214 A.D. 345 | N.Y. App. Div. | 1925
On July 16, 1923, the claimant suffered accidental injuries while repairing highways in the town of Kinderhook. There was a cave-in of the bank from which they were getting gravel. Claimant sustained an injury to the spine, with a probable fracture in the lumbar region with paralysis of both legs. He was at the time employed to haul gravel with a team, to load and unload the wagon and spread the gravel upon the highway. The claimant had been so working from the 15th day of June, 1923, to the date of the accident and was engaged each working day except when it rained.
It is claimed that the claimant was not an employee of the town, but was the employee of one Purcell, Jr. In the employer’s report it is stated that the town of Kinderhook was the employer; that claimant was injured in his regular occupation, being caught in a cave-in in the gravel bank; that his regular occupation was
The objection is separately taken that Purcell was an independent contractor and Kittle his employee. The evidence above stated we believe answers this objection. There are some further facts. The claimant had been working for Purcell, but, when he worked upon the road, he received three dollars and sixty cents per day; when on the farm three dollars. He did no work upon the farm during the days when he was working on the highway. Purcell made no profit from the hiring of Kittle on the road and he paid Kittle nothing therefor. The work on the highway was in no sense farm work, nor was it incidental to farm work. It was work in which Purcell had no interest, direct or indirect, further than in the compensation received for the use of his team. -In connection with the highway work Purcell was in no sense an independent contractor. He simply let his team for hire, to be used in work entirely under the direction and supervision of another.
This is in truth a contest between the claimant on the one part and the carrier, not the town, on the other. The carrier argues that its contract did not cover this claimant; that it had no knowledge that Kittle was in the employ of the town. The policy is not in the record, but the oral testimony not objected to and undisputed answers this contention fully; it shows that the carrier
While the appellant does not raise the question whether, because the superintendent of highways is neither an employee nor the agent of the town, the claimant, hired by the superintendent, is not an employee of the town and while we are not called upon necessarily to discuss it (Shererd v. Village of Warsaw, 209 App. Div. 841), nevertheless our holding in Youngman v. Town of Oneonta (204 id. 96) is thought to require its consideration. In that case Youngman was the town superintendent and we held that he was not an employee and not covered by the Workmen’s Compensation Law. It was not discussed in our opinion whether the policy covered the. superintendent, nor whether the superintendent was, at the time he suffered his injuries, engaged in any hazardous work. We think that case is not controlling here. It is settled in this State that a superintendent of highways is not an employee or agent of his town, but is a public officer, for whose negligent acts the town, in the absence of a statute imposing liability, is not liable. But liability of a town may be imposed and regulated by statute. In our view under the statute the claim of a town superintendent may be distinguished from that of one engaged in the construction and maintenance of highways in the town. In the Workmen’s Compensation Law the Legislature has authorized the prosecution of a claim against the town and its carrier for the accidental injury to one employed by it in a hazardous employment. The town comes within the definition of employer. (Workmen’s Compensation Law, § 2, subd. 3.) “ ‘ Employer,’
But, while we think there has been established a right to compensation, we think there was error in fixing the amount. The findings state that the weekly wage of Alfred Kittle was twenty-two dollars and twenty-seven cents; the evidence shows that it was twenty-one dollars and sixty cents. The Industrial Board has fixed the rate at thirteen dollars and eighty-five cents, which is not two-thirds of twenty-two dollars and twenty-seven cents, or twenty-one dollars and sixty cents. The referee says in his memorandum: “ I am also aware that there may be a serious question
The award should, therefore, be reversed and the claim remitted to take further proof concerning, and make computation of, the average weekly wages of the claimant.
All concur, except H. T. Kellogg, J., who concurs in reversal and votes for dismissal on the authority of Youngman v. Town of Oneonta (204 App. Div. 96).
Award reversed and matter remitted to take further proof concerning, and make computation of, the average weekly wages of the claimant, with costs against the State Industrial Board to abide the event.