168 A.D. 425 | N.Y. App. Div. | 1915
Lead Opinion
I am of the opinion that the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1913, chap. 816, as re-en. and amd. by Laws of 1914, chap. 41, and Laws of 1914, chap. 316), fairly construed and beneficially applied, gives right of compensation to the present claimant before the State Workmen’s Compensation Commission. The work in which Robert Rheinwald, the claimant’s husband, was engaged at the time of his death, the manner in which he was doing it, the circumstances under which he came to be doing it, and the relation which his work bore to the business carried on by the respondent Builders’ Brick and Supply Company, combine to bring within the scope of the statute his accidental and mortal injury in the course of that work, and entitle his widow and surviving children to the compensation which the law contemplates shall be paid to them when occupational mishap cuts off the. wage earnings on which they were dependent for support. The Workmen’s Compensation Law must in fairness be deemed to have been enacted in furtherance of a legislative determination, enforced by explicit mandate of the people through amendment of the State Constitution (Art. 1, § 19), that a new and different scheme and basis of indemnity for industrial accidents should be adopted in this State, in the light of the social experience of other Commonwealths and countries. In j uries sustained
For these and consequent reasons, I am convinced that the
The facts of the present case are hardly controverted, but its issues are of vital importance to the efficiency of the plan of compensation created by the statute and the extent to which its administration will be able to fulfill the purposes for which it was enacted. At or about noon on July 1, 1914-, Robert Bheinwald, the husband of the claimant, was at work on a scaffold on one of the outside walls of a three-and-one-half story brick stable owned by the Builders’ Brick and Supply Company at One Hundred and Seventy-second street and West Farms road, in the borough of The Bronx, city of New York. For ten years he had been by trade a painter, especially a painter of signs, and on July first he was at work repainting a large sign which he had himself painted on this building wall several years before. In some accidental manner not explained by the record, he slipped from the scaffold or it gave way, and he fell to the ground, received a fractured skull and other mortal injuries, and died a few minutes later. Several months before his death there had gone into effect in this State the Workmen’s Compensation Law (Oohsol. Laws, chap. 67; Laws of 1913, chap. 816, as re-en. and amd. by Laws of 1914, chap. 41, and Laws of 1914, chap. 316), which declares (§ 2) that the "compensation ” provided for therein ‘ ‘ shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous employments: * * * Group 42. * * * painting, * * The statute further provides that “ ‘ employee ’ means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer, and shall not include farm laborers or domestic servants; ” “employer ” is defined to mean “a person * * * corporation * * * employing workmen in hazardous employments;” and “employment” is state’d to include “employment only in a trade, business or occupation carried on by the
The Workmen’s Compensation Law further provides that “ every employer subject to the provisions of this chapter shall pay or provide, as required by this chapter, compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury.” (§ 10.) The following section stipulates that “ the liability prescribed by the last preceding section shall be exclusive,” except that in the event an employer fails “to secure the payment of compensation for his injured employees and their dependents ” by one of the three methods enumerated in section 50 of the act, the injured employee, or his legal representative in case death results from the injury, has the option of compensation under the act or suit at law against an employer shorn of common-law defenses. (§ 11.) The defendant, respondent, the Builders’ Brick and Supply Company, had, pursuant to subdivision 2 of section 50, secured the payment of compensation to its injured employees by insuring the same with the Fidelity and Deposit Company of Baltimore, Md., known under the provisions of the act as the “insurance carrier.” (§ 54.) The Builders’ Brick and Supply Company having thus “provided compensation ” for its injured employees through securing the payment thereof by the insurance car
Upon the death of Rheinwald while at work as a painter on the sign of the Builders’ Brick and Supply Company, the notices required by statute (§ 18) were duly served in behalf of the widow and minor children, proofs of death were duly submitted, claim was made to the compensation provided for by the statute, the claim was duly brought for adjustment , before the State Workmen’s Compensation Commission, and testimony was taken at length. On August 31, 1914, the Commission handed down its findings of fact and conclusions of law adverse to the claimant’s contentions, and rendered the following decision: That “the deceased was conducting an independent business, that the defendant had no control over the work, and that Rheinwald was an independent contractor and not an employee within the meaning of the Compensation Law.” In this determination Chairman Dowling and Commissioners Darlington and Mosher concurred. Commissioners Wainwright and Mitchell filed a dissenting opinion, which expounded a contrary view upon the central issue in the case.
Section 23 of the act provides that “An award or decision of the Commission shall be final and conclusive upon all questions within its jurisdiction, as against the State fund or between the parties, unless, within' thirty days after a copy of such award or decision has been sent to the parties, an appeal be taken to the Appellate Division of the Supreme Court of the Third Department. The Commission may also, in its discretion, where the claim for compensation was not made against the State fund, on the application of either party, certify to such Appellate Division of the Supreme Court, questions of law involved in its decision. Such appeals and the questions so certified shall be heard in a summary manner and shall have precedence over all other civil cases in such court.” The claimant appealed from the Commission’s adverse determination, and on October 5, 1914, the Commission, on the application of her counsel, passed a resolution certifying to this court “the following question of law involved in the decision of the State Workmen’s Compensation Commission denying the
By the form of the question certified in the above quotation, of which the italics are mine, the Commission has asked this court for a ruling upon the basic question of law involved in the Commission’s decisión. The Commission made certain findings of fact, from which it reached the conclusion of law that Eheinwald was not an “ employee ” within the meaning of the Workmen’s Compensation Law. Section 20 of the statute makes the decision of the Commission “final as to all questions of fact,” but the Commission has certified the evidence taken before it, as well as its own findings of fact therefrom, to aid this court in reaching a determination as to the correctness of the Commission’s legal conclusion. The evidence taken before the Commission is, therefore, before this court to supplement, explain and illumine, but not to contradict or vary, the Commission’s findings of fact, and in all cases the question of the correctness of the Commission’s determination as to the applicability of the statute to the injury upon which the claim is based remains a question for judicial scrutiny, in the light of the facts as found by the Commission.
Examining the findings, then, in the light of the evidence, do they sustain the decision of a majority of the Commission that Eobert Eheinwald was a so-called “ independent contractor” and that he accordingly was not an “employee” within the meaning of the statute ? He was a painter by trade, and had worked at this trade for many years. He often did signpainting, for the Builders’ Brick and Supply Company and other concerns, but his work was by no means confined to signpainting. He did general painting “wherever he could get a job” and was “out of work,” as testified, “some of the time.” He had done all of the painting work which had been done for the Builders’ Brick and Supply Company and its affiliated concern, the P. J. Heaney Company, for at least five years before his death. He had, on various occasions, painted for them a sign, a derrick, a fence, an automobile, an automobile
The Commission has found as a fact that “the previous work done [by Bheinwald] for the Builders’ Brick and Supply Company had usually been done under oral agreement.” The terms of previous employments or contracts do not appear in the record. “ A written contract was asked for [by the Builders’ Brick and Supply Company] in this instance,” the Commission states, “because some work performed previously upon this sign had been -unsatisfactory and because agreement was required that he use certain specified materials and make good for faults in the work,” should any defects develop from specified causes within a period of four years. Accordingly, on June 30, 1914, he signed the following contract to do the work in the course, of which he was injured one day later: “I agree to paint new signs on stable and north end of office, same size and wording and remove old paint and lettering on same, all for the sum of fifty dollars and hereby guarantee all work to last in good shape for a period of four years from completion and agree to replace without charge any defects from chipping or poor material which may develop within that time. I agree
Materials as well as tools for painting performed by him he usually supplied, as in this instance, and he kept these in the cellar of his home. As an aid in obtaining signpainting to do, he had letter stationery or billheads printed with his home address and the indorsement “Robert Rheinwald, Jr., Signs.” It does not appear, however, that he ever sent out “ bills” or statements for any work done. On at least one occasion he had done work for another signpainter in the neighborhood, but it does not appear that he had ever employed a signpainter or had the assistance of a signpainter in any work done by him. The evidence, as well as the findings, fully support the position of the dissenting members of the Commission, that Rheinwald “ was of the grade of workers, and his work of the kind of work that this law contemplates. ” Of this there can hardly be doubt or denial. Rheinwald was in fact a workingman, engaged in doing, personally and exclusively, a kind of skilled manual labor which the Workmen’s Compensation Law specifically covers, and as to which it clearly contemplates, that those engaged therein shall not have to bear personally the inherent risks of their occupation or the burden of loss from accidental injury therein. The statute furthermore provides (§ 21) that in any proceeding for the enforcement of a claim for compensation thereunder “it shall b e presumed, in the absence of substantial evidence to the contrary, * * * that the claim comes within the provisions of ” the act. That legislative presumption is, of course, as operative and binding in this court as in the Commission below. When a workman or his survivor asks compensation for occupational accident under the statute, the presumption is clear and sufficient, in the absence of sub stantial evidence to the contrary, that he was an “employee” within the meaning of the statute and is entitled to call into activity its machinery for the economic distribution of the loss
The majority of the Commission have, however, sustained the contention of the insurance carrier and the Builders’ Brick and Supply Company that the widow and surviving children of the deceased painter are not entitled to the compensation provided in the Workmen’s Compensation Law, on the ground that “ the deceased was conducting an independent business, that the defendant had no control over the work, and that Rheinwald was an independent contractor, and not an employee within the meaning of the Compensation Law.” No finding of fact, it will be noted, was made by the Commission that the respondent Builders’ Brick and Supply Company had no control or supervision over the work being done by Rheinwald, and the question whether that conclusion and the parallel conclusion as to Rheinwald’s status as an “ independent contractor ” were legally justified must be determined here in the light of the findings as explained and supplemented by the evidence certified to this court by the Commission.
The action of the majority of the Commission presents essentially two questions for scrutiny here. The first of these concerns the correctness of the contention of the respondents that Rheinwald was not a “workman” or “ employee” but rather an “independent contractor,” within the meaning and scope of the terms “workman” or “employee” as used in “master- and-servant” statutes or in common-law decisions applying familiar rules of the master’s liability in negligence for injuries sustained by an employee. The second and more vital question addresses itself to the respondents’ contention that decisions at common law or under “ employers’ liability ” statutes, involving the question as to whom the master owes a duty of care and precaution arising out of the contractual relation of hiring, must he regarded as controlling now the determination as to who is an “ employee” within the meaning of a statute enacted pursuant to the changed social purpose which I have indicated.
The first of these two questions hardly requires discussion at length, in view of the rule which I conceive should be followed in all interpretation of the Workmen’s Compensation Law.
Labatt, in his monumental compendium on Master and Servant (2d ed. § 64), says: “ The accepted doctrine is that, in cases where the essential object of an agreement is the performance of work, the relation of master and servant will not be predicated, as between the party for whose benefit the work is to be done and the party who is to do the work, unless the former has retained the right to exercise control over the latter in respect to the manner in which the work is to be executed.”
Shearman & Redfield, in the course of their volumes on the Law of Negligence, epitomize the familiar rule as follows:
Similar doctrine has been declared and applied, by courts of this State, in Hopkins v. Empire Engineering Corporation (152 App. Div. 510); Schular v. Hudson River R. R. Co. (88 Barb. 653); Finkelstein v. Balkin (103 N. Y. Supp. 99), and People v. Orange County Road Const. Co. (175 N. Y. 84); though it should be said that none of those decisions involved a state of facts analogous to that at bar. Rheinwald had no employees, made no subcontracts, did the work personally in the first instance, and was engaged personally in “ doing it over" when he was mortally injured. The decisive test of contractual status in an independent calling is often stated, under authorities such as those above quoted, to be whether the person doing* the work is by the contract placed in the position of freedom from the orders and control of his employer, and a position of representing the employer’s will only as to results, and not at all as to
Courts of other States have increasingly taken an enlightened and common-sense view as to what circumstances spell out an independent calling, so as to reheve the employer from statutory or common-law duties of care and precaution (Interstate Coal Co. v. Trivett, 155 Ky. 795; Employers’ Indemnity Co. of Philadelphia v. Kelly Coal Co., 156 id. 74; Waters v. Pioneer Fuel Co., 52 Minn. 474; Chicago, R. I. & Pac. Ry. Co. v. Bennett, 36 Okla. 358); and I have no doubt that the courts of this State would have similar regard for the actualities of .modern industrial organization, in determining whether a manual laborer doing work wholly of the manual laborers’ grade, had by contractual arrangement with his employer absolved the latter, intentionally or unintentionally, from liability for breach of the rules of care and safeguard long made obligatory by law.
The question, however, is not decisive, or hardly material, here. The “independent contractor” was one whose contract
Was Rheinwald an ‘ ‘ employee ” in fairness and in fact within the meaning of the Workmen’s Compensation Law ? Was he of the grade and status of worker, rather than of the grade and status of independent enterpriser ? I am of opinion that he was, and that such a holding is essential to effectuate the purpose of the act, in transmitting the burden of this bereavement from the scanty purse of this workingman’s widow and children to all the patrons of the product or service furnished by his employer. The fact that he was to be paid a lump sum or “by the job ” cannot be recognized as taking him out of the class of “ employees.” The fact that his contract to do the work was in writing is not decisive on that issue, or the fact that by it he made certain undertakings of satisfaction of the employer or replacement if the finished work did not endure an expected length of time. The fact that his employment by the respondent was casual or intermittent cannot deprive him of the status
The carefully considered opinions of the majority of the Industrial Accident Commission of the State of California in its very recent decision as to Mrs. James Mason v. Western Metal Supply Co. (not yet officially reported), are in accord with the views herein set out. The minority opinion in that tribunal is based upon apprehension of consequences against which the Hew York statute plainly guards, through the restriction of the term “employment” to “a trade, business or occupation carried on by the employer for pecuniary gain.” (§ 3, subd. 5.) If it is deemed desirable further to withhold compensation from casual or occasional employees, as is done by the compensation acts of some States, that is a matter for the Legislature, not for court or commission. The expediency of such a limitation could not, even if established, be made a canon of construction of the existing statute or made a factor adverse to fair definition of its fundamental terms.
The question certified is answered in the affirmative; the decision is reversed, and the claim and the proceeding are remanded to the Oommission, with instructions to proceed to the computation and allowance of the claimant’s recovery under the statute.
All concurred, except Lyon, J., dissenting in opinion, in which Howard, J'., concurred.
Dissenting Opinion
I cannot concur in the conclusion reached in the foregoing opinion that Rheinwald was an employee and not an independent contractor. The contract under which the work was done was in writing, and by it Rheinwald agreed to paint signs on stable, office and shed for fifty dollars, and to replace, without charge, any defects which might appear within four years, and that should he use any materials other than those specified in the contract he should not be paid for any work or material; the work to be satisfactory to the owner when cpmpleted.
Rheinwald had done other job painting for the supply com
Appellant’s counsel conceded upon the hearing before the Commission that in case Rheinwald had assistants upon the work “that would take him out of the act absolutely — then he would become an independent contractor.” While, perhaps, such concession is not controlling, nothing whatever in the contract, directly or impliedly, prevented his hiring assistants to work upon the job, as before suggested. It also appears, from the following testimony given upon the hearing before the Commission, that this employment was not considered by the respondents as a subject of insurance: “ Q. [By Commission] Is that included in' the pay-roll submitted to the insurance-company ? A. It was not. Q. They did not pay that in insuring themselves ? A. No.” While, perhaps, what the respondents may have considered is not material upon the question of the liability of the respondents, it answers the suggestion that the insurance company, having been paid for carrying the risk, ought not now in fairness to question its liability.
While I fully concur in very much of what my learned associate has so well and ably said in the prevailing opinion as to the beneficent intent of the Workmen’s Compensation Law, and to the effect that it should be liberally construed to effectuate
Howard, J., concurred.
Question certified answered in the affirmative; decision reversed, and the claim and the proceeding remanded to the Workmen’s Compensation Commission, with instructions to proceed to the computation and allowance of the claimant’s recovery under the statute.