
    In the Matter of the Claim of Warren P. Hunt, Respondent, against Regent Development Corporation et al., Appellants, and Butterly & Green et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued May 7, 1957;
    decided July 3, 1957.
    
      Robert N. Van Benthuysen for appellants.
    
      Charles J. Jones for Butterly & Green and another, respondents.
   Fuld, J.

Warren Hunt was employed as a night watchman by two companies, Regent Development Corporation and Butterly & Green, to guard their respective properties, located but a block or so apart. He .received wages of $30 a week from Regent and $50 a week from Butterly. While on one of his tours of duty, he was injured in a fight that occurred on the Butterly property. Although he spent most of his hours on those grounds, where a watchman’s shack stood, he was able to keep the nearby Regent premises under surveillance and, in addition, he physically toured this latter property several times a night.

Concededly, Hunt’s injuries were accidental and, concededly, they arose out of and in the course of his employment. The Workmen’s Compensation Board awarded him compensation, declaring that “ liability rests equally with both employers.” The Appellate Division affirmed and, on this appeal, no one disputes that Hunt is entitled to the compensation awarded. The contest is solely between the employers, Regent contending, first, that Butterly alone is liable since the accident occurred on its property and, second, that, if it is responsible along with Butterly, the award should be apportioned rather than divided equally between them.

Where two employers share an employee who is injured, in the course of his employment, on the property of one of them, it is only proper that they also share the compensation to be paid. Nice differentiations over borderline activities are completely out of place and, unless the employee’s duties to each are so separate and distinct in time or place that the employment is capable of identification as that of only one employer, both are to be held liable. (See, e.g., Matter of Stevens v. Hull Grummond & Co., 274 N. Y. 227; Matter of Cyrus v. Modart Constr. Co., 283 App. Div. 368; Page Eng. Co. v. Industrial Comm., 322 Ill. 60; see, also, 1 Larsen on Workmen’s Compensation Law [1952], § 48.50, pp. 721-722.) Without detailing again the facts which demonstrate that at no time was Hunt completely disengaged from performing the duties owed to each employer, it is enough to say that this is a case of joint employment and that each must contribute in paying the award.

We are brought, then, to the question of apportionment of liability. In cases where one employer pays higher wages than the other, to require them both to share equally in the award would always require the lower-paying employer to bear a portion of the other’s compensation burden, and might on occasion result in one employer’s paying the claimant an amount of compensation out of all proportion to the wage which he had paid, indeed, a larger amount than the wage itself. It is both fair and logical, therefore, that both employers be liable for compensation to the claimant in proportion to the remuneration paid by each, and such, we note, has been the rule, not only in this state (see Matter of Stevens v. Hull Grummond & Co., supra, 274 N. Y. 227), but in the other jurisdictions which have had occasion to pass on the matter. (See Butler v. Industrial Comm., 50 Ariz. 516, 525; Press Pub. Co. v. Industrial Acc. Comm., 190 Cal. 114, 116; Wing v. Clark Equipment Co., 286 Mich. 343, 349-350; Schaefer & Co. v. Industrial Comm., 185 Wis. 317, 320; Note, 30 A. L. R. 1000, 1002; Note, 58 A. L. R. 1395, 1396; see, also, Riverside Mill Co. v. Parsons, 176 Tenn. 381, where apportionment is provided for by statute.) In the case before us, since Regent paid wages of $30 a week as compared with the $50 paid by Butterly, the award should be apportioned to reflect this ratio.

The order of the Appellate Division and the award of the Workmen’s Compensation Board should be modified and, as so modified, affirmed, with costs in this court and in the Appellate Division to Regent Development Corporation against Butterly & Green, and the matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with this opinion.

Desmond, J. (dissenting).

When a workman is injured while in the joint and concurrent employment of two employers, must the compensation award (in a case where the wages paid by the two employers are not equal) be charged against the employers in proportion to the respective wage scales 1 Both the Workmen’s Compensation Board and the Appellate Division gave negative answers to that question, holding that ‘ ‘ The liability for payment of compensation ” in this particular case rests equally with both employers and insurance carriers.” Surely, that was a reasonable and just holding. Although the injured claimant was paid $30 per week by one employer and $50 per week by the other, he was not injured three-eighths in one employment and five-eighths in the other but jointly, concurrently and equally in the two employments carried on inseparably and simultaneously. We should, therefore, affirm the order below unless it violates some rule of law. I find no such rule.

Apportionment of awards as against joint employers is just the sort of question that should be left to the board to decide case by case on the facts and the equities (Workmen’s Compensation Law, § 20). The only possible basis for mandating an unequal sharing here is Matter of Stevens v. Hull Grummond & Co. (274 N. Y. 227) decided in 1937. The Stevens case, however, announced no universal rule of law requiring apportionment according to respective wages in every case of joint employment. The Stevens result was made necessary by a special situation not present in our case. The board had awarded to claimant Stevens $9.20 per week compensation and had directed that each of his two employers pay half thereof. But the $4.60 per week thus charged against employer Whipple, Inc., exceeded claimant’s $2.50 per week wages from that employer. Thus, the equal division ordered by the board in Stevens violated the express command of section 15 of the Workmen’s Compensation Law that compensation could not exceed two thirds of the wage. No such situation is in the present case. The equal division here ordered by the board and the Appellate Division resulted in a charge against each employer-carrier of $16 per week ($10 per week for certain periods) whereas the respective wages paid by the two employers had been $50 and $30 per week.

Where, as here, no rule of law controls, the question as to whether to apportion equally or otherwise against joint employers is one of fact or equity, dependent on the circumstances of each case. None of the out-of-State decisions cited in the majority opinion (except, possibly, Butler v. Industrial Comm., 50 Ariz. 516) support the supposed rule of law that there must in every case of joint employment be an apportionment of the award in accordance with wages. Such apportionment in Tennessee (Riverside Mill Co. v. Parsons, 176 Tenn. 381) is specifically compelled by a statute. In the California decision the approval of such an apportionment (Press Pub. Co. v. Industrial Acc. Comm., 190 Cal. 114; see, also, Hartford Acc. & Ind. Co. v. Industrial Acc. Comm., 202 Cal. 688) was made not on the law but as confirmation by the court of the commission’s factual decision. Likewise as to Schaefer & Co. v. Industrial Comm, (185 Wis. 317, 320). The Michigan case listed by Judge Fuld (Wing v. Clark Equipment Co., 286 Mich. 343) cites with approval Sargent v. Knowlson Co. (224 Mich. 686, 691) which confirmed and described as “manifestly fair and just” an equal division of an award made to a watchman employed by several employers at different rates of wage.

Since equal division is here, also, ‘ manifestly fair ana just ” and since it violates no rule of law the order appealed from should be affirmed, with costs.

Conway, Ch. J., Froessel, Van Voorhis and Burke, JJ., concur with Fuld, J.; Desmond, J., dissents in an opinion in which Dye, J., concurs.

Ordered accordingly.  