Littler v. George A. Fuller Co.

• Decision Date: 07 May 1918
• Citation: 119 N.E. 554,223 N.Y. 369
• Parties: LITTLER v. GEORGE A. FULLER CO.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 369

119 N.E. 554

LITTLER

v.GEORGE A. FULLER CO.

Court of Appeals of New York.

May 7, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings under the Workmen's Compensation Law by William Littler to obtain compensation for injuries, opposed by the George A. Fuller Company, employer. There was an award by the State Industrial Commission for the loss of left leg, which was affirmed by the Appellate Division, Third Department, of the Supreme Court (168 N. Y. Supp. 1116), and the employer, by permission, appeals. Reversed, with directions.

E. Clyde Sherwood, of New York City, for appellant.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for respondent.

POUND, J.

[1] Littler, the claimant, was a bricklayer. At the time he was hurt he was working for George A. Fuller Company. It was constructing a residence at Great Neck, L. I., two miles from the railroad station. The workmen, who came out by train, had refused to remain on the job unless the employer would furnish free transportation to and from the work from and to the railroad station. The employer hired an automobile truck to take the employés, morning and night, to and from their work. At the end of the day's work on May 22, 1917, when the truck was making its trip to the station, it went into the ditch. Littler was thrown off and injured.

The Industrial Commission properly held that the injuries arose out of and in the course of Littler's employment. The vehicle was provided by the employer for the specific purpose of carrying the workmen to and from the place of the employment and in order to secure their services. The place of injury was brought within the scope of the employment because Littler, when he was injured, was ‘on his way * * * from his duty within the precincts of the company.’ De Voe v. N. Y. State Railways, 218 N. Y. 318, 320,113 N. E. 256, L. R. A. 1917A, 250. The day's work began when he entered the automobile truck in the morning and ended when he left it in the evening. The rule is well established that in such cases compensation should be awarded. Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778; Cremins v. Guest, [1898] 1 K. B. 469; Stewart & Son v. Loughwest, [1917] A. C. 249. The case would be different if at the time of the accident claimant had been on the railroad train on his way to or from Great Neck.

[2] The average weekly wage of Littler was computed by the commission under subdivision 2 of section 14 of the Workmen's Compensation Law (Cons. Laws, c. 67), with the result that the award is based on annual earnings of 300 times his daily wage. No finding that bricklayers work substantially the whole of the year was made. The evidence is to the effect that they average about 30 weeks of employment at their trade in each year. Three hundred days' work in the year is the standard of steady employment. ‘The average weekly wages of an employé shall be one fifty-second part of his average annual earnings.’ Section 14, subd. 4. The award should not exceed two-thirds of the earning capacity. Average annual earnings are...