Hyperlawhypertext legal database Miller v. J. M. Bell Co. 234 A.D. 148

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Miller v. J. M. Bell Co.

234 A.D. 148 Court Third Department, Decision date 1931-12-30 English

Contents

Majority

p. 148
In the Matter of the Claim of the Estate of James Miller, Deceased, Respondent, against J. M. Bell Company and Another, Appellants. State Industrial Board, Respondent.
Third Department,
December 30, 1931.
II. Dudley Bierau, for the appellants.
John J. Bennett, Jr., Attorney-General [Joseph A. McLaughlin, Assistant Attorney-General, and Roy Wiedersum of counsel], for the respondent State Industrial Board.
II. C. Teepel, for the claimant, respondent.

The Industrial Board has found that the decedent Miller “ was engaged in the regular course of his employment and while working for his employer at premises located at Harris-ville, State of New York, the employer did order his employees to immediately proceed to the freight railway station, and while the deceased herein, with his coemployees, was dressing for the purpose of obeying the employer’s instructions and while the deceased was stooping over putting on his overshoes another coemployee standing nearby was putting on his overcoat and a knife, used by the coemployee in the regular course of his employment, which was in the pocket of the coemployee, accidentally struck the deceased causing him to suffer from a stab wound * * * ” from which he died. The evidence does not sustain the finding. It does indicate that the employer gave the order as found, and that the decedent and other coemployees did go to the freight railway station, which was located near to the place where they had eaten, but without wearing either overcoats or overshoes, and that they started from the station to go to their usual place of employment

p. 149
stopping only at the boarding place to obtain the overcoats and overshoes, and that the accident happened upon this return visit and after the call at the railway station.

The matter should be remitted to the Board to make such finding as they may be advised upon the facts as established by the evidence.

All concur.

Award reversed and claim remitted, with costs against the State Industrial Board to abide the event.