| N.Y. App. Div. | Nov 10, 1915
Lead Opinion
The State Industrial Commission has certified to this court the question: “Was the claimant at the time of the injury engaged in a hazardous employment within the meaning of the Workmen’s Compensation Law, and entitled to compensation as a result of injuries arising out of and in the course of such employment.” The employer was engaged in the wholesale produce business, with an office at 348 Broadway, Albany, N. Y. In connection with said business, and upon said premises, he maintained a warehouse or place of storage in which the produce owned by him was kept in storage until sold at wholesale.
The claimant was in his employ as shipper, and on the 28th of September, 1914, while tiering barrels of vinegar, weighing about 500 pounds each, in the storehouse, his right hand was pressed against a brick wall, injuring the second and third fingers. The Commission has found that the injuries were accidental, arose in the course of employment, and were without fault of the employee.
The alleged hazardous employment in which claimant was engaged is embraced in group 29 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), which is as follows: “Milling; manufacture of cereals or cattle foods, warehousing; storage; operation of grain elevators.”
The single question, therefore, for decision is whether the claimant was engaged in the “employment” of “warehousing ” at the time he sustained his injuries. Warehousing is defined in the Century Dictionary as “1. The act of placing
Claimant’s employer was not carrying on the business of warehousing for pecuniary gain, hence the submitted question should be answered in the negative.
All concurred, except Kellogg, J., who dissented in opinion, in which Howard, J., concurred.
Dissenting Opinion
It is urged that the employer was storing only his own goods and .was not engaged in the business of storage, and that the statute contemplates a warehousing business or storage business carried on for the storage of goods of others for hire. We think this is too narrow a construction of the law. If the employer has a large storage warehouse and was receiving-heavy packages of merchandise which were to be moved from time to time by his employees, the risk to them is the same whether he is storing the goods for himself or for others. The statute is a beneficial one, intended to throw upon the business the risks incident to and resulting from it, and the liability ought not to depend upon the question whether the goods in storage were the goods of the employer or the goods of others. In the same group is the operation of grain elevators. It is immaterial whose grain is being elevated, whether the elevator is used for the grain of the employer or of another. The nature of the hazard is the important thing.
G-roup 10 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) is “Long-shore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other products or. materials, or moving or handling the same on any dock, platform or place, or in any warehouse or other place of storage.” This group gives color to the construction we have taken of group 29 of section 2. It is the handling of the cargoes, or parts of cargoes, the moving of heavy merchandise, that is deemed a hazardous business.
We, therefore, conclude that the question submitted to the court should be answered in the affirmative.
Howard, J., concurred.
Question certified answered in the negative.