Wilson v. C. Dorflinger & Sons

• Decision Date: 25 April 1916
• Parties: WILSON v. C. DORFLINGER & SONS et al.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 84

112 N.E. 567

WILSON

v.C. DORFLINGER & SONS et al.

Court of Appeals of New York.

April 25, 1916.

Appeal from Supreme Court, Appellate Division, Third Department.

In the matter of the claim of Leona Wilson for compensation to herself for the death of her husband, William H. Wilson, under the state Workmen's Compensation Law, against C. Dorflinger & Sons, employers, and the Knickerbocker Mutual Liability Insurance Company of New York, insurance carrier. Appeal by permission from an order of the Appellate Division unanimously affirming an award of the State Industrial Commission, allowing compensation to the claimant at the rate of $5.77 per week during her widowhood and a further sum of $100 on account of funeral expenses (170 App. Div. 119,155 N. Y. Supp. 857). Reversed.

Arthur Butler Graham, of New York City (William Henry Woolley, of New York City, of counsel), for appellants.

Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for respondent.

BARTLETT, C. J.

This claim grows out of the accidental death of William H. Wilson, the husband of the claimant, who was employed as a porter and shipping clerk by C. Dorflinger & Sons, who were engaged in the business of selling glassware in the city of New York. One of the incidental duties of Wilson was to operate an elevator on the premises of his employers when he had occasion to use the same. On September 30, 1914, being engaged in thus operating the elevator, he accidentally fell down the elevator shaft, and was so severely injured that he died on the same day as the result of the fall. The Workmen's Compensation Commission has decided that his injuries arose out of and in the course of his employment, and the only question presented by this appeal is whether the case falls within the purview of the Workmen's Compensation Law (chapter 816 of the Laws of 1913, as re-enacted and amended by chapter 41 of the Laws of 1914).

The Workmen's Compensation Law enumerates 42 groups of hazardous employments, and provides that compensation thereunder shall be payable for injuries sustained or death incurred by employés engaged in any of these employments. If the employment in which the claimant's husband was engaged when he was accidentally killed by falling down the elevator shaft was one of those thus enumerated in the statute, there would be no question as to the right of his widow to recover compensation for his death. The finding of the commission, however, is that he was employed by a firm ‘engaged in the business of selling glassware,’ and this employment is not mentioned in any of the groups enumerated in the Workmen's Compensation Law. The manufacture of glass, glass products, glassware, porcelain, or pottery is covered by group 20; but that group does not extend far enough to include the business of selling glassware. The Appellate Division concedes this, and holds that the employé was not engaged in a hazardous business within the Workmen's Compensation Law unless the business falls within group 41 of the act, which embraces 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 power or drawn by horses or mules.’

It is only by construing the word ‘vehicle’...