160 N.Y.S. 85 | N.Y. App. Div. | 1916
On the 20th day of October, 1915, Charles E. Allen was in the employ of the Highway Department of the State of New York and engaged as a foreman of a concrete gang, which was doing maintenance and repair work on State road No. 5338A, in the town of Sanford, Broome county. The State, for reasons which are set forth in the record, was doing its own repair work by its own equipment and force, and the Commission found as a fact that the decedent received his injuries while he was employed as a foreman of a concrete gang of the State Highway Department of Maintenance and Eepair, which department had charge of the maintenance and repair of the State and county highways; also 'that the deceased, at the time he was injured, was steering the tongue of a concrete mixer, the front wheel of which struck a plank and threw him against a section of the concrete wall, fracturing his skull, resulting in his death on the following day; that the injuries were accidental, resulting out of and in the course of his employment, and that his average wages were twenty-three dollars and eight cents per week, and that the claimant, his mother, was dependent upon him for support. Having found these facts, the Commission refused to allow the claim on the ground that the State of New York, through its Highway Commission, was not engaged in business for pecuniary gain. The claimant appeals from this determination.
We quite agree with the appellant’s assertion that “ by the amendment of subdivision 3 of section 3 .of the Workmen’s Compensation Law (chap. 316, Laws 1914)
The theory of the law, and of the underlying constitutional authorization, is that the accidents growing out of the operation of industrial enterprises become a legitimate part of what is known in commercial life as the “ overhead ” cost, the same as the breakage, wear and tear of machinery and equipment, and it is only in those industries which are carried on for pecuniary gain that “ the cost of operating the busi
In June, 1914, immediately after the passage of the act, the then chairman of the State)Workmen’s Compensation Commission addressed a letter to the then Attorney-General of this State asking “specifically whether the provision of subdivision 5 of section 3 applies limiting employment to c a trade, business or occupation carried on by the employer for pecuniary
The determination appealed from should be affirmed.
All concurred, except Howard, J., who dissented.
Determination affirmed.
Consol. Laws, chap. 67 (La ws of 1914, chap. 41), § 8, subd. 8, as ami by Laws of 1914, chap. 316.— [Rep.