153 N.E. 67 | NY | 1926
This appeal represents an effort to secure an award under the Workmen's Compensation Law (Cons. Laws, ch. 67) in favor of the claimant on the theory that her injured husband was an employee and also that the policy issued by the carrier covered him as an employer and, therefore, insured against the accident suffered by him while engaged as such employer in the per formance of work being carried on by the copartnership. The latter is the more important claim.
Claimant's husband, upon whom she was dependent within the provisions of the Compensation Law, was a member of a copartnership engaged in carrying on a business of limited proportions and while he was performing labors incidental to the purposes of the copartnership *259
he was so injured that death resulted. No question is made but that under the provisions of section 54, subdivision 6, of the Workmen's Compensation Law a policy may be taken out which will insure employers who perform labor "incidental to their occupations." This is a remedial and wise provision and, in accordance with well-established principles, we ought to construe it liberally to the end of effectuating if possible the purpose for which it was adopted. The trouble in this case is that all of the facts by which we must be guided oppose rather than support the claim that decedent was insured as an employer. If a policy is intended to cover employers within the permission of the statute that purpose ought to be indicated by its terms. Whatever the intention of the parties may have been, the policy before us not only does not contain any provisions covering the employers but by its terms it is unmistakably limited in its application to employees. In addition to this the findings of the Industrial Board, which made an award in favor of claimant and which are binding upon her now, are to the effect that decedent was injured while engaged as an employee and at work for his employer. Thus we are compelled to decide against the claim on this theory of insurance for an employer and are relegated to the question whether under the circumstances an award can be sustained because of injuries received by the decedent while engaged as an employee. Carrying this question farther it becomes the one whether a copartner can become the employee of himself and his partners as employers and we think that a negative answer must be made to this question. The copartners, of course, are the principals and employers and we do not think that it is within the contemplation of the Workmen's Compensation Act that one of them may become the employee of himself and his associates and thus at the same time occupy the inconsistent attitudes of employer and employee. The Workmen's Compensation Law, in our *260
opinion, does not contemplate any such anomalous situation and it is entirely opposed to well and long-established principles of law which to a certain extent furnish the foundation for the Compensation Law, that a partner should have a claim against himself and his copartners for an accident springing out of the work of the copartnership and for the conduct of which he is responsible. This question has been thus directly or indirectly decided in other jurisdictions (Cooper v. Industrial AccidentComm. of Cal.,
The order appealed from should be affirmed, with costs against the State Industrial Board.
CARDOZO, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; POUND, J., not voting.
Order affirmed, etc. *261