Fogarty v. National Biscuit Co. — 221 N.Y. 20

Majority

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In the Matter of the Claim of Mary G. Fogarty against National Biscuit Company et al., Respondents. State Industrial Commission, Appellant.

Headnote

Workmen’s Compensation Law — death, of night watchman employed by corporation engaged in hazardous occupation — when widow of deceased watchman entitled to compensation although there is no evidence showing how death of watchman was caused.

1. A night watchman employed by a corporation engaged in a business designated as “hazardous” under the Workmen’s Compensation Law (Cons. Laws, ch. 67, § 2, group 34) to patrol its buildings at night, is within the law, and where the body of such

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watchman, who had begun his duties for the night, was found, about midnight, at the bottom of the well under the staircase in one of the buildings, his widow is entitled to compensation and the award of the state industrial commission should be sustained.

(Argued April 19, 1917;

decided May 8, 1917.)

2. Under the provisions of the Compensation Law (§§ 21, 68), relating to rules of evidence and presumptions, and the liberal construction which has been placed thereon by this court for the purposes of carrying into effect the intention of the legislature, there was evidence in the record presented to the commission sufficient to justify the findings made by the commission.

Matter of Fogarty v. Nat. Biscuit Co., 175 App. Div. 729 , reversed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1916, reversing- an award of the state industrial commission made under the Workmen’s Com-pensation Law and dismissing the claim of the petitioner.

Egburt E. Woodbury, Attorney-General {E. C. Aiken of counsel), for appellant.

The occupation of the claimant’s intestate was a hazardous occupation specified in the Workmen’s Compensation Act. (Larsen v. Paine Drug Co., 218 N. Y. 252 ; Sorge v. Aldebaran Co., 218 N. Y. 636 ; White v. N. Y. C. R. R. Co., 216 N. Y. 653 ; Walther v. American Paper Co., 98 Atl. Rep. 264 ; Western Metal Supply Co. v. Pillsbury, 156 Pac. Rep. 496 ; Western G. S. P. Co. v. Pillsbury, 159 Pac. Rep. 423 ; Matter of Sundine, 218 Mass. 1 ; Blovelt v. Sawyer, 6 B. W. C. C. 16; Carinduff v. Gilmore, 7 B. W. C. C. 981; North Carolina R. Co. v. Zachary, 232 U. S. 248 .) The death of the claimant’s intestate was the result of an accident arising out of and in the course of his employment. (Cons. Laws, ch. 67, § 21.)

Bertrand L. Pettigrew and Walter L. Glenney for respondents.

The occupation of the claimant’s intestate was not a dangerous one covered by the Workmen’s Com

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pensation Law. (Newman v. Newman, 218 N. Y. 325 ; Bargey v. Massaro Macaroni Co., 218 N. Y. 410 ; Matter of Gleisner v. Gross & Herbener, 170 App. Div. 37 ; Stickles v. Ballston R. S. Co., 171 App. Div. 108 ; Mandle v. Steinhardt & Bro., 173 App. Div. 515 ; Aylesworth v. Phoenix Cheese Co., 170 App. Div. 54 ; Lyon v. Windsor, 159 N. Y. Supp. 162 .) The award is not sustained by testimony establishing that the death of the claimant’s intestate was the result of an accident arising out of and in the course of his employment. (Collins v. B. U. Gas Co., 171 App. Div. 381 .)

The defendant National Biscuit Company is engaged in the bakery business, designated as “hazardous” under the Workmen’s Compensation Law (L. 1914, ch. 41; Cons. Laws, ch. 67), section 2, group 34.

William Fogarty was employed by the biscuit company as a night watchman. As such his principal duty was to patrol the buildings every hour, passing through every department and ring up the clocks, thirty-five in number.

October 2d, 1915, soon after midnight, the body of Mr. Fogarty was found at the bottom of the well under the stairway in one of the buildings of the company. Application was thereafter made by his widow to the industrial commission for compensation under the Workmen’s Compensation Law, and after a hearing had the commission made an award. Upon appeal therefrom by the company and insurance carrier, the Appellate Division, by a divided court, held in effect “The position of night watchman is not a hazardous employment and performing the duties of that position, Fogarty was not exposed' to the dangers of the bakery business which is a haz- \ ardous occupation,” reversed the award and dismissed the claim. This court has given a more liberal construction to the Compensation Law, and held that “where * * * an employee is injured while performing an act

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which is fairly incidental to the prosecution of a business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to he barred from recovery because such act is not a step wholly embraced in the precise and characteristic process or operation which has been made the basis of the group in which employment is claimed.” (Matter of Larsen v. Paine Drug Co., 218 N. Y. 252 , 256.) The principle has been extended to cover injuries to night watchmen. (Matter of White v. N. Y. C. & H. R. R. R. Co., 216 N. Y. 653 ; affirmed in United States Supreme Court. 243 U. S. 188 ; Matter of Sorge v. Aldebaran Company, 218 N. Y. 636 .) The deceased was," therefore, within the Compensation Law.

Counsel for respondent urges that the award made was not sustained by testimony establishing that the death of, Mr. Fogarty was the result of an accident arising out of and in the course of his employment; that there were no eye-witnesses to the accident and the stairs and handrail thereon were intact; that the deceased might have had an attack of vertigo and fallen downstairs or he might have died from heart disease.

In cases before the industrial commission the standard prevailing in negligence actions is not to he applied. As was stated in Matter of Petrie ( 215 N. Y. 335 , 338): “ The Workmen’s Compensation Law was adopted in deference to a widespread belief and demand that compensation should be awarded to workmen who were injured and disabled temporarily or permanently in the course of their employment, even though sometimes the accident might occur under such circumstances as would not permit a recovery in an ordinary action at law. The underlying thought was that such a system of compensation would be in the interest of the general welfare by preventing a workman from being deprived of means of support as the result of an injury received in the course of his employment. The statute was the expression of

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what was regarded by the legislature as a wise public policy concerning injured employees.”

In connection with the language above quoted certain provisions of the Compensation Law are material.

Section 68 provides: “Technical rules of evidence or procedure not required. — The commission or a commissioner or deputy commissioner in making an investigation or inquiry or conducting a hearing shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to ascertain the substantial rights of the parties.”

Section 21 provides: “Presumptions.—In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary: 1. That the claim comes within the provisions of this chapter; 2. That sufficient notice thereof was given; 3. That the injury was not occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another; 4. That the injury did not result solely from the intoxication of the injured employee while on duty. ”

In the Sorge case, as in .the case at bar, there were no • eye witnesses to the accident. The body of Mr. Fogarty was found at the bottom of a well under a stairway. Sorge was found unconscious in the cellar of a building, or, as his declarations testified to indicated, he had fallen upon a sidewalk.

The record in the Sorge case was made up of the formal proof of death by the widow, the first report of injury by the employer, proof of death by the employer and the form entitled “Proof of death by Eye-witness” together with the coroner’s inquisition, and some evidence attached to the same, and the evidence of a hospital physician, all of which tended clearly to show more or less speculation as to the manner in which Sorge was injured and some

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conflict as to the cause of his death, together with declarations made by him in his conscious moments as to the manner in which he fell. In the case at bar the record consists of the same form of notices by the employer, the first notice, the second notice, the verified report made by the manager of the company, the evidence of the superintendent of the company. The claimant appeared before the commission and was inquired of with reference to the nature of the work performed by her husband, etc. She also stated what she had heard of the' manner in which her husband was injured. The proofs in the case under consideration were fully as favorable to the claimant as the proofs in the Gorge case, which was affirmed by this.court. The hearsay statement of the claimant was not broader than a like statement in the Sofge case, and is not affected by the case of Matter of Carroll v. Knickerbocker Ice Co. ( 218 N. Y. 435 ), especially as no substantial evidence was offered in this case to overcomé the presumption of fact that the death of Mr. Fogarty was the result of an accident.

It is unnecessary to call attention to the liberal rule prevailing in negligence actions where a recovery is sought when death has resulted and eye-witnesses to the accident cannot be produced. Under the liberal construction which has been placed upon the Compensation Law by this court for the purpose of carrying into effect the intention of the legislature in the enactment of said law, we conclude that there -ivas evidence in the record presented to the commission sufficient to justify the findings made by the commission.

The order of the Appellate Division reversing the award made and dismissing the claim should be reversed, with costs to the state industrial commission in the Appellate Division and this court, and award affirmed.

Chase, Cardozo, Pound and Andrews, JJ., concur; Hiscock, Ch. J., and McLaughlin, J., dissent.

Order reversed, etc.

Cases cited

Claim of Larsen v. Paine Drug Co. 218 N. Y. 252 N.Y. 1916-05-12 at 256 p. 21, p. 23
Claim of Sorge v. Aldebaran Co. 218 N. Y. 636 N.Y. 1916-05-02 p. 21, p. 23
Claim of Yume v. Knickerbocker Portland Cement Co. 216 N. Y. 653 N.Y. 1915-10-19 p. 21, p. 23
North Carolina Railroad v. Zachary 232 U. S. 248 SCOTUS 1914-02-02 p. 21
Claim of Newman v. Newman 218 N. Y. 325 N.Y. 1916-06-06 p. 22
Claim of Bargey v. Massaro Macaroni Co. 218 N. Y. 410 N.Y. 1916-06-16 p. 22
Mandle v. A. Steinhardt & Bro., Inc. 173 App. Div. 515 N.Y. App. Div. 1916-06-30 p. 22
New York Central Railroad Co. v. White 243 U. S. 188 SCOTUS 1917-03-06 p. 23
In re the Claims of Petrie 215 N. Y. 335 N.Y. 1915-06-15 at 338 p. 23
Claim of Carroll v. Knickerbocker Ice Co. 218 N. Y. 435 N.Y. 1916-07-11 p. 25