153 N.Y.S. 554 | N.Y. App. Div. | 1915
The claimant was an employee in the shop or factory of the employers whose business was “polished plate and window glass, jobbers and manufacturers of mirrors and bevelled plates.” The claimant was injured while assisting two coemployees in raising a light of plate glass, eighty-four by ninety-six inches, from the cutting table. The Commission has made him an award, apparently holding that his employment was within group 20 of section 2 of the Workmen’s Compensation Law. That group is “Manufacture of glass, glass products, glassware, porcelain or pottery.” Cutting up and bevelling glass, or making looking glasses of it may be considered a manufacture of glass products within the meaning of this law.
The appellants contend that it "does not appear that the claimant was engaged in one of the hazardous employments defined by section 2 of the law; that it does not appear that the glass which the claimant was. handling was being made into looking glasses or bevelled glass plates or even was to be cut into small-sized plates; that for all that appears he may have been packing glass which had been sold to a customer in the same condition it was in when received at the shop.
This contention overlooks the provision of section 21 that in
If the exact cause of the injury is not made plain to the Commission, the employer is at fault, as he has failed properly to report the accident. He has every means of knowing the facts and should not benefit by withholding them. If the employee is engaged in an employment declared hazardous by this law, but at times may work in a non-hazardous employment, it is not unreasonable that the injury should be considered within the act if the employer fails to show all the facts.
The State, in a way, assesses upon such hazardous employ
We, therefore, have a situation in which, if the employer had insured in the State fund, the insurance premium would rest upon the basis that when at work for his employer the claimant McQueeney was to be engaged in the hazardous business all the while, and the premium having been exacted upon that basis prima facie the loss should be met upon that basis. The administrators of the fund are not in a favorable position to contend that if he is injured while in the course of bis employment the fund is not liable to pay the loss. It is. not inequitable that as against the fund the injury should be assumed to be within the law, unless otherwise shown. An employer who is insured in the State fund has been compelled to pay in advance for the injuries arising in his employment, and upon that account, by section 53, is granted immunity from all other liability on account of accident to his employees,
The compensation awarded by the Commission is payable periodically in accordance with the method of paying wages, and in death cases may continue during the lifetime of the beneficiary, and in other cases may continue for a long period of years. No one can be a self-insurer unless he satisfies the Commission of his financial ability to continue all payments awarded, and he may be required to deposit securities to insure such payments. (§ 50.) The risks and changes of business are such that it is evident that the ordinary individual or firm cannot qualify as a self-insurer. The large corporations whose continuous existence is assured, or who are able to deposit the securities required, can qualify as self-insurers. In effect, therefore, the law requires that the ordinary individual and firm, and perhaps the great mass of employers, must insure in the State fund or otherwise. The law, therefore, should be construed on the theory that it contemplates insurance in the State fund, and employers who insure in the State fund or otherwise, or who are self-insurers, should fairly be governed by the same rule. It is the right of the individual employee and of the employer that they should be treated the same as all other employees and employers within the act.
The Legislature may from time to time change the rules of evidence and procedure, and a party’s constitutional rights ordinarily are not affected thereby. It may cast the burden of proof upon any party, and may make certain acts prima facie evidence of facts if the acts by any reasonable intendment bear upon or tend to establish the facts. The rule of presumption
But the presumption is fairly warranted by the constitutional provision mentioned.
We conclude, therefore, that the Commission was justified in determining that the employee sustained his injury in the course of hazardous employment. The award should, therefore, be affirmed.
All concurred; Howard, J., in result.
Award affirmed.