Miller v. Taylor — 159 N.Y.S. 999

Majority

p. 999

(173 App. Div. 865)

MILLER et al. v. TAYLOR.

(Supreme Court, Appellate Division, Third Department.

June 30, 1916.)

Headnote

Master and Servant @=^375(1)—Workmen’s Compensation Law—Injury “Arising Out of Employment.”

The injuries to an express company’s employé by being struck by an automobile, while crossing a street on his way Irom the motor express

tg^For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

p. 1000

truck he drove to deliver an express package, arose out of his employment within the Workmen’s Compensation Law (Consol. Laws, c. 67).

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. @=375(1).]

Appeal from State Industrial Commission.

Proceedings under the Workmen’s Compensation Law by Priscilla A. Miller and her minor child, and Catherine R. Miller, to obtain compensation for the death of Clarence R. Miller, opposed by George A. Taylor, president of the American Express Company, employer and self-insurer. Compensation was awarded, and the employer appeals. Award affirmed.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.

Rogers, Locke & Babcock, of Buffalo (Evan Hollister, of Buffalo, of counsel), for appellant.

Egburt E. Woodbury, Atty. Gen., and Robert W. Bonynge, of New York City, counsel to State Industrial Commission (E. C. Aiken, Asst. Atty. Gen., of counsel), for respondents.

The single question involved upon this appeal is whether the accidental injury causing the death of deceased arose out of his employment. The American Express Company was engaged in a general express business. The deceased was the driver of one of its motor trucks at Buffalo, N. Y. Prior tq that, he was the driver of one of its wagons. On December 2, 1915, while crossing a street on his way from his truck to deliver an express package, he was struck by an automobile and received injuries which caused his death two days later.

Concededly the injuries were received by the deceased in the course of his employment. The defendant contends, however, that the injuries did not arise out of the employment, and cites in its brief, as justifying such defense, the cases of Newman v. Newman, 113 N. E. 332 (decided June, 1916), Moore v. Lehigh Valley Railroad Co., 169 App. Div. 177 , 154 N. Y. Supp. 620 , affirmed 111 N. E. 1092 , and Costello v. Taylor, as President of the American Express Co., 217 N. Y. 179 , 111 N. E. 755 .

In the Newman Case the deceased had put up' his horse and wagon several hours before receiving the injury, and was making the delivery on foot, entirely independently of the use of his horse and wagon, and not as an incident of the operation on the street of a vehicle, as in the case at bar, and hence was not engaged in one of the hazardous employments specified in the Workmen’s Compensation Law. The Moore Case is cited simply as authority for the undisputed proposition that the injuries must have arisen both out of and in the course of the employment. The Costello Case is sought to be distinguished from the case at bar, and to be considered an authority for reversal, as holding that it is the business of the care and operation of the horse and wagon which is considered hazardous, and not the employment of a deliveryman especially when he is delivering on foot. While the

p. 1001

question at issue here was not involved in that case, that decision expressly holds that the business of operating vehicles was intended to be covered by the act. The act of deceased in leaving his vehicle and delivering the express packages on foot was a necessary incident of the operation of the vehicle as an express delivery car, and so doing was within the scope of his employment. In the recent case of Dale v. Saunders Bros., 218 N. Y. 59 , 112 N. E. 571 , Judge Pound, in citing the Costello Case said:

“The duties of a teamster properly Include the loading of his wagon, and are not limited to the driving of the team.”

I think the award was clearly right, and should be affirmed. All concur.

Cases cited

Claim of Costello v. Taylor 217 N. Y. 179 N.Y. 1916-02-01 p. 1000
Claim of Dale v. Saunders Bros. 218 N. Y. 59 N.Y. 1916-04-25 at 112 p. 1001