Appeal from State Industrial Board. Proceeding by Samuel Crockett for an award under the Workmen's Compensation Law, opposed by F. T. Coppino & Sons, employer, and the Travelers' Insurance Company, insurance carrier. From an award of total disability by the State Industrial Board, employer and insurance carrier appeal. Reversed and remitted. Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk, and Hinman, JJ. Benjamin C. Loder, of New York City (W. B. Davis, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Board. COCHRANE, P. J. The awards were made, as appears from the findings, because of total permanent disability. The case must therefore be considered with reference to section 15, subd. 1, of the statute (Consol. Laws, c. 67). Claimant has lost the use of his right foot, but not the entire use of the left foot. The case depends, then, on the last sentence of the subdivision, viz.: "In all other cases permanent total disability shall be determined in accordance with the facts." At the time of the accident claimant was 50 years old. He walks with the aid of crutches. Only one witness was examined, except that a few unimportant questions were asked of the claimant. That witness was a physician, and his testimony conclusively shows that the claimant can do any work for which he is or may be adapted, and which does not involve the use of his feet. I cannot see, therefore, any room for finding that he is totally disabled. In regard to "permanent partial disability," under the "other cases" clause of subdivision 3 of section 15, which properly includes this case, it is apparent that the claimant has some wage-earning capacity, which has not been determined by the board. I think the case should be returned to the board for disposition on the proper basis. Award reversed, and matter remitted to the State Industrial Board, with costs to the appellants against the State Industrial Board to abide the event. All concur, except Henry T. Kellogg, J., dissenting with a memorandum, in which Kiley, J., concurs. HENRY T. KELLOGG, J. (dissenting). The claimant, while working upon an electric lamp, mounted on a column 20 feet high, accidentally fell to the ground and sustained serious injuries, including fractures of the bones of his feet and ankles. The accident occurred on October 26, 1915, and numerous awards were thereafter made to claimant, prior to May, 1921, from which no appeals were taken. Under such awards he was paid $14.42 per week for 290 weeks, or more than the sum of $4,000. Further awards were made in May, 1921, and January, 1922, continuing the weekly payments previously awarded as for permanent total disability. From these awards the employer and insurance carrier have appealed. We may eliminate from consideration the two classes of disability designated by the Workmen's Compensation Law, "temporary total disability" and "temporary partial disability." W. C. L. § 15. For either of these disabilities payments in excess of $3,500 may not be made. Claimant had already been awarded, and had actually received, more than that sum when the awards appealed from were granted. The awards can be sustained, therefore, only provided the disability in question can be classed as a "total permanent disability" or a "permanent partial disability." It is said that a case of the former is not presented, because there has not been a total loss, or total loss of use, of both feet. This is an erroneous view. A disability which is permanent and total may be established, "in the absence of conclusive proof to the contrary" (W. C. L. § 15), by the loss, or loss of use, of certain pairs of physical members, such as the feet. It may, however, be proven otherwise, for the law says: "In all other cases permanent_total_disability shall be determined in accordance with the facts." W. C. L. § 15, subd. 1. It is undisputed that the claimant has entirely and permanently lost the use of his right foot, and that he has sustained a 40 per cent loss of use of the left foot. As a consequence he can never work upon his feet and can never walk without crutches. The only work which he may do will be with his hands, while sitting down. His disability is as total and as permanent, therefore, as if both feet were lost. It is also said that the claimant was debarred from a further award as for "permanent partial disability" on account of the total loss of one foot, because for that specific injury an award for more than 205 weeks is not permitted, and the claimant had already been paid for 290 weeks. It is true that the claimant had been paid for more weeks than is permissible for the loss of one foot; but it is not true that his loss, though it may have been partial, was not in excess of one foot. At the time of the accident, which was in October, 1915, there was no provision for an award for a proportionate loss of use of a member, so that for the partial loss of the left foot a specific sum for a specific number of weeks could not have been calculated to be due, in addition to the amount payable for the total loss of the right foot. However, it was then provided in the law, as now, that "in all other cases in this class of disability" the compensation should be based on the difference between the employee's average weekly wages and his wage-earning capacity thereafter, "payable during the continuance of such partial disability." It was evidently contemplated that, in the case of a loss which was greater than the loss of one physical member, but not so great as the loss of two members, resort might be had to this provision to secure compensation in excess of that provided for in the arbitrary schedules of the subdivision. It is fairly clear from the nature of the injuries sustained by the claimant, and from other proof given in the case, that the claimant has no present wage-earning capacity. In this event the claimant would be entitled to two-thirds of his average weekly wages during the continuance of his disability. The same would be true, if we regarded the disability of claimant to be total, rather than partial. It is immaterial, therefore, whether we classify the claimant's disability as "total permanent" or as "permanent partial," for in either event he would be entitled to precisely the award which has been made to him. The award should be affirmed, with costs to the Industrial Commission. DRAPER v. W. H. DRAPER & SONS, INC., ET AL. (New York Supreme Court, Appellate Division, Third Department. July. 6, 1922.) 195 New York Supplement, 162. 2. MASTER AND SERVANT-STATUTE PREVENTING TERMINATION OF COMPENSATION BY DEATH CONSTRUED PROSPECTIVELY. The amendment of Workmen's Compensation Law by Laws 1920, c. 532, providing that a disability award shall be payable to claimant's widow and children, does not apply to an award made after the date on which the amendment becomes effective for an injury occurring before that date, and gives claimant's widow no right to payments falling due after his death from causes other than the injury. (For other cases, see Master and Servant, Dec. Dig. § 349.) Appeal from State Industrial Board. Proceeding under the Workmen's Compensation Law by Lucy C. Draper against W. H. Draper & Sons, Inc., employer, and the Employers' Liability Assurance Corporation, insurance carrier, for compensation for the death of Charles E. Draper. From an award of the State Industrial Board, directing payment to Lucy C. Draper of the balance of an award made to the injured employee during his lifetime for partial permanent disability, the employer and the insurance carrier appeal. Award reversed, and claim dismissed. Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk, and Hinman, JJ. Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for Industrial Board. HENRY T. KELLOGG, J. An award of $17.03 for 219.6 weeks of disability was made to claimant's intestate on June 23, 1920, for an accidental injury occurring on March 3, 1920. The claimant's intestate came to his death on July 5, 1921, from causes other than his accidental injury. In November, 1921, an award was made to his widow for the balance of the weekly payments under the original award, which had accrued after his death and would thereafter accrue. From this award an appeal was taken. [1] It was formerly the law that, in the case of an award for a specific number of weeks of disability to an employee who thereafter died, no sums which under the terms of the award would fall due after his death became payable to his widow or next of kin. Wonzneak v. Buffalo Gas Co., 175 App. Div. 268, 161 N. Y. Supp. 675. Chapter_532 of the Laws of 1920 amended the Workmen's Compensation Law (Consol. Laws, c. 67) to provide otherwise. This act became effective on May 5, 1920, which was intermediate the date of the accident and the date of the award in this case. It provides that “an award made to a claimant under this subdivision shall in case of his death" be payable to the surviving wife of the claimant, if there are no children, and otherwise to the wife and children. The question here arising is whether or not this act applied to affect this claim, which arose out of an accidental injury sustained previously to its passage. "All statutes are to be construed prospectively, and not retrospectively, unless they are otherwise incapable of a reasonable construction." Per Salvage, C. J., in Hackley v. Sprague, 10 Wend. 113. "It is always to be presumed that a law was intended, as its legitimate office, to furnish a rule of future action to be applied to cases arising subsequent to its enactment. A law is never to have retroactive effect, unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only." Per Earl, J.. in N. Y. & Oswego M. R. Co. v. Van Horn, 57 N. Y. 473, at page 477. In Dash v. Van Kleeck, 7 Johns. 447, 499 (5 Am. Dec. 291), Kent, C. J., in holding that a statute was not retroactive, said that a "statute ought never to receive such a construction, if it be susceptible of any other." This doctrine has been restated in numberless cases, of which the following are a few: Matter of Miller's Estate, 110 N. Y. 216, 18 N. E. 139; Quinlan v. Welch, 141 N. Y. 158, 36 N. E. 12; Geneva & Waterloo Ry. Co., v. New York Cent. & H. R. R. Co., 163 N. Y. 228, 57 N .E. 498; Germania Savings Bank of Kings County v. Village of Suspension Bridge, 159 N. Y. 362, 54 N. E. 33. There may be exceptions to the rule, where remedies are afforded relating to the enforcement of previously existing legal or equitable rights. With such execeptions we are not here concerned. [2] When the claimant's intestate sustained his injury, he became entitled to an award for 219.6 weeks of disability, subject to termination by his death. The employer and the insurance carrier then became obligated to make payments during such period, subject to such termination. The rights of the parties then became fixed, and no statute subsequently passed should be construed to have the effect of enlarging or diminishing such rights or obligations. We think that no award could properly have been made for payments falling due after the death of the death of the claimant's intestate. The award should be reversed, and the claim dismissed. All concur. HAMBERG v. FLOWER CITY SPECIALTY CO. ET AL. (New York Supreme Court, Appellate Division, Third Department. July 6, 1922.) 195 New York Supplement, 170. MASTER AND SERVANT INJURY TO EMPLOYEE VIOLATING RULES NOT COMPENSABLE, BECAUSE NOT ARISING IN "COURSE OF EMPLOYMENT." Where an employee was killed while using a freight elevator to go from one floor to another, in violation of the employer's rules, such accident did not arise in the "course of employment" within Workmen's Compensation Law, § 3, subd. 7. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) Appeal from Award of State Industrial Board. Proceeding under the Workmen's Compensation Law for the death of Yetta Hamberg, opposed by the Flower City Specialty Company, employer, and the United States Fidelity & Guaranty Company, insurance carrier. From an award of the State Industrial Board in favor of claimant, the employer and insurer appeal. Reversed, and claim dismissed. Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk, and Hinman, JJ. Chester McNeil, of Buffalo, for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. KILEY, J. The employer is a corporation manufacturing paper boxes in the city of Rochester. Its business is located and carried on in a four-story building which it owned. With one other tenant, it occupied the whole block. It maintained an elevator for the use of the occupants of said block, which was designated as a freight elevator. On the 18th day of October, 1919, claimant's intestate, a daughter 15 years of age, worked for this company. The place of her work in said block was on the fourth floor. The hours were from 7:30 a. m. to 5 p. m. The way provided for the help to reach the upper floor in said block was by a stairway. The evidence discloses that the girl employees of the block, at times, used the elevator to get up and down to and from their respective positions in the establishment. On the day in question, and about 7:10 a. m., the man who ran the elevator had stopped it at the second floor, locked it, and had gone away from it. Claimant's intestate checked in at the first floor at about that time, and went up the stairs to the second floor, unlocked the elevator and started it upwards, was caught between it and the floor, and killed. Claimant, as a dependent, was given an award. Appellants object to the award upon the ground that the accident did not arise out of and in the course of her employment, and that there was no dependency proven on part of the claimant. The first objection is good. While at different times girls, among them this girl, had used the elevator, and had been instructed by other girls in this employment how to operate it, it affirmatively appears that this girl had been told to keep away from the elevator. She was not engaged in any work for the benefit of her employer, but, on the contrary, was endeavoring to favor herself by avoiding the extra effort she would have to make going up the two flights of stairs. Under such circumstances the courts have held a claimant, or a claimant's intestate, was not acting in the course of the employment, and was not engaged in the work for which she was employed. Matter of Rendino v. Continental Can Co., 186 App. Div. 924, 172 N. Y. Supp. 916, reversed 226 N. Y. 565, 123 N. E. 886. In the above-cited case a boy 17 years old, after finishing his day's work, attempted to operate a stamping machine, in violation of the orders of his employer, and was injured; held, he could not recover compensation. In Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766, the claimant left his post and went across the room in which he was working to say good-bye to a fellow employee, who was going away to enter the army. He was injured while away from his station in the employment, but in the same room. It was held that the accident did not arise out of and in the course of his employment. Subdivision 7, section 3 of the Workmen's Compensation Law (Consol. Laws, c. 67) is construed in Gifford v. T. G. Patterson, Ins., 222 N. Y. 4, 117 N. E. 946, 6 A. L. R. 576, contrary to the contention of respondents. The award should be reversed, and claim dismissed, with costs against the State Industrial Board. All concur. AVELLINO v. McKEE REFRIGERATOR CO. ET AL. (New York Supreme Court, Appellate Division, Third Department. July 6, 1922.) 195 New York Supplement, 171. MASTER AND SERVANT COMPENSATION CLAIMANT'S FAILURE TO GIVE "NOTICE" HELD NOT EXCUSABLE. Information of an injury to an employee of a corporation, given to its foreman or superintendent, does not constitute notice to it, in the 40 Vol. X-Comp. |