines, 18 A D 2d 956, mot. for lv. to app. den. 13 N Y 2d 593; Matter of Herman v. Ringling Bros. Barnum & Bailey, 10 A D 2d 745; Matter of Bauss v. Consolidated Chimney Co., 270 App. Div. 70). Under the. peculiar circumstances of this, ease, including- the facts that the- employer obtained Ms compensation coverage while in New York State from appellant, carrier, that claimant, was paid, and. supervised in New York, we may not say as a matter of law that, the hoard could not. find that, claimant was engaged in employment located in-Ne.w York Slate at the time of Ms- injuries sustained here. Appellants’' other contention is; also, a factual question, which was determined by the -board in favor- of the. claimant. There is, substantial evidence, in the record, to sustain a. finding that claimant was, doing Ms assigned task in keeping his subsequent, assailant out of the restricted area (see Matter of Corbett v. Biewener, 270 App. Div. 782, mot. for lv. to app. den. 295 N. Y. 988). Decision affirmed,, with one hill of. costs to respondents., Gibson,, P. J., Herlihy and Taylor,. JJ.„ concur-;