Claim of Aylesworth v. Phœnix Cheese Co.

155 N.Y.S. 916 | N.Y. App. Div. | 1915

Woodward, J.:

It appears from the claim filed by Earle Aylesworth that he was engaged in floating ice on the Nandella river on the 26th day of December, 1914, in the forenoon of that day, and that while so engaged two of the fingers of his right hand were frozen, so that amputation became necessary. The general work undertaken by the Phoenix Cheese Company at the time of the freezing was harvesting ice, and the claimant was employed solely for this purpose. He was asked,- “ How long have you worked for present employer ? ” and the answer was, “ Just filling their ice house.” Asked if he was doing his regular work when injured, the answer was “Yes.” It thus appears that the Phoenix Cheese Company employed the claimant for the single purpose of harvesting ice, and his special duty appears to have been the floating of the cakes of ice after they had been cut. In performing his work upon a day in December, when the mercury stood at thirty degrees below zero, he froze some of his fingers, and the Compensation Commission has awarded him $159.50. The Phoenix Cheese Company and the Zurich General Accident and Liability Insurance Company, the insurance carrier, appeal from the order.

Obviously this award cannot be sustained. The only group of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 6'T; Laws of 1914, chap. 41) suggested as covering this case is group 33, which names as one of the hazardous employments the “ Canning or preparation of fruit, vegetables, fish or food stuffs; pickle factories and sugar refineries.” The theory appears to be that the Phoenix Cheese Company (which we will assume is engaged in the preparation of food stuffs) was the employer of the claimant, and that the harvesting of ice was incident to its business of preparing food stuffs. What might be the law if the claimant was regularly employed in making cheese and had been sent out into a freezing cold to assist in gathering a crop of ice, is not now before us; the record shows that he was employed for this special purpose and was engaged in his regular occupation when the injury was sustained, and there is no suggestion in the statute that a common laborer engaged in harvesting ice is engaged in a hazardous occupation. “ Hazardous employment, ” as defined by subdivision 1 of section 3 of the act in question, “ means a work or occupation described in section two of this chapter,” and section 2 provides that the “ Compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous employments. ” Among such employments there is no mention of harvesting ice, and the record conclusively shows that the claimant was not employed in “ Canning or preparation of fruit, vegetables, fish or food stuffs; pickle factories and sugar refineries.” He was at work at his regular employment of harvesting ice, and under well-established rules of construction the language of the Workmen’s Compensation Law found in group 33 of section 2 cannot be stretched to cover this case. First, the express mention of the matters embraced in the several groups necessarily excludes those not mentioned (Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57); and, second, the rule of ejusdem generis would prevent any general language to he extended beyond the special language used. (People ex rel. Kinney v. White, 64 App. Div. 390, 392; Lantry v. Mede, 127 id. 557, 560.)

The order appealed from should be reversed and compensation denied.

All concurred.

Award reversed and claim dismissed.