198 A.D. 427 | N.Y. App. Div. | 1921
On December 13, 1920, the last hearing was had before the Commission, when it announced that it would ask the claimant to appear before Dr. Grant for examination, and the case was continued. Dr. Grant made a report to the Commission January 12, 1921, and it is evident that his report forms the basis of the determination that there was a loss of the use of one-third of the hand. Apparently the report was not submitted at any hearing of which the appellants were notified. Dr. Grant did not appear for examination, and there was no opportunity to cross-examine him. The award, therefore, stands on the doctor’s unsworn statement, which was received outside of any regular hearing. The law contemplates that the employer and the insurance carrier shall be notified of the hearing and participate therein, and the receipt of this report, under the circumstances, was prejudicial to the appellants and calls for a reversal. (Jack v. Morrow Mfg. Co., 194 App. Div. 565.)
The difficult question is whether the claim should be dismissed or the matter sent back to the Commission for a rehearing. The contention of the appellants is that the injury did not arise in the course of the employment, and if this contention is sustained the claim should be dismissed. If, however, there is a chance that the claim can be sustained, the claimant should have an opportunity to fully present his case to the Commission.
Jewett & Company’s plant was on the- Military road, some distance from the city. The trolley cars ran by the plant, but did not give satisfactory service, and the employer deemed it for its interest to furnish and operate its own bus between the city and the works. The bus was furnished solely for the use of the employees and was not a public, conveyance. The employer, however, charged each employee using it the same fare he would pay if he used the trolley car. The bus called at various places in the city and picked up the employees who presented themselves there. The claimant was near the garage where the bus was kept, and in the early morning went to the garage and took a place upon the bus. The bus was a little late in starting, on account of some fault with the engine, and as the bus proceeded upon its way, it was found
The claimant also relies upon Driscoll v. Gillen & Sons Lighterage, Inc. (226 N. Y. 568); Krawczyk v. MacNamara (Id. 567) and Sztorc v. Stansbury, Inc. (189 App. Div. 388). If the claimant was in the course of his employment while riding in the bus, the fact that the bus, while being operated by his employer, became unable to run and required services at the garage, did not deprive him at the garage of his position as an employee. (Matter of Moore v. Lehigh Valley R. R. Co., 217 N. Y. 627.) The bus arrived at the plantabout nine o’clock a. m. Claimant was paid for the time he was in the
Cochrane, H. T. Kellogg, Kilby and Van Kirk, JJ., concur.
Award reversed and matter remitted to the State Industrial Board for further consideration.