Ward Gow v. Krinsky

• Decision Date: 05 June 1922
• Docket Number: No. 343,343
• Citation: 28 A.L.R. 1207,42 S.Ct. 529,259 U.S. 503,66 L.Ed. 1033
• Parties: WARD & GOW v. KRINSKY et al
• Court: U.S. Supreme Court

259 U.S. 503

42 S.Ct. 529

66 L.Ed. 1033

WARD & GOW

v KRINSKY et al.

No. 343.

Argued December 14, 1921.

Decided June 5, 1922.

Mr. Herman S. Hertwig, of New York City, for plaintiff in error.

[Argument of Counsel from pages 503-506 intentionally omitted] Mr. E. Clarence Aiken, Deputy Atty. Gen., of New York City, for defendant in error, State Industrial Commission.

Mr. Justice PITNEY delivered the opinion of the Court.

The New York Workmen's Compensation Law of 1913-1914 (Consol. Laws, c. 67), sustained as constitutional against attacks based on the due process and equal protection clauses of the Fourteenth Amendment in New York Central R. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 61 L. Ed. 667, L. R. A. 1917D, 1 Ann. Cas. 1917D, 629, after several amendments, was further amended by chapter 634 of the Laws of 1918, which added to the list of hazardous employments in section 2 a new subdivision or group, as group 45 the second to be so designated—reading as follows:

'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 present writ of error raises the question whether the Compensation Law, as thus extended, if construed and applied so as to impose upon plaintiff in error a liability for compensation in the case of defendant in error Himan Krinsky, is in contravention of either of the cited constitutional provisions.

The singularity of the facts makes a somewhat particular statement necessary to a clear understanding of the argument. Plaintiff in error, Artemas Ward, under the name of Ward & Gow, leases from the Interborough Rapid Transit Company advertising and vending privileges upon various subway and elevated railway lines in the city of New York, and carries on the business of disposing of advertising space in the cars and on station platforms, and selling periodicals and various articles of merchandise in booths located upon the platforms. In the latter department, which alone requires mention, there are 307 employees, including executives, office workers, news stand inspectors, who travel single over the different elevated and subway lines, to inspect displays and see that the sales booths are properly kept, chauffeurs, who drive trucks transporting merchandise from headquarters downtown in Manhattan to the different subway and elevated stations, 18 porters for loading and unloading the trucks at headquarters, and various others, among the 125 news stand salesmen, each of whom is stationed at a booth in a subway or elevated railway station, and whose work is separate from that of other employees. Each of them goes directly to his stand in the morning, and thence to his home in the evening, and his duties consist of keeping a display of papers, magazines, candies, and other small articles in proper order, selling them across the counter, keeping an account of sales, and turning in in collections. The only other employees with whom a salesman comes in contact are the inspector and the chauffeur, who brings supplies from the truck, either down to the subway or up to the elevated platform, and passes them across the counter to the salesman.

Krinsky was one of these salesmen, stationed in a booth at a subway station in the Bronx. The booth was a steel structure 12 feet long, 8 feet wide or high, 2 1/2 feet deep, located against a wall 10 feet from the edge of the platform. In order to keep the booth and its contents free from dust, and his hands in a proper condition of cleanliness, water was kept for convenience in the booth, in a pail furnished by the employer, to be emptied by Krinsky when necessary, and replenished with water obtained from a washroom two flights of stairs above the train level. He was in the habit of emptying the water in the morning upon the tracks of the subway and replenishing the supply before starting business. One morning in February, 1919, while thus emptying the water as usual Krinsky was struck upon the side of the head by an approaching train, his skull was fractured, and he sustained disabling personal injuries, which the Industrial Commission found were accidental and arose out of and in the course of the employment.

An award of compensation made by the commission was affirmed by the Appellate Division of the Supreme Court (Krinsky v. Ward, 193 App. Div. 557, 184 N. Y. Supp. 443), and its judgment was affirmed without opinion by the Court of Appeals. The record was remitted to the Appellate Division, which made the order and judgment of the Court of Appeals its own, and to it, as custodian of the record, the present writ of error was directed.

It was not disputed in the state courts, nor is it questioned here, that in the merchandising department of plaintiff in error there were more than four 'workmen or operatives,' within the meaning of second group 45 of section 2 of the Compensation Law. Evidently the porters were such, and clearly were 'engaged in the same business' with the salesmen, for they loaded the trucks which carried the merchandise from the central depot to the booths. The Appellate Division held that the salesmen, although not 'workmen or operatives,' nevertheless were within the protection of the statute. Reference was made to the definition of 'employee' in subdivision 4 of section 3, amended by Laws 1916, c. 622, and Laws 1917, c. 705, so as to include any one in the service of an employer whose principal business is that of conducting a hazardous employment, construed in previous decisions as bringing within the protection of the statute all employees accidentally injured in the performance of duties incidental to the prosecution of a business defined as hazardous, even though 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., 182 App. Div. 354, 170 N. Y. Supp. 401), and it was held that, since this rule applied to all the other groups defined in section 2, it must be applied in respect to second group 45. That the view of the Court of Appeals was substantially the same appears, not only from its affirming the judgment of the Appellate Division without questioning its reasoning, but from the opinion delivered by the Court of Appeals itself in a case decided at the same time with this. Matter of Europe v. Addison Amusements, 231 N. Y. 105, 131 N. E. 750. Europe was conductor of a famous band of musicians who, after a military service with the American Forces in France, went upon a concert tour throughout the United States, under employment by Addison Amusements, Inc. With the band of 65 pieces there were 4 or more workmen or operatives, employed to accompany it, arrange platforms, chairs, and scenery, handle baggage, etc. Europe himself, although an employee, was not among those described as 'workmen or operatives,' nor engaged in hazardous work, ordinarily so called. During an intermission in the program of a concert he was stabbed and killed by a drummer of the band. The Court of Appeals, sustaining the Industrial Commission and the Appellate Division, held that he was within the protection of second group 45.

In the exercise of our appellate jurisdiction we are bound by the construction of the state law adopted by its court of last resort; hence for present purposes it must be taken as settled that the Legislature intended the compensation law as amended to apply to an employee in Krinsky's situation, precisely as if it were so declared in the words of the statute. Our function is confined to determining whether, as so construed and as applied to the concrete facts of the case, the state contravenes the limitations imposed by the Fourteenth Amendment upon state action.

Under the due process of law clause, plaintiff in error contends that the validity of compulsory Workmen's Compensation Acts depends upon the inherently hazardous character of the occupations covered; that a legislative declaration that a certain employment is hazardous is not conclusive; and that to impose upon the employer, as is said to be done in this instance, a liability to make compensation to any employee out of hundreds whose occupations are nonhazardous, because 4 or more workmen or operatives may happen be regularly employed in the same business, or in or about the same establishment, although not brought into contact with the injured employee, and where, to use the words of counsel, 'his injury was the consequence, not of any hazard inherent in his employment, but of gross personal negligence, or incredible folly that would have brought injury to any person in any occupation whatever,' is so altogether unreasonable as to be wanting in due process. The argument rests upon the curious misconception that the Legislature regarded the workmen or operatives as the sole source of danger to those engaged in the same business with them, and upon the assumption, equally untenable, that the occupation of a salesman at a subway station, protected ordinarily by the comparative security of a steel booth, but called upon at times, in the line of duty, to go into the moving througs of passengers and into close proximity to the rails upon which locomotives and trains are moving, is free from inherent hazard to the salesman.

That Krinsky's injuries arose out of and in the course of his employment was found by the commission, whose findings and decision were affirmed by both courts, and must be conclusive upon us, unless ascertained to be without...