295 N.Y. 443 | NY | 1946
For seven months prior to December 24, 1942, John Siguin, seventeen years old, had been employed as a waiter in appellant-employer's restaurant in Massena, New York. On that day, he was accidentally killed while working in the restaurant.
The primary question posed is whether Siguin's injury and consequent death arose "out of and in the course of the employment" within the meaning of the Workmen's Compensation Law. The Industrial Board — now the Workmen's Compensation Board — held that it did, and the Appellate Division unanimously affirmed.
During the time of Siguin's employment, it had been more or less customary and usual — and this was known to appellant-employer — that whenever two employees passed, each would "make a pass" — take a friendly tap or blow — at the other.
Upon the day in question, December 24, 1942, Siguin came into the kitchen, conversed in amicable fashion with Demers — another seventeen-year-old boy employed at the restaurant — and then, on leaving, made a pass at Demers. As Demers turned to avoid the blow, a knife which he held in his other hand accidentally struck Siguin in the left side, penetrated his heart and caused his death.
In the light of the record, it was but natural to expect appellant's employees to deport themselves — as boys and young men full of life and health — as they did. Indulgence in a moment's diversion — a moment spent making a friendly pass at a fellow employee — had long been part and parcel, an incident, of the employment. The risks thereby engendered were risks of the employment. There can no longer be any question — in this State, at least — that injuries resulting therefrom arise "out of * * * the employment" within the meaning of the Workmen's Compensation Law. (Matter of Levy v. World-Telegram Corp.,
* * * * * * *
"* * * The risks of injury incurred in the crowded contacts of the factory through the acts of fellow-workmen, are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day. * * * The test of liability is the relation of the service to the injury, of the employment to the risk."
Nor can there be any doubt that the injury arose "in the course of the employment." The long-continuing custom and practice — to which we have called attention — strongly indicating as it does that there was no abandonment, serves to distinguish the present case from those wherein the instigator of a fight or the initiator of horseplay was held not entitled to compensation. (Matter of Frost v. Franklin Manufacturing Co.,
Since Siguin's fatal injury arose "out of and in the course of" his employment, the determinations below upon this question were correct and the award against appellant-carrier should be affirmed. *448
The second question — raised only by appellant-employer, since he alone is affected — relates to the propriety of the award against him individually for the benefit of special funds under the Workmen's Compensation Law.
That award was made pursuant to section
Since Siguin left no dependents, each of the two awards — both that against appellant-employer or appellant-carrier and that against appellant-employer individually — included specified sums payable to the "Special Fund" under section 15, subdivision 8; to the "Vocational Rehabilitation Fund" under section 15, subdivision 9; and to the "Fund for Reopened Cases" under section 25-a of the law. These statutes provide, in effect, that "the employer, or if insured, his insurance carrier, shall pay into" the specified fund "for every case of injury causing death in which there are no persons entitled to compensation" a specified sum of money.
In our view, the award against appellant-employer individually cannot stand because payments to the special funds do not constitute "compensation and death benefits" within the meaning of section 14-a. Subdivision 6 of section 2 defines "compensation" as "the money allowance payable to an employee or to his dependents", and section 16 states that "If the injury causes death, the compensation shall be known as a deathbenefit". (Emphasis supplied.)
Although we have not previously passed upon the question whether payments to the statutory special funds constitute "compensation and death benefits" under section 14-a, the answer is clearly pointed by the decision in Commissioner of Taxation
v. Riger Bldg. Corp. (
Additional support for our conclusion may be found in the very nature of the "double compensation and death benefits" payable under section 14-a. It has been repeatedly held that this increased payment is not punitive in character. (Matter ofSackolwitz v. Hamburg Co.,
In short, then, none of the doubled payments except the $150 item for funeral expenses may be regarded as "compensation" or "death benefits" within the meaning of the statute. Accordingly, the Industrial Board and the Appellate Division erred in directing appellant-employer to pay to the special funds the amounts aggregating $2,000; as already indicated, however, the initial award made against appellant-employer or appellant-carrier is in all respects proper.
The order of the Appellate Division and the award of the Board should be modified by eliminating from the award the provision that appellant-employer Adrian McCarthy individually pay to the designated special funds sums aggregating $2,000, and, as so modified, affirmed, without costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND and THACHER, JJ., concur; DYE, J., taking no part.
Ordered accordingly. *450