Dose v. Moehle Lithographic Co.

Citation221 N.Y. 401,117 N.E. 616
PartiesDOSE v. MOEHLE LITHOGRAPHIC CO. et al.
Decision Date23 October 1917
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under Workmen's Compensation Act by Jacob Dose to obtain compensation for personal injuries, opposed by the Moehle Lithographic Company, employer, and the Ocean Accident & Guarantee Corporation, Limited, insurer. From an order of the Appellate Division (165 N. Y. Supp. 1014), reversing its award, the State Industrial Commission appeals. Reversed.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for appellant.

Frederick W. Catlin, of New York City, for respondents.

HOGAN, J.

The Moehle Lithographic Company, hereinafter designated as the ‘Company,’ is engaged in the business of lithographing and printing, classified as hazardous in group 40, section 2, of the Workmen's Compensation Law. The business of the company is carried on in a plant maintained by it in the borough of Brooklyn.

The claimant, Dose, by occupation a bricklayer, was employed by the company to point up one of the walls of its plant and repair cracks therein. For such labor he and his helper were to be paid the regular wages for bricklayers and bricklayers' helpers. The company furnished all materials, ladders, and supplies. Dose had been employed at the work in question without the aid of a helper for two or three days, and while thus engaged on June 22, 1916, one of the ropes supporting a scaffold upon which he was at work broke. Dose was precipitated a distance of some 30 feet to the ground, receiving injuries for which an award was made to him. Upon appeal therefrom by the company and insurer, the determination of the Industrial Commission was reversed and the claim dismissed, upon the authority of Matter of Bargey v. Massaro Macaroni Co., 170 App. Div. 103,155 N. Y. Supp. 1076, affirmed 218 N. Y. 410, 412,113 N. E. 407.

I conclude the Bargey Case is clearly distinguishable from the case at bar. In that case the accident which resulted in death occurred December 2, 1915. Compensation was awarded April 30, 1915. The reversal by the Appellate Division was made in November, 1915. The deceased, a carpenter and builder, had entered into a contract to ‘raise the second and third story floor and roof of the southwest corner of the macaroni factory to a level with the floor and roof north of this section,’ and to furnish the material and labor therefor for a stated sum. During the performance of the contract, work additional to that contracted for developed, which Bargey did as directed and presented bills therefor to the macaroni company. The factory proper was upon the second and the third floor. When Bargey met his death, he was engaged in work in a room on the first floor, which work was additional to that covered by the contract. The determination of the Industrial Commission was reversed by the Appellate Division upon the ground that Bargey was not an employé engaged in a hazardous employment within the Compensation Law, which conclusion was approved by this court. Judge Collin, writing for the court, said:

‘Obviously, two factors are essential to empower the Commission to award compensation, namely: (a) An employé injured (b) while engaged in an hazardous employment named in the section.’

The opinion then quotes definitions from the Compensation Law in force at the time of the death of Bargey, and in substance holds that, though the macaroni company was an employer, because it employed workmen in a hazardous employment, to wit, preparing macaroni, Bargey was not an employé, because he was not engaged in the preparation of macaroni. At the time the Bargey claim arose and the award was made, the Workmen's Compensation Law, Consol. Laws, c. 67, § 3) contained the following definitions:

“Employer' * * * a person, partnership, association, corporation, * * * employing workmen in a hazardous employment. * * *'

“Employé' 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, and shall not include farm laborers or domestic servants.'

“Employment' includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain.'

“Injury' and ‘personal injury’ mean only accidental injuries arising out of any in the course of employment. * * *' Laws 1914, c. 41.

By section 2, c. 622, Laws of 1916, the statute defining ‘employé’ was amended to read:

“Employé' means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his...

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10 cases
  • Ideal Bakery v. Schryver, 1695
    • United States
    • United States State Supreme Court of Wyoming
    • May 12, 1931
    ...... Leslie v. City of Casper, (Wyo.) 288 P. 15. In. re Larsen, (N. Y.) 112 N.E. 725; Dose v. Co., . 117 N.E. 616. Great latitude is allowed in the taking of. evidence under the ... National Biscuit Co., 221 N.Y. 20, 116 N.E. 346;. Dose v. Moehle Lithographic Co., 221 N.Y. 401, 117. N.E. 616; McNally v. Diamond Mills Paper Co., 223. N.Y. ......
  • Ward Gow v. Krinsky
    • United States
    • United States Supreme Court
    • June 5, 1922
    ...such duties were not a part of the characteristic process or operation forming the basis of the group (Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401, 405, 117 N. E. 616; Spang v. Broadway Brewing & Malting Co., 182 App. Div. 443, 169 N. Y. Supp. 574; Joyce v. Eastman Kodak Co., 1......
  • Dorrell v. Norida Land & Timber Co.
    • United States
    • United States State Supreme Court of Idaho
    • December 14, 1933
    ...... and in the course of the employment. (Dose v. Moehle. Litho. Co., 221 N.Y. 401, 117 N.E. 616; Waters v. William J. Taylor Co., 218 N.Y. 248, ...Schaeffer et al., 270. Pa. 141, 113 A. 64; Dose v. Moehle Lithographic Co. et. al., 221 N.Y. 401, 117 N.E. 616; Larsen v. Paine. Drug Co., 218 N.Y. 252, 112 N.E. 725. ......
  • McNally v. Diamond Mills Paper Co.
    • United States
    • New York Court of Appeals
    • March 12, 1918
    ...Co., 218 N. Y. 410, 113 N. E. 407. The accident occurred before the amendment of the statute in 1916. Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401, 117 N. E. 616. The business of the Diamond Mills Paper Company was the manufacture of paper, which under group 15 of section 2 of t......
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