Post v. Burger & Gohlke

Decision Date11 January 1916
Citation216 N.Y. 544,111 N.E. 351
CourtNew York Court of Appeals Court of Appeals
PartiesPOST, v. BURGER & GOHLKE, et al.

OPINION TEXT STARTS HERE

Appeal from Supreme Court, appellate Division, Third Department.

Claim by William Post for compensation under the Workmen's Compensation Law against Burger & Gohlke, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. From an order of the Appellate Division confirming an award of the Workmen's Compensation Commission (153 N.Y.Supp. 505), defendants appeal. Affirmed.

See, also, 154 N.Y.Supp. 1140.

Bertrand L. Pettigrew, of New York City, for appellants.

Egburt E. Woodbury, Atty. Gen. (E. Clarence Aiken, Asst. Atty. Gen., of counsel), for respondent.

CHASE.

Burger & Gohlke, a corporation, is engaged in sheet metal work at Brooklyn, in this state, and for more than two years employed William Post, a resident of Brooklyn, as a sheet metal worker. The contract of employment was made in the state of New York.

On September 1, 1914, he was sent by his employer to perform certain sheet metal work on a grain elevator in Jersey City, state of New Jersey, and while engaged in his work on that day a sheet of metal slipped from his hands and he received an injury to his wrist, compensation for which has been awarded.

Burger & Gohlke secured compensation for injuries to its employés, as provided by section 50 of the Workmen's Compensation Law, by insuring with the Employers' Liability Assurance Corporation, Limited.

An appeal to the Appellate Division was taken by the employer and the insurance carrier from the award made by the state Workmen's Compensation Commission, and the award was confirmed by that court. The only question involved on this appeal is whether the claimant, having received his injuries in the state of New Jersey and outside the boundaries of the state of New York, is entitled to compensation under the Workmen's Compensation Law.

[1][2] If the claimant is only entitled to recover compensation for his injuries as for a tort, the general rule that an act of the Legislature, unless otherwise shown, is not intended to apply outside of the boundaries of the state is applicable, and the award to him by the commission was erroneous. Whitford v. Panama R.R. Co., 23 N.Y. 465; Goodwin v. Young, 34 Hun, 252; McDonald v. Mallory, 77 N.Y. 546, 33 Am.Rep. 664; Story's Conflict of Laws, §§ 18-20; Johnson v. Phoenix Bridge Co., 197 N.Y. 316, 90 N.E. 953;Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 448, 9 Sup.Ct. 469, 32 L.Ed. 788;Gould's Case, 215 Mass. 480, 102 N.E. 693, Ann.Cas.1914D, 372.

If it was the intention of the Legislature to require that in every contract of employment in the cases provided by the act, there should be included and read into the contract the provisions of the act and that such provisions should be applicable in every case of injury wherever the employé is engaged in the employment, then the parties are bound thereby without reference to the place where the injury occurs. Pacific Mail S.S. Co. v. Joliffe, 2 Wall. 450, 17 L.Ed. 805;Dyke v. Erie R. Co., 45 N.Y. 113, 6 Am.Rep. 43;Strauss v. Union Central Life Ins. Co., 170 N.Y. 349, 63 N.E. 347;Taylor v. N.Y. Life Ins. Co., 209 N.Y. 29, 102 N.E. 524;Pache v. Oppenheim, 93 App.Div. 221, 225, 87 N.Y.Supp. 704;People ex rel. Dusenbury v. Speir, 77 N.Y. 144;Liverpool & Great West. Steam Co. v. Phenix Ins. Co., supra;Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372;American Radiator Co. v. Rogge, 86 N.J.Law, 436, 92 Atl. 85, 94 Atl. 85;Id. (N.J.) 93 Atl. 1083; Deeny v. Wright & Cobb Lighterage Co., 36 N.J.Law J. 121; Rounsaville v. Central R.R. Co. (N.J.) 94 Atl. 392;Davidheiser v. Hay Foundry & Iron Works, 37 N.J.Law J. 119; Perlsburg v. Muller, 35 N.J.Law J. 202; Matter of Schmidt, Bulletin of the Industrial Comm. of Ohio, vol. 1, No. 7, p. 21; Schweitzer v. Hamburg Am. Line, 149 App.Div. 900, 134 N.Y.Supp. 812;Id., 78 Misc.Rep. 448, 138 N.Y.Supp. 944;Albanese v. Stewart, 78 Misc. 581, 138 N.Y.Supp. 942;Wasilewski v. Warner Sugar Refining Co., 87 Misc. 156, 149 N.Y.Supp. 1035. See opinions written in this case, Valentine v. Smith-Angevine Co., 2 N.Y.State Dept.Rep. 461, 168 App.Div. 403, 153 N.Y.Supp. 505.

It is well settled that the Legislature has the power to compel a contract between employer and employé that is extraterritorial in effect.

In determining the intention of the Legislature in enacting the Workmen's Compensation Law of this state, there are two important provisions of the act that must constantly be borne in mind as they affect and characterize all the other provisions of the act: (1) In the absence of substantial evidence to the contrary it must be presumed that the claim comes within the provisions of the act. Workmen's Compensation Law (Cons.Laws, c. 67) § 21.(2) The liability of the employer for compensation includes every accidental personal injury sustained by the employé “arising out of and in the course of his employment, without regard to fault as a cause of such injury.” Section 10.

The act does not purport to provide compensation for a wrong. The compensation, however, is given without reservation and wholly regardless of any question of wrongdoing of any kind. The act provides for compensation to employés which shall be payable generally for injuries sustained or death incurred in certain specified hazardous employments. Section 2. An employé, as defined by the statute, “means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer. * * * ” Section 3, subd. 4. Every employer subject to the provisions of the act shall pay or provide as required by the act for the “disability or death of his employé resulting from an accidental personal injury sustained by the employé arising out of and in the course of his employment. * * * ” Section 10. The language of the section from which the quotation is made is general and compulsory. It is further provided:

“The liability prescribed by the last preceding section [section 10] shall be exclusive, except that if an employer fail to secure the payment of compensation for his injured employés and their dependents as provided in section fifty of this chapter, an injured employé, or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury. * * * ” Section 11.

In case such an action is maintained in the courts for damages, it is not necessary to plead or prove freedom from contributory negligence, nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employé assumed the risk of his employment, or that the injury was due to the contributory negligence of the employé. It is provided that:

“The employer shall promptly provide for an injured employé such medical, surgical or other attendance or treatment, nurse and hospital service, medicines, crutches and apparatus as may be required or be requested by the employé, during sixty days after the injury.” Section 13.

An injured employé is required, if requested by the commission, to submit himself to medical examination at a time and from time to time at a place reasonably convenient for the employé. Section 19. If a workman entitled to compensation under the act is injured or killed by the negligence or wrong of another on in the same employ, an option is given to take compensation under this act or pursue the remedy against such other. If compensation is taken under this act, the cause of action against such other must be assigned to the state for the purposes prescribed. Section 29. An agreement for contribution by the employé toward the premiums paid or to be paid by the employer is void. Section 31. No agreement by an employé to waive his right to compensation is valid. Section 32. Claims for compensation shall not be assigned, released, or commuted, and are exempt from all claims of creditors. Section 33. An employer is required to secure compensation to his employés in the way prescribed by the statute. Section 50. If he fail to comply with said section 50 he “shall be liable to a penalty during which such failure continues of an amount equal to the pro rata premium which would have been payable for insurance in the state fund for such period of noncompliance to be recovered in an action brought by the commission.” Section 50. It is also provided that failure to secure the payment of compensation shall have the effect of enabling the injured employé or his dependents to maintain an action for damages in the courts. Section 52. An employer securing payment of compensation by contributing premiums to the said fund is thereby relieved from all liability for personal injuries or death sustained by his employés and a similar relief from liability is obtained by the employer by payment of the compensation by himself or an insurance carrier. Section 53. The commission may cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions for civil actions in the Supreme Court. Section 72. The act provides that the employments shall be divided into groups and that:

“The commission shall determine the hazards of the different classes composing each group and fix the rates of premiums therefor based upon the total pay roll and number of employés in each of such classes of employment at the lowest possible rate consistent with the maintenance of a solvent state insurance fund and the creation of a reasonable surplus and reserve; and for such purpose may adopt a system of schedule rating in such a manner as to take account of the peculiar hazard of each individual risk.” Section 95.

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