Verschleiser v. Joseph Stern Son, Inc.

Decision Date01 June 1920
Citation229 N.Y. 192,128 N.E. 126
CourtNew York Court of Appeals Court of Appeals

Proceeding under the Workmen's Compensation Law for compensation by Morris Verschleiser, opposed by Joseph Stern Son, Incorporated, employer, and Zurich General Accident & Liability Insurance Company, Limited, insurance carrier. From an order of the Appellate Division (188 App. Div. 937,176 N. Y. Supp. 41), reversing by a divided court an award made by the State Industrial Commission, the Commission appeals.

Order of the Appellate Division reversed, and award of the Industrial Commission affirmed.

McLaughlin, J., and Hiscock, C. J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for appellant.

John N. Carlisle, of Albany, for respondent.


On June 7, 1918, Morris Verschleiser, the claimant, was employed by Joseph Stern Son, Incorporated, at its abattoir in the city of New York on the eighth floor, known as the killing floor. It appears that after each animal is killed, it is the practice to cut it open and immediately disembowel it, separating the various portions. It was the duty of the claimant, who was known as a ‘trucker’ or ‘lugger,’ to gather the bellies on his truck and truck them to a hole or chute down which he threw them to the seventh floor.

At the time in question the claimant was standing beside his truck, waiting for the ‘belly’ of an animal being cut up by one Mandelheim. Also waiting in line, apparently for other portions of viscera, was another trucker, Dudler.

One Louis E. Baxter, who at the time was commissioned as a veterinary inspector of the United States government, was stationed at the slaughterhouse, and in charge of the entire building so far as government inspection was concerned. While the claimant was waiting to have his truck loaded, some one-and the Industrial Commission has found-a fellow employe of claimant, dropped a piece of flesh about two feet long around the neck of claimant. There is some testimony that this may have been done by the veterinary. The claimant resented the insult and assault upon him, and, in his excitement, believing the attack to have been made by Dudler, went over to him and struck him several times with the piece of flesh, and then threw it down. Dudler thereupon kicked the claimant, causing the injuries complained of. Dudler's hands were occupied, so he used his feet.

The state Industrial Commission did not find as to who began the assault upon claimant, and, in his opinion, Commissioner Lyon states:

‘Under the circumstances here disclosed, I do not think it necessary to determine who began the melee. Certainly the claimant did not begin it.’

It appears that prior to this pieces of fat were thrown at the claimant by Dudler and others. The claimant testified that Dudler used to peck at and aggravate him, and he told him to let him alone. About 20 minutes before the claimant received his injury, Dudler, he says, ran his truck into the one claimant was pushing, and he (claimant) says that when he felt the pieces of flesh on his neck, he exclaimed, ‘Why don't you let me work?’ and threw the pieces of flesh down; that Dudler was standing next to him, and then kicked him.

The Industrial Commission claims that this case falls within Matter of Carbone v. Loft, 174 App. Div. 901,159 N. Y. Supp. 1104, affirmed 219 N. Y. 579, 114 N. E. 1062, and Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. The order of reversal by the Appellate Division, Third Department, is based upon Matter of Stillwagon v. Callan Bros., 183 App. Div. 141,170 N. Y. Supp. 677, affirmed 224 N. Y. 714, 121 N. E. 893,Griffin v. Roberson & Son, 176 App. Div. 6,162 N. Y. Supp. 313; and Matter of De Filippis v. Falkenberg, 170 App. Div. 153,155 N. Y. Supp. 761, affirmed 219 N. Y. 581, 114 N. E. 1064. This reversal was by a divided court.

In Matter of Carbone v. Loft, 174 App. Div. 901,159 N. Y. Supp. 1104, affirmed 219 N. Y. 579, 114 N. E. 1062, claimant became engaged in an exchange of insulting language with a fellow employe, who about three-quarters of an hour later violently attacked claimant, with the resulting injuries for which recovery was demanded. The recovery was allowed.

In Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344, the facts were that a driver brought his horses into the employer's stable, where a fellow workman and he unharnessed them and proceeded to wash them off with a hose. The driver, claimant, told the fellow workman he was using too much water on the horses, and then the follow workman intentionally sprinkled water on the claimant. The claimant, having temporarily left the stable yard, was returning to his work, when he met the fellow workman. The claimant touched him on the shoulder, saying, ‘Don't do that again,’ whereupon the fellow workman slapped the claimant on the shoulder, and, as the claimant turned around the man's finger stuck in claimant's eye, causing severe injury. This court held this injury was accidental and within the meaning of the statute. It was sudden and unlooked for, and the purpose of the act is to insure the workman at the expense of the employer against personal injuries, not expected or designed by the workman himself, provided such injuries arise out of and in the course of employment. The opinion, however, was careful to say that it was an obligation of claimant's employment to take care of the horses which he drove, and to see that they were not injured by injudicious wetting or otherwise by his fellow workmen; that in the course of their employment while the two men were at work a quarrel or argument arose over the wetting of the horses, and personal injury grew out of the physical contact resulting from the quarrel and that therefore the accident grew out of and in the course of employment.

In Matter of Stillwagon v. Callan, 183 App. Div. 141,170 N. Y. Supp. 677, affirmed 224 N. Y. 714, 121 N. E. 893, the injury was the result of an assault initiated by the deceased, Stillwagon, and he could not be the beneficiary of his own wrongful act when that act was not committed in aid of or in the scope of his work.

Griffin v. Roberson, 176 App. Div. 6,162 N. Y. Supp. 313, was another case where the claimant initiated the assault which resulted in his own injury and death. In that case the court well stated the distinction between this line of cases and the cases of Matter of Carbone v. Loft and Matter of Heitz v. Ruppert:

‘It has been held in different cases that when a servant in the course of his employment is assaulted by another he may sometimes be entitled to compensation. Such was the case of Carbone v. Loft, decided without opinion by this court. * * * This is on the theory that the injured servant is protecting his master's property or promoting his master's interest, or that the assault on him was in some way incidental to the duty which he owed his master.’ 176 App. Div. 7,162 N. Y. Supp. 314.

In Matter of De Filippis v. Falkenberg, 170 App. Div. 153,155 N. Y. Supp. 761, affirmed 219 N. Y. 581, 114 N. E. 1064, the injury did not happen in the course of the employment. It did not happen in the workroom of the employer, but in an adjoining toilet, for the convenience of the work people. It was not due to any unsafe conditions of the toilet maintained by the employer, but solely to the personal act of a fellow servant. A pair of scissors was thrust through a partition, striking claimant in the eye.

In the instant case the claimant was not the aggressor, but was attending to his master's business on his master's premises at the time of the assault. He was waiting to ‘lug’ away viscera, and while waiting there for his master's benefit and in the work for which he was employed was assaulted. In his excitement he defended himself by a counter attack upon, as it seems, another employe, with the resulting injury to himself. He did not initiate the ‘m elee,’ but was desirous only of transacting his master's business in peace. This fellow employe had previously, he claimed, interfered with his working. The Industrial Commission has found that claimant was engaged in the regular course of his employment when he was kicked. This is a finding of fact. The claimant was thrown on the defensive, striking Dudler with the piece of flesh, who kicked him. If claimant was right in assuming that Dudler was his assailant, his striking back would have been the natural result of the act, and it might then well be said that claimant was within the act.

The Workmen's Compensation Law (Consol. Laws, c. 67) should be construed broadly. Compensation under it does not depend on any fault of the master or any negligence of the servant. The law was enacted to do away with the defenses which had governed the law of master and servant. The question in each case arising under the Workmen's Compensation Law is, ‘Was the injury received while engaged in the master's business?’ If the servant had left his employment and was willfully pursuing designs of his own, he would not be...

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