Claim of Wilson v. C. Dorflinger & Sons — 170 A.D. 119

Majority

p. 119

Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Leona Wilson, Claimant, Respondent, for Compensation to Herself for the Death of Her Husband, William H. Wilson, under the Workmen’s Compensation Law, v. C. Dorflinger & Sons, Employers, and Knickerbocker Mutual Liability Insurance Company of New York, Insurance Carrier, Appellants.

Third Department,

November 10, 1915.

Headnote

Workmen’s Compensation Law—business of selling glassware — “ vehicle ” defined — freight elevator is vehicle.

An employer, engaged in selling, but not in manufacturing, glassware, does not come within group 30 of section 3 of the Workmen’s Compensation Law.

p. 120

But a freight elevator used by such employer in his business is a “ vehicle,” within the meaning of group 41, and hence, where an employee who is required to use the elevator accidentally fell down the shaft and was killed, those dependent upon him are entitled to an award under the statute.

It seems, that groups 1 and 41 embrace the operation of every kind of vehicle using steam, electricity or other motive power.

Appeal by C. Dorflinger & Sons and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 20th day of February, 1915.

Arthur Butler Graham [Archibald Ewing Stevenson and William H. Woolley with him on the brief], for the appellants.

Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondent Workmen’s Compensation Commission.

Jeremiah F. Connor, counsel for the Workmen’s Compensation Commission.

Unquestionably the deceased met his death while in the employment. A freight elevator was used sometimes by the employees in going from floor to floor, especially when carrying merchandise or freight, and the deceased frequently used it. The Commission has found that he accidentally fell down the shaft and was killed. He was found at the bottom of the shaft. It also finds that he was employed as a porter and shipping clerk, and that one of his incidental duties was to operate the elevator when he had occasion to use it. It also finds that the employers were engaged in the business of selling glassware.

The employers’ first report describes their business as a glass selling agency. The employers’ affidavit, attached to the proof of loss, in answer to the question “What is the kind and character of the business conducted ?” answers “Mfr’s glassware.” But the finding of the Commission that the employers were engaged in the business of selling glassware, in connection with the evidence, establishes conclusively that they were not manufacturers of glass but sellers of glass only, and, therefore,

p. 121

the case does not come within group 20 of section 2 of the Workmen’s Compensation Law. The employee was not engaged in a hazardous business within the Workmen’s Compensation Law unless the business falls within group 41 of that section, which embraces “The operation, otherwise than on tracks, on streets, highways, or elsewhere of cars, trucks, wagons or other vehicles, and rollers and engines, propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses or mules.” There was no elevatorman, but the elevator was used in the business by the different employees from time to time. The serious question is whether it was a “vehicle” within the meaning of group 41. Clearly it was á means of carrying persons and things, and falls fairly within the definition of a vehicle. There seems to be no good reason why cars, trucks and wagons, propelled in the manner mentioned in that group, should be included and an elevator excluded. They are all vehicles for the carrying of persons and things. It cannot be urged that an elevator is excepted by the expression “otherwise than on tracks.” There are guides upon each side of the elevator to keep it plumb and to facilitate its operation, but it cannot be said to be operated upon tracks within the meaning of that group of said section. If such a construction were to be given, the reasoning would force it into group 1 which includes the operation of railways operated by steam, electric or other motive power, street railways and incline railways. The elevator is operated by the power mentioned in group 41, and a liberal construction of the statute brings it within that group. Groups 1 and 41 seem to embrace the operation of every kind of a vehicle by steam, electric or other motive power. The award should, therefore, be affirmed.

Award unanimously affirmed.