Europe v. Addison Amusements, Inc.

• Citation: 231 N.Y. 105,131 N.E. 750
• Parties: EUROPE v. ADDISON AMUSEMENTS, Inc., et al.
• Decision Date: 19 April 1921
• Court: New York Court of Appeals

231 N.Y. 105

131 N.E. 750

EUROPE

v.ADDISON AMUSEMENTS, Inc., et al.

Court of Appeals of New York.

April 19, 1921.

Proceeding under the Workmen's Compensation Act by Willie A. Europe for compensation for the death of her husband, James Reese Europe, opposed by the Addison Amusements, Incorporated, employer, and the United States Casualty Company, insurance carrier. From an order of the Appellate Division (184 N. Y. Supp. 919), affirming an award of the State Industrial Commission, the employer and insurer appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

William H. Hotchkiss, of New York City, for appellant.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), and Bernard L. Shientag, of New York City, for respondent State Industrial Commission.

Charles E. Toney, of New York City, for respondent claimant.

CRANE, J.

Lieutenant James Reese Europe was the conductor of a famous negro band which accompanied the 365th Infantry (the 15th New York) to France shortly after the United States entered into the late war with Germany.

Europe was a musical composer, director,and orchestra leader. After the band's return from Europe at the conclusion of the war, it started on a concert tour throughout the United States under a contract with or employment by the Addison Amusements, Incorporated. This company was formed for the purpose of supplying Europe's band with engagements, and conducting through it the entertainment business. It employed Europe and all the musicians. During an intermission in the program of a concert given at Mechanics' Hall, in the city of Boston, on the 9th day of May, 1919, Europe was stabbed and killed by a drummer of the band.

The Industrial Commission has made an award to his widow, Willie A. Europe, of $6.924 weekly during widowhood and $100 on account of funeral expenses. The basis for this allowance is section 2, second group 45, of the Workmen's Compensation Law (Cons. Laws, c. 67), which reads as follows:

‘Section 2. Application. Compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous employments: * * *

‘Group 45. All other employments not hereinbefore enumerated carried on by any person, firm or corporation in which there are engaged or employed four or more workmen or operatives regularly, in the same business or in or about the same establishment, either upon the premises or at the plant or away from the plant of the employer, under any contract of hire, express or implied, oral or written, except farm laborers and domestic servants.’

The Addison Amusements, Incorporated, employed a band of 65 pieces, for the purpose of giving concerts for hire. It was not a business enumerated in any of the other groups of section 2, and therefore came within the first words of the sentence, ‘all other employments not hereinbefore enumerated.’ The evidence permitted the finding that it employed with the band four or more workmen or operatives regularly who accompanied the band, and therefore were engaged in the same business. These workmen were the following: Lloyd Gibbs, a stage manager, who arranged the platforms, chairs, and scenery; a man named Lightfoot, who handled the baggage, taking it to and from the theatre and placing it in the proper dressing rooms; another man named Jackson, who assisted Lightfoot in this manual work of handling the baggage; and a fourth man named Coleman, who took care of the uniforms of the men, pressing, cleaning, and repairing them. Although these four men took some part, at times, in entertaining, their principal work was the manual labor connected with maintaining such a band.

Europe, the conductor, was an employee of the Addison Amusements, Incorporated, and although not himself engaged in hazardous work, was engaged in a business classified by this law as a hazardous employment. By subdivision 4, § 3, ‘employee’ means--

‘A person engaged in one of the occupations enumerated in section 2, 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 employer; and shall not include farm laborers or domestic servants.’

The Legislature, in section 2, has classified certain employments as hazardous, and has given the right of compensation to employees engaged in such hazardous employments.

By the amendment of subdivision 4, § 3 (Laws 1916, c. 622, § 2), an employee, to be entitled to compensation, is...