259 U.S. 503 (1922), 343, Ward & Gow v. Krinsky

Docket Nº:No. 343
Citation:259 U.S. 503, 42 S.Ct. 529, 66 L.Ed. 1033
Party Name:Ward & Gow v. Krinsky
Case Date:June 05, 1922
Court:United States Supreme Court

Page 503

259 U.S. 503 (1922)

42 S.Ct. 529, 66 L.Ed. 1033

Ward & Gow



No. 343

United States Supreme Court

June 5, 1922

Argued December 14, 1921




1. The rights of employers under the Fourteenth Amendment are not violated by an extension of the New York Compensation Act (see New York Central R. Co. v. White, 243 U.S. 188) to all employments in which four or more workmen or operatives (farm laborers and domestic servants excepted) are regularly employed, construed by the state court as including, also, all other employees of the same employer and employed in the same business with such workmen and operatives, though at places remote from their work. Pp. 510, 513, 516.

2. So held of an employer in the business of disposing of advertising space on the cars and station platforms of subway and elevated railway lines in a city, and of selling newspapers, etc., at booths located on the platforms; with numerous employees, including executives, clerks, inspectors, chauffeurs and porters, and many salesmen working in the booths separately and apart from other employees, and where the injury in question was inflicted upon such a salesman by a subway train while he was engaged in emptying from the platform upon the tracks a pail of water, used in connection with his work in his booth. P. 507.

193 A.D. 557, 231 N.Y. 525, affirmed.

Error to a judgment of the Supreme Court of New York Appellate Division, entered upon remittitur from the Court of Appeals, and affirming an award of compensation made by the New York Compensation Commission in favor of the defendant in error Krinsky.

Page 506

PITNEY, J., lead opinion

MR. JUSTICE PITNEY delivered the opinion of the Court.

The New York Workmen's Compensation Law of 1913-1914 [Laws 1913, c. 816; Laws 1914, cc. 41 and 316] sustained as constitutional against attacks based on the due process and equal protection clauses of the Fourteenth Amendment in New York Central R. Co. v. White, 243 U.S. 188, after several amendments, was further amended by c. 634 of the Laws of 1918, which added to the list of hazardous employments in § 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,

Page 507

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

Page 508

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 A.D. 557), 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 § 2 of the Compensation Law. Evidently the porters were

Page 509

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 § 3, amended by Laws 1916, c. 622, and [42 S.Ct. 532] 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; Spang v. Broadway Brewing & Malting Co., 182 A.D. 443; Joyce v. Eastman Kodak Co., 182 A.D. 354), and it was held that, since this rule applied to all the other groups defined in § 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. 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 four 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

Page 510

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,...

To continue reading