Noyer v. Cavanaugh

• Decision Date: 11 July 1917
• Citation: 221 N.Y. 273,116 N.E. 992
• Parties: DE NOYER et al. v. CAVANAUGH et al.
• Court: New York Court of Appeals Court of Appeals

221 N.Y. 273

116 N.E. 992

DE NOYER et al.

v.CAVANAUGH et al.

Court of Appeals of New York.

July 11, 1917.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Law by Nora De Noyer, widow, and others, to obtain compensation for death of her husband, opposed by D. B. Cavanaugh, employer, and the Massachusetts Bonding & Insurance Company, insurer. Compensation was awarded, and the award confirmed by the Appellate Division, Third Department (163 N. Y. Supp. 1114), and the employer appeals. Affirmed.

Charles E. Spencer, of Syracuse, for appellants.

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

POUND, J.

On July 21, 1916, Joseph E. De Noyer was employed as driver of a truck by D. B. Cavanaugh, who was in the trucking business at 216 West Jefferson street, Syracuse, N. Y. The Crown Oil Company was engaged in the business of selling oil and gasoline. Cavanaugh made an arrangement with it by which he was to furnish it a horse and driver to be used in connection with a tank wagon owned by the company for the delivery of oil and gasoline, and De Noyer was employed by Cavanaugh for the purpose. While he was engaged in delivering a can of gasoline from the gasoline truck of Crown Oil Company to a store at 710 Grape street, Syracuse, N. Y., and while he was carrying the can of gasoline into the store, the gasoline exploded and his clothes took fire, causing his death. Award of compensation was made against D. B. Cavanaugh as employer.

[1] This case is on all fours with Matter of Dale v. Saunders Bros., 218 N. Y. 59, 112 N. E. 571, in which we held that the general employer who carries on a hazardous employment is liable under the Workmen's Compensation Law for injuries sustained or death incurred by his employés, arising out of and in the course of their employment, although at the time they were working under the direction of a special employer. We are asked to reconcile our decision in that case with our decision without opinion in Matter of Nolan v. Cranford Co., 171 App. Div. 959,155 N. Y. Supp. 1128;Id., 219 N. Y. 581, 114 N. E. 1074, wherein an award against the special employer was upheld on similar facts, except that the general employer had but one employé, and was himself an employé of the special employer, and was not carrying on the business of teaming, except in the sense that he furnished a truck and team of horses with a driver to the special employer. It is not necessary to distinguish the cases. They are not in conflict. Where a horse and driver have been let by a general employer into the service of another, the driver is subject to the control, and therefore is the agent, of his general employer as to the care and management of the horse. Pigeon's Case, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737.

[2] Even where no property of the general employer is intrusted to the employé to be used in the special employment, the general employer pays the compensation, may direct the employé when to go to work, and may discharge him for refusal to do the work of the...