Claim of Hendricks v. Seeman Bros. — 170 A.D. 133

Majority

p. 133

Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Charlotte Hendricks, Claimant, Respondent, for Compensation for Herself and Son for the Death of Richard Hendricks, under the Workmen’s Compensation Law, v. Seeman Brothers, Employer, and Employers’ Liability Assurance Corporation, Ltd., Insurance Carrier, Appellants.

Third Department,

November 15, 1915.

Headnote

Workmen’s Compensation Law — death of helper on delivery truck — attempt to drive off boys riding on rear of vehicle — award affirmed — appeal — finding of Commission as to persons dependent.

One employed as a “helper” on an automobile truck used to deliver groceries, who was killed by a fall when he jumped off the truck in order to drive off boys who were hanging to the rear of the vehicle and who refused to get off, was engaged, at the time, in the operation of the truck, and his death arose out of and in the course of his employment, so that those dependent upon him are entitled to compensation.

A determination of the Workmen’s Compensation Commission as to the persons dependent on the deceased for support is final and not subject to review on appeal, if there is any evidence to support it.

. Appeal by Seeman Brothers and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 30th day of March, 1915, granting compensation to the mother and infant brother of Richard Hendricks who was killed while acting as a helper on an automobile truck owned by Seeman Brothers, wholesale grocers.

Bertrand L. Pettigrew [ Walter L. Glenney of counsel], for the appellants.

Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General of counsel], for the respondents.

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

The deceased was a “helper ” on an automobile truck used as a delivery wagon by his employers who were wholesale grocers. While the vehicle was proceeding along Broadway in New York city some boys were hanging on the rear of the truck. The deceased ordered the boys to get off, but they refused to do so, whereupon he jumped off the truck to drive them away, and in doing so fell upon the pavement, fractured his skull and death resulted.

Under group 41 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), the operation of a truck on a highway is a hazardous employment for which compensation may be awarded in case of an accident which results in injuries. It is conceded by the appellant that the operation of the vehicle in question comes within the language of group 41, but it is contended that the helper on such a truck is not one who operates the truck. If the word “operation” is to be restricted to the actual process of driving the truck, that is, steering it and manipulating the brakes and levers, then, of course, the deceased was not engaged in the operation of this truck. But no such narrow construction should be placed upon the expression “ operation * * * of * * * trucks.” In order to operate this truck used in the wholesale grocery business, the proprietors of the concern found it necessary to employ two men. There were other duties required of these men beyond the mere matter of driving the truck. Presumably goods were to be loaded and unloaded and delivered; and in driving through the streets of the city it was thought necessary by the employers, very likely, to have one person guard and look after the load to prevent articles being lost or stolen, while the other person was driving the truck. All these various labors made up the duties of the men and constituted the operation of the truck. Therefore, it must be held that the deceased was engaged in the operation of the vehicle.

And we think his injuries arose out of and in the course of his employment. (See § 10.) It was undoubtedly a part of his duty to protect the load and drive away meddlesome persons and mischievous boys. Certainly his injury arose “ out of” the fact

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that he was employed on the track and it may be fairly said it arose “in the course of” his duty to keep these troublesome boys from doing damage to his employers’ wagon and goods. In attempting to perform this duty he was fatally injured. That he was impetuous and imprudent, if such be the fact, bears not at all upon the question before us. The English cases cited by the appellants are not sufficiently parallel with the case at bar to serve as a guide to us here.

The Commission has found as a fact that the mother and brother of the deceased were dependent on him for support at the time of his death. We believe the evidence fairly warranted this finding; but, in any event, under section 20 of the act, when there is any evidence, the decision of the Commission is final and this court is not authorized to review. (See, also, Laws of 1915, chap. 167, amdg. said § 20.)

The award-should be affirmed.

Award unanimously affirmed.