[Vol. 15] State Industrial Commission pened after the bankruptcy of the Shevlin Manufacturing Company and while Mr. Eliason was in charge as either receiver or trustee in bankruptcy, and the Appellate Division and Court of Appeals both held that the Zurich was liable under its policy. Thus, in the Hargraves case it appears on page 5 of the Court of Appeals record that the accident to Mr. Hargraves happened on the 17th day of December, 1915, and on page 14 of that record it appears that Mr. Eliason was appointed receiver in bankruptcy on September 1, 1915, and trustee in bankruptcy on the 24th of November, 1915, so that the question was squarely presented by the record in the Hargraves case. It is claimed by the representative of the Zurich Insurance Company that this point was not briefed or argued in either the Appellate Division or the Court of Appeals and that it was therefore probably overlooked, but the testimony in the Hargraves case was stipulated into the record in the present case. We, therefore, have a case here where the proofs are identical with the proofs submitted in a case which has passed the scrutiny of both the Appellate Division and the Court of Appeals, and while it may be true that through some oversight the court's attention was not called to the legal situation of the Zurich Company, growing out of the bankruptcy. of the Shevlin Manufacturing Company, it does not seem to me that this Commission can take the view that those courts overlooked the point, but that the remedy of the Zurich Company, if it have any, is by an appeal to those courts where the questions can be presented de novo and where the oversight can be corrected, if it be one. I think, therefore, that the application of the Zurich to have the award vacated must be denied and the award made by the deputy must be affirmed. On the 14th day of March, 1918, the Commission acted on the foregoing matter in accordance with the foregoing opinion. Commissioners Sayer and Lynch do not concur as to the bankruptcy policy, and ask to go on the record as holding that the policy continue in force until the company sees fit to make any proper cancellation in the case. State Industrial Commission [Vol. 15] In the Matter of the Claim of MILO STRAIGHT, for Compensation under the Workmen's Compensation Law, against DAVID W. STEARNS, Employer; EMPLOYERS LIABILITY INSURANCE COMPANY, Insurance Carrier Albany Death File No. 35542 (Decided March 14, 1918) Injuries sustained by Milo Straight, resulting in his death, while hauling timber in the woods for David W. Stearns. The deceased, Milo Straight, was employed by Edward Wakeley to work at two dollars a day as a driver in hauling lumber out of woodlands being lumbered by Wakeley for David W. Stearns, the owner of said lands. Wakeley in securing help in taking out the lumber practically acted as foreman on the job. Stearns, the lumberman, carried workmen's compensation insurance; Wakeley, who was a farmer, and in the matter of taking out the lumber was a foreman, did not have such insurance. Held, that while Wakeley, in hiring Straight, became his general employer, to whom he could look for his wages, nevertheless as the business of lumbering was a hazardous one that the hazard of the business was the obligation of Stearns, who was the special employer. Stearns knew this and for that reason had taken out compensation insurance in compliance with the law. Held, also, that both Straight and Wakeley were for the time being employees of Stearns, the special employer, and either of them might look to Stearns for compensation for injuries received in the course of that employment. An award was made. Milo Straight was killed while hauling timber in the woods for David W. Stearns. The accident occurred on June 21, 1917. The employment was covered by the Compensation Law, and the accident arose out of and in the course of such employment. Stearns was a lumberman and during the season employed numbers of men in the woods and at the mill. He employed as a foreman in the woods Edward Wakeley, a farmer of the locality, who was accustomed to going into the woods each year in the logging season. Wakeley had authority to obtain the necessary men, and he hired Milo Straight, a driver, who had formerly been employed by him on his farm, to work at two dollars a day. Stearns also rented a team from Wakeley. Straight was to drive the team, and Wakeley was paid five dollars a day for the team and driver, and board for the driver. Out of the five dollars was to be paid Straight's wages of two dollars. It appears that on at least one day the deceased worked in the mill and was not engaged in driving. It appears that while Straight had at various times worked for Wakeley, he had not been so employed for about one month prior to the time he was hired to go into the woods. Stearns, the lumberman, carried workmen's compensation insurance. Wakeley, the farmer, and acting foreman on the job, did not. W. L. Tufts and A. B. Ahearn, for the Employers Liability Insurance Company. Frank D. Morehouse, for Edward Wakeley. SAYER, Commissioner. It is contended here that this is a case of a general and special employer and that the Commission should award the compensation against the general employer. Wakeley, the foreman, who rented his team and driver to Stearns, was the general employer. The business upon which they were engaged was the business of Stearns, the lumberman. The hazard of the employment was the hazard of Stearns' business. The accident was that of a falling log and is an accident more connected with a lumbering operation than with that of farming or of driving a vehicle. Stearns, the special employer, knew his employment was hazardous and he complied with the law by securing the payment of compensation to his workmen. Wakeley, the general employer, was for the purpose of this lumbering operation the foreman and agent of Stearns. He directed Straight's work, but not as Straight's employer, but rather as the foreman for Stearns. Wakeley himself was working for wages for Stearns. State Industrial Commission [Vol. 15] As an employee may under the common law of master and servant look to his general employer for his wages, and to his special employer for damages for negligent injuries, so under the Workmen's Compensation Law he may so far as its provisions are applicable look to the one or to the other, or to both, for com pensation for injuries due to occupational hazards, and this Commission may make such an award as the facts in the particular case may justify. Matter of Denoyer v. Cavanaugh, 221 N. Y. 273; Miller v. North Hudson Contracting Co., 166 App. Div. 348. It is true that this Commission has in some instances awarded compensation against the general employer, as the Court of Appeals has said in Matter of Denoyer, supra: "The Industrial Commission, therefore, has full power to make an award against the general employer. It does not follow that by the application of this rule the special employer is not to be held in any case. * * * If the men are under the exclusive control of the special employer in the performance of work which is a part of his business, they are, for the time being, his employees." In this particular case, both the injured employee and the general employer himself, were for the time being employees of Stearns, the special employer, and either of them might look to Stearns for compensation for injuries received in the course of that employment. It appears from the testimony that in the vicinity in which this accident occurred in the conduct of the lumbering industry, practically seventy-five per cent of the teams supplied on lumbering jobs are furnished by the farmers in the neighborhood, and that the farmers owning and supplying such teams do not customarily carry compensation insurance on the drivers of the teams supplied. On the contrary, it is customary for the lumbermen to insure such risks. In the case of Sullivan v. Preston, 177 App. Div. 110, the local custom of hiring workmen in the lumbering business was considered as controlling. Moreover, the general employment of Straight by Wakeley was [Vol. 15] State Industrial Commission an employment at farm labor, which industry is specifically excluded from the Compensation Law. The hazardous business was that of Stearns. The profit in the business was to go to him. I am of the opinion that the facts and circumstances in this case justify an award against Stearns, and I so advise. On the 14th day of March, 1918, the Commission acted on the foregoing matter in accordance with the foregoing opinion. In the Matter of the Claim of MARY K. WOODRUFF, Widow, for Compensation under the Workmen's Compensation Law, for the Death of JOHN C. WOODRUFF, against L. K. COMSTOCK, Employer; TRAVELERS' INSURANCE COMPANY, Insurance Carrier Case No. 38787 (Decided March 14, 1918) Injuries sustained by John C. Woodruff, resulting in his death, while employed by L. K. Comstock in hoisting iron pipe. On March 19, 1917, the deceased was engaged with one Meltcher in hoisting, by means of a block and fall, four-inch iron pipes about ten feet long. Meltcher, who was in the basement of the premises where they were at work, attached the pipes to a rope and Woodruff, on the fifth floor, was swinging the pipe onto the floor, both men pulling on the other end of the rope which passed through the block and fall. The pieces of pipe weighed about 160 or 170 pounds each. When the pipe had been lifted to about the level of the fifth floor Woodruff shouted "All right" and was about to swing the pipe onto the floor when the pipe suddenly fell to the basement with such force as to lift the other man completely off his feet. On investigating Woodruff was found on the fifth floor dead. The deceased had not been in good health but apparently died from heart trouble. The question here is as to whether his death was the result of an industrial accident. Held, that the lifting of one-half of the weight of this pipe involved a heavy strain and the bad heart condition was increased by this strain, bringing the life of the workman to a close at an earlier period than would otherwise have been the case. An award was made. |