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689), where the claimant was injured while engaged in the single or isolated act of plastering one of the rooms of an apartment house. It would also appear that the claimant in that case stood in the relation of an independent contractor to the employer. Those cases have no application here because the regular and constant employment of the claimant as well as of other carpenters in this case was hazardous as distinguished from isolated or particular acts of employment.
In Matter of Mulford v. A. S. Pettit & Sons, Inc. (220 N. Y. 540) the employer was engaged in a non-hazardous occupation but furnished its employees with a motorcycle for use in its business and while so using the motorcycle the employee was killed. The operation of such vehicle was hazardous. It was held that although the business of the employer was not the operation of motorcycles, in any sense nevertheless the operation of a motorcycle by the deceased was an incident to his employer's business and that if in connection with that business the purpose of using the motorcycle was profit that was sufficient to bring the case within the act. That case was decided before the accident in question and is not, therefore, in its application to the present case affected by subsequent amendments to the statute. I think it controls the decision which should be made here. In both cases the employees were regularly and permanently engaged in a hazardous employment incidental to the employer's business and conducted in connection with that business for the purpose of profit. No other argument against the award is advanced.
The award should be affirmed. Award unanimously affirmed.
The chief engineer of the Underwriters' Association of New York State incurred series facial disfigurement from the lashing of a hose attached to a municipal fire engine that he was testing. The Commission awarded him $2,000 compensation upon opinion of Commissioner Sayer, who said:
DAW V. UNDERWRITERS' ASSOCIATION OF NEW YORK, S. D. R., vol. 16, p. 454, Bul. vol. 3, p. 198, May 10, 1918, in part.
SAYER, Commissioner: It is contended in this case that the employment is not one carried on for pecuniary gain. To my mind, it will be a perversion of the spirit of the law to so hold. While it is true that the Underwriters' Association is not engaged in business to make a profit for itself, it is engaged in business to make a profit for its constituent membership. Everything done by the Underwriters' Association toward securing fair and adequate insurance rates, and toward reducing fire losses, tends to create a profitable condition in the fire insurance business. In order that the various municipalities in the state may not be subjected to the necessity of inspections by the engineers of 140 different insurance companies, and that the companies may not be compelled to employ 140 inspectors where one would do, they have generally pooled their interests and pooled their experience in fire losses, and such pooling is carried out by the medium of the Underwriters' Association to which they all contribute. The effect of this pooling
arrangement is to stabilize the entire fire insurance business and to make for better practices and greater safeguards against fire losses. It is certainly not a charitable institution. It is a business association, carried on by business men in the interest of the fire insurance companies, who operate for pecuniary gain.
A church corporation engaged in building a church took out workmen's compensation insurance. A workman was badly disabled while at work on the building. The church and the workman entered into an agreement for compensation which the Commission approved and from which the insurance carrier took no appeal. The carrier paid the compensation periodically for thirty-two weeks and then procured a rehearing before a deputy commissioner who terminated the agreement upon the ground that the church had not carried on the work for pecuniary gain. The workman appealed to the Commission which reinstated the agree ment saying that the carrier was estopped to raise the question of jurisdiction because the point relative to pecuniary gain was a litigated fact adjudged in favor of the party that had averred jurisdiction. The insurance carrier thereupon appealed to the Appellate Division which unanimously reversed the award and dismissed the claim with citation of Doey v. Howland Co. (Bulletin 87, page 375) and Hassen v. Elm Coal Co. (Bulletin 95, page 249) upon the subject of estoppel: Vine v. West End Presbyterian Church, S. D. R., vol. 19, p. 492, Bul., vol. 4, p. 145, Mar. 5, 1919; App. Div. -, Nov. 12, 1919.
H. EMPLOYER, STOCKHOLDER OR OFFICER ACTING AS AN EMPLOYEE
The leading case of Bowne v. Bowne Co., and other cases falling under this topic, have been presented in Bulletin 87, pages 186See also Bulletin 81, pages 259-262.
A factory superintendent also acted as treasurer of the corporation that operated the factory. He owned 180 of 1,500 shares. His salary was $5,000. While instructing an employee, he caught his hand in a machine and lost four of his fingers. The Commission awarded him $15 per week for 2143 weeks for proportionate loss of use of his hand and commuted the award to a lump sum of $3,007.94. Upon appeal the employer corporation presented a brief on behalf of its injured superintendent and the attorney-general declared that he had been on the payroll estimate for executive officers which was part of the insurance policy according to Workmen's Compensation Law, § 54, subd. 4. The Appellate Division affirmed the award with opinion, two justices dissenting. It distinguished the case from Bowne v. Bowne Co., saying that Berman, though an officer, was injured in the course of his regular employment. Full text of the court's opinion is as follows:
BERMAN V. RELIANCE METAL SPINNING & STAMPING CO., 187 App. Div. 816, May 7, 1919.
WOODWARD, J.: Morris Berman is the owner of a considerable number of shares of stock in the Reliance Metal Spinning and Stamping Company, and is the treasurer of such company, though his duties as treasurer appear to be comparatively unimportant. He was on July 30, 1918, at the time of the accident resulting in the loss of four of his fingers on the right hand, employed as manager of the plant, and was engaged in instructing an employee in the use of a machine. No question is raised as to the general character of his employment; no one questions that he was injured while in the discharge of his ordinary duties; but it is urged that because he was the treasurer of the company, and was paid a salary of $5,000 per year, he was not within the Workmen's Compensation Law; and the case of Matter of Bowne v. Bowne Co. (221 N. Y. 28) is relied upon for this contention. We think there is a clear distinction in the cases. The Industrial Commission in that case found that the claimant was employed as president," and he was injured while temporarily assisting some laborers in handling lumber. He was paid a salary of $70 per week in his employment as president, and
this salary was continued after the accident, the claimant being the majority stockholder of the corporation, and it is entirely obvious from the facts stated that the claimant was not employed in a hazardous occupation within the meaning of the statute, for he was employed as president, and there is nothing in the duties of a president of a manufacturing corporation, having charge of the business, which requires him to handle lumber. He was not, so far as appears from the case, employed for such a purpose.
Here the claimant is a high-priced laborer, the superintendent of the plant, and he is injured while in the discharge of the duties in which he is regularly employed, and of course is entitled to the same protection which comes to any other man actually employed in a hazardous work. It is not the fact that a man is a stockholder and officer of the corporation that determines; it is the character of his employment. If the claimant had been employed as treasurer of the corporation at a fixed salary as such treasurer, and he was employed for that purpose and such duties as should be incident to such employment, he would not be entitled to compensation if he went out into the factory and undertook other employment, because he would not be employed for such a purpose; would not be within the contemplation of the insurance. But this man was included in the insurance as superintendent or manager of the plant, and while engaged in his regular employment he was within the letter and the spirit of the act.
We are of the opinion that under the statute it was competent for the Industrial Commission to estimate the proportionate loss of the use of claimant's hand, and that the award is not to be disturbed on this account. While the commuting of awards and the payment of lump sums is not to be encouraged, and should not be resorted to except in special cases where justice will be promoted upon the shown facts, we think there is no occasion for interference here, as the parties appear to have originally acquiesced in this disposition, while questioning the authority to make the award.
The award of the State Industrial Commission should be affirmed. All concurred, except LYON and COCHRANE, JJ., dissenting. Award affirmed.
A laborer for a milling company was also its secretary and one of its stockholders. The Commission, upon recommendation of Commissioner Lyon, awarded him compensation for an injury. Commissioner Lyon distinguished his case from Bowne's case because of the unimportance of his secretarial duties and found nothing in Bowne's case that would prevent a stockholder from being at the same time an employee: Pike v. McDonald Milling Co., S. D. R., vol. 16, p. 481, Bul., vol. 3, p. 195, May 10, 1918.
I. FARM LABORERS
The compensation law denies compensation to farm laborers. Earlier cases contested upon the ground that the injured employees were farm laborers have been presented in Bulletin 87, pages 79-81, 193-195. Later cases are presented here.
A canning factory raised vegetables to supply the needs of its canning business. It sent its employees from the factory into the field to pull and bunch some beans. In this outside work one employee accidentally destroyed the eye of another with a pitchfork. The Commission refused to hold the injured employee a farm laborer upon ground that the bean pulling was but incidental to the canning. The Appellate Division affirmed an award to the injured employee unanimously and without opinion: Clarke v. Sherman, S. D. R., vol. 15, p. 602, Feb. 15, 1918; 184 App. Div. 921, May 21, 1918.
A real estate speculator was improving the buildings and landscape of an abandoned farm which he had bought with a view to sale at a profit after so making the place attractive. One of his employees was gathering the apples from a tree that he had been ordered to trim. His ladder slipped and threw him to the ground (S. D. R., vol. 19, p. 523, Bul., vol. 4, p. 166). Upon appeal from an award for his injuries, the Appellate Division unanimously held that the employer was not engaged in farming. Its opinion in the case is as follows:
O'DELL V. BOWMAN, 189 App. Div. 386, Nov. 12, 1919.
H. T. KELLOGG, J.: The claimant was injured by a fall from a ladder which he had mounted for the purpose of picking apples from a tree, and the question in the case is whether or not he was at the time a farm laborer, and as such not entitled to compensation under the exceptions contained in the Workmen's Compensation Law. The employer was a building contractor and speculator, who had bought the farm where the tree stood, for the purpose of improving the place, and eventually making a sale of the farm at a profit. He made his purchase in May, 1918, and through the days from then until the fifth of October following, when the accident occurred, he erected a cow stable 100 feet long by 30 feet wide, built a silo, and made various other improvements. During all this time the claimant was engaged in carrying lumber, mixing cement and doing other odd jobs. There were 120 acres in the farm, but it had not been cultivated or occupied for fifteen years. There