Claim of Beckmann v. J. W. Oelerich & Son , 160 N.Y.S. 791 ( 1916 )

Lyon, J.:

This is an appeal from an award made by the State Industrial Commission. The conclusions of fact made by the Commission state that the claimant was employed as a foreman by J. W. Oelerich & Son, Inc., a corporation having an office in the city of New York, engaged in the business of grocers’ sundries. and wholesale groceries, and in connection therewith in manufacturing pickles and syrups, and also of bottling various grocery supplies, such as vinegar, olives, cottonseed oil, catsup and peroxide; that while working for his employer at his employer’s plant putting wires on bottles which contained peroxide, which wires were to be fastened over the corks by means of a hand machine, the bottle which the claimant was handling broke and a piece of glass flew into his right eye, causing a rupture of the eye ball; that in respect to the peroxide, his employer bought the same in bulk and had it bottled and labeled in the name of-the employer for the purpose of sale; that the duties of the claimant also required him to take part in the manufacture of pickles; that the average weekly wage of the claimant was thirty-six dollars and fifty-four cents.

Following the accident the usual notice of injury, claim for compensation, employer’s and attending physician’s reports of injury were made, and the claim came on for hearing before the State Compensation Commission, and on nine occasions, commencing November 2, 1914, and ending May 17, 1915, awards were made by that Commission, and on July 26, 1915, such an award was made by its successor, the State Industrial Commission. The parties interested, as well as both Commissions, apparently acted upon the belief that the injury was not serious and only temporary, and without having the question of the liability of the employer definitely adjudicated, the parties agreed upon such awards, and the Commissions sanctioned the agreement, except as to the award of July twenty-sixth for four weeks’ allowance, to which the carrier objected. None of these awards so made appear in the record upon appeal, and it is our understanding that they were informal, and were not entered in the office of either Commission. Each of the awards was made at the raté of fifteen dollars per week, and together covered a period of forty-four weeks, and each, with the exception of the award of July twenty-sixth, was paid by the insurance carrier.

On the 19th day of August, 1915, the claim was brought to a hearing before a deputy commissioner, apparently under the objection made by the insurance carrier on July twenty-sixth. At this hearing the statement was made by the carrier that it had allowed the claim to drift along, but as now the carrier was apparently paying for the loss of the use of the eye, it wanted the nature of the employment gone into a little more thoroughly, and that there had always been an open question at its home office whether the employment in which the claimant was engaged was covered by the policy. At this hearing the testimony of the claimant alone was given. On August twenty-fifth an executive hearing of the Commission was held at which the claimant was present and the carrier was represented by counsel. On August twenty-seventh the Commission rendered its decision to the effect that the claimant’s employment at the time of the accident was not covered by the Workmen’s Compensation Law and that the decision of the Commission was to close the case on the award as made July twenty-sixth. A resolution was then passed that further award be denied on the ground that the employment did not come within the act. Notice of this decision was given the insurance carrier and also the claimant on or about August 30, 1915. No appeal was ever taken from the decision.

On October 6, 1915, upon application of the claimant the Commission opened the case, although the insurance carrier questioned the claimant’s right to a rehearing upon the ground that the claimant’s remedy was by appeal within thirty days after service upon him of a copy of the award, and that, not having taken such appeal, the decision of the Commission was final. A rehearing was ordered and had, further evidence taken, and an award made for the period of ten weeks from July 26 to October 4, 1915, at the rate of fifteen dollars per week, and the case continued for further hearing. From such award this appeal has been taken.

The insurance carrier bases its right to a reversal of the award upon three grounds, first, that the claimant’s only remedy was by appeal under section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), and that the Commission had no right after the time to appeal had expired to open the case and make an award; second, that the claimant, being the vice-president of the corporation, was not an employee within the meaning of the act, and, third, that the claimant’s injury did not arise out of and in the course of a hazardous employment.

The pertinent portion of section 23 is as follows: “ § 23. Appeals from the Commission. 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.” This provision is susceptible of but a single construction as applied to an appeal; but, as applied to a rehearing by the Commission, the section must be read in connection with sections 22 and 74, which provide as follows: “ § 22. Modification of award. Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, the Commission may at any time review any award, and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded * * *.)" "§ 74. Jurisdiction of Commission to be continuing. The power and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modification or change with respect to former findings or orders relating thereto, as in its opinion may be just.”

The general purpose of the Workmen’s Compensation Law, and the construction to be given its provisions, have been the subject of consideration in several opinions both by the Court of Appeals and by this court, notably in the two cases: Matter of Post v. Burger & Gohlke (216 N. Y. 544) and Matter of Rheinwald v. Builders’ Brick & Supply Co. (168 App. Div. 425). These expressions of the courts that a liberal construction is to be given" the act in view of its humane purposes are applicable in the case at bar to the provisions of sections 22 and 74. Upon neither of the two hearings which preceded the decision of August twenty-seventh, denying further award, was the claimant represented by counsel, and upon the first hearing the testimony consisted wholly of answers to questions framed by the counsel for the insurance carrier and did not develop material matters relating to claimant’s employment, which were very probably unknown to the counsel. Apparently, upon the application for a rehearing, facts were brought to the attention of the Commission indicating that its decision had been made without full knowledge of the facts, making it questionable in the judgment of the Commissioners whether the claim had been justly disposed of. Possessed of this uncertainty the Commission was not only within its rights, but in the discharge of a positive duty when it granted a rehearing, and when later confronted by additional evidence, and believing its former decision to be incorrect, it promptly corrected it. The right exercised by the Commission was the right often exercised by courts of record under like circumstances even after the determination of the case on appeal. Furthermore, on reopening the claim, it was practically consented by the counsel for the insurance carrier that the claim be heard upon its merits, and that if the claim should prove to be a just one the claimant should be awarded compensation, and, if not, compensation should be denied. We should, therefore, treat the claim as having been heard upon the merits without objection.

As to the claim that the claimant was not an employee within the meaning of the act. The claimant spoke of his compensation for services as salary. He was the owner of 7 of the 100 shares of stock of the corporation. There is no claim that the payments received by him were dividends upon his stock. The Commission found that the weekly payment made -him was his weekly wage. Its finding was fully justified by the evidence. While he was vice-president of the corporation his employment was doubtless through the board of directors, of whom he may or may not have been one. Although he was the general foreman, he worked in the various industries of the corporation the same as other'workmen, and was doing the work of an ordinary employee at the time he was injured. His being vice-president and a stockholder in no way affected his status as an employee. (Connor Workmen’s Compensation Law, 31, 96; Aken v. Barnet & Aufsesser Knitting Co., 118 App. Div. 463; affd., 192 N. Y. 554.)

As to the third claim of the appellant, that the injury sustained by the claimant did not arise out of or in the course of his employment. The Commission held that the employment of claimant fell within group 33 of section 2, which was as follows: “ Canning or preparation of fruit, vegetables, fish or food stuffs; pickle factories and sugar refineries.” It appears from the remarks of the members of the Commission, preceding making the award of October sixth, that the' Commission concluded that the employer should be held to have been operating a canning factory, and, hence, that the claimant’s employment fell within group 33 of section 2. However, the finding of the Commission states that the employer corporation was engaged in the business of “grocers’ sundries and wholesale groceries.” This was also the statement in the employer’s first report of injury. The policy stated that the employer’s business was “Wholesale dealers in grocers’ specialties.” The employer cannot fairly be considered to have been operating a canning factory. It appears that claimant’s work covered fully seventeen lines of employment, seven of which are mentioned in the foregoing conclusions of fact, in no one of which its employees were engaged continuously, but in each of which work was done from time to time, doubtless as was necessary to keep the stock up, and as the demands of the trade required. Of these seventeen employments apparently not more than three or four could be classed, as hazardous employments under the Workmen’s Compensation Law as it existed at the time the claimant was injured.

The evidence shows that the claimant’s injury resulted from the bursting of a bottle containing peroxide which had been filled, corked and left standing on the floor some days before, and as the claimant placed it upon a bench for the purpose, by the use of a hand machine, of placing wires over the corks to prevent their being forced out by the gas, the gas which had accumulated in one of the bottles exploded. Prior to classifying ‘ ‘ bottling ” as a hazardous employment under group 27 of section 2 by the amendment of 1916 (Chap. 622), drawing from barrels, peroxide, which was described as a liquid antiseptic, a disinfectant, and as commonly sold by grocers for cleaning purposes, and placing it in bottles, was not embraced in the hazardous employments, nor was it incidental to a hazardous employment. Neither was the business of “grocers’ sundries and wholesale groceries,” classified as a hazardous employment. The question, therefore, presented by this branch of the appeal is whether an employee working in August, 1914, in an industry, not in itself hazardous, in which there were several lines of employment, some of which were hazardous, and some non-hazardous, who was injured while working in one of the non-hazardous employments which was in no way incident to a hazardous employment, was entitled to compensation. The word " employee ” as defined in section 3, subdivision 4 (prior to the amendment of 1916), " means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same * * Section 2 of the Workmen’s Compensation Law awards compensation to employees " engaged in the following hazardous employments; ” and this right of compensation concededly extended to an employment which was an incident to a hazardous employment. That the injury must have arisen out of a hazardous employment, or, in other words, have been sustained while the employee was engaged in a hazardous employment or in an employment incident to a hazardous employment in order to justify making an award has been held in several cases, among others: Matter of Newman v. Newman (218 N. Y. 325; 169 App. Div. 745); Matter of Mihm v. Hussey (Id. 742); Matter of Gleisner v. Gross & Herbener (170 id. 37); Matter of Sickles v. Ballston Refrigerating Storage Co. (171 id. 108).

The decision of the Commission should be reversed, and the award vacated.

All concurred.

Decision of the Commission reversed and award vacated.