Newman v. Newman (In Re Emp'rs' Liab. Assur. Corp.)

• Citation: 113 N.E. 332,218 N.Y. 325
• Parties: NEWMAN v. NEWMAN et al. In re EMPLOYERS' LIABILITY ASSUR. CORP., Limited.
• Decision Date: 06 June 1916
• Court: New York Court of Appeals

218 N.Y. 325

113 N.E. 332

NEWMAN

v.NEWMAN et al.

In re EMPLOYERS' LIABILITY ASSUR. CORP., Limited.

Court of Appeals of New York.

June 6, 1916.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Act by Belle Newman, for compensation for herself and children for the death of Frank Newman, against George H. Newman, employer, and the Employers' Liability Assurance Corporation, Limited. From an order of the Appellate Division (169 App. Div. 745,155 N. Y. Supp. 665), reversing an award made by the State Industrial Commission to Belle Newman, individually and in behalf of her children, and disallowing and dismissing her claim for compensation under the Workmen's Compensation Act on account of the death of her husband, Frank Newman, the state Workmen's Compensation Commission appeals. Affirmed.Egburt E. Woodbury, Atty. Gen. (E. Clarence Aiken, Asst. Atty. Gen., of counsel), for appellant.

Bertrand L. Pettigrew, of New York City, for respondents.

CHASE, J.

The agreed statement of facts on which the claim herein is based is as follows:

‘Deceased was employed by George Newman, proprietor of a meat market at Oneida, N. Y., and his principal duties were that of driving a meat delivery wagon, acting both as driver and delivery man. Occasionally he also assisted in the abbatoir; and occasionally, when not engaged in his principal duties, he assisted in cutting and preparing meat for the purpose of retail sale, in accordance with the usual custom of a clerk in a retail meat store; also occasionally delivered meat in places very near the market, going to and from on foot. The wagon and horse was not used for deliveries after 7 p. m. On the night of the accident the deceased stopped delivering with the horse and wagon about 7 p. m., and worked in the market cutting and preparing meats in the aforesaid manner until 10 o'clock p. m., and was injured while on his way on foot to arrange with one Dungey for the preparation and care of a dressed hog, purchased by George Newman, to be called for the following Friday. At the time of the accident deceased had a package of meat for delivery to a near-by flat. The place where he was injured was on the way he would take to go from the market to the flat.’

As the employé was proceeding from the market on his way to the flat where the meat was to be delivered, he fell on a pail contining broken glass and severed a varicose vein, causing a hemorrhage which resulted in his death the next day.

[1] Compensation under the Workmen's Compensation Law (Consol. Laws, c. 67) is only payable for injuries sustained or death incurred by employés engaged in certain employments defined as hazardous and enumerated in 42 groups, stated in subdivisions of section 2 of said chapter. The only groups or subdivisions which it is claimed are applicable to this case are two numbered 30 and 41. Said section provides:

‘Compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employés engaged in the following hazardous employments.’

The groups or subdivisions follow, and group 41 provides:

‘The operation, otherwise than on tracks, on streets, highways, or elsewhere of cars, trucks, wagons or other vehicles, and rollers and engines, propelled by steam, gas, gasoline, electric, mechanical or other...