
    (94 Misc. Rep. 612)
    LINDEBAUER v. WEINER.
    (Niagara County Court.
    March, 1916.)
    1. Pleading <£=>343—Motions—Judgment on Pleadings.
    The sufficiency of a demurrer may in a proper case be tested by a motion for judgment on the pleadings, authorized by Code Civ. Proc. § 547.
    [Ed. Note.—Por other cases, see Pleading, Cent. Dig. §§ 1048-1051; Dec. Dig. <£=>343.1
    <§^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    
      2. Pleading <©=>217(2)—Demurrer—Eeeect as Opening Record.
    A demurrer to an answer for insufficiency will not lie, if the plaintiff does not state facts sufficient to constitute a cause of action.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 537, 542, 548; Dec. Dig. <©=>217(2).]
    3. Master and Servant <©=>348—Injuries to Servant—Liability op Master
    —Negligence.
    Workmen’s Compensation Law (Consol. Laws, c. 67) § 11, authorizing an action by a servant for injuries as an alternative remedy, where the employer has not secured the payment of compensation for his injured employes, does not authorize a recovery in such action, in the absence of negligence of the employer.
    [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. <©=>348.]
    <§=^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests <& Indexes
    Action by Herman Lindebauer against Edward Weiner. Motion by plaintiff for judgment on the pleadings denied, and demurrer to answer overruled.
    Smith & Maldiner, of North Tonawanda (Frank J. Maldiner, of North Tonawanda, of counsel), for. plaintiff.
    A. E. Ouchie, of Eggertsville (M. A. Gearon, of Buffalo, of counsel), for defendant.
   FISH, J.

Motion for judgment on the pleadings pursuant to section 547 of the Code of Civil Procedure. The action is by servant against master to recover damages received in assisting in the operation of a threshing machine while in the employ of the master. The complaint alleges that the plaintiff was employed by the defendant to assist in the operation of a threshing machine; that in October, 1914, while the plaintiff was in such employ, working upon such machine, assisting in the operation and standing upon.the steps thereof, the defendant caused a threshing engine to he backed up against and upon the plaintiff in such a manner as to crush plaintiff’s left leg against an iron bar, thereby injuring such leg; then follow allegations as to the extent of such injuries, and that the plaintiff was compelled to incur expenses for medical aid and treatment; also that the defendant had not secured compensation as provided in section 50 of the Workmen’s Compensation Law, and that the plaintiff suffered damages in the sum of $500, to recover which the action is brought.

There is no allegation of any negligence on the part of the defendant. The answer admits the employment and that the plaintiff was slightly injured, but denies the extent of the injuries alleged in the complaint, and denies that the plaintiff was compelled to incur expenses for medical aid and treatment. The answer in a separate paragraph alleges that the plaintiff was at the time under the influence of intoxicating liquors, and that his injury was solely the result of his intoxication; also that the injury resulted solely from the plaintiff’s own negligence, and not from any act or omission of the defendant. The plaintiff demurred to the answer on the ground that it is insufficient in law to constitute a defense.

This action is brought, as stated in the brief of plaintiff’s counsel, under section 11 of article 2 of the Workmen’s Compensation Law, and it is claimed by plaintiff that the operation of a threshing machine is a hazardous employment within group 41 of section 2 of article 1 of the act, which reads as follows:

“Group 41. 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.”

The sufficiency of a demurrer may in a proper case be tested by a motion under said section of the Code and an issue of law raised thereby tried upon the merits. Delmar v. Kinderhook Knitting Co., 134 App. Div. 558, 119 N. Y. Supp. 705; Posner v. Rosenberg, 149 App. Div. 272, 133 N. Y. Supp. 704.

This demurrer, however, must be overruled for the following reasons: •

(1) It is well settled that a demurrer to an answer for insufficiency will not lie, if the plaintiff does not state facts sufficient to constitute a cause of action (Baxter v. McDonnell, 154 N. Y. 436, 48 N. E. 816), as “a bad answer is good enough for a bad complaint.” There is no allegation in the complaint that the injuries complained of were occasioned by any fault of the defendant. At common law the liability of the master for an injury to his servant while engaged in the master’s work is based on the fault of the master, and without fault there was no liability (Ives v. South Buffalo R. Co., 201 N. Y. 272, 94 N. E. 431, 34 L. R. A. [N. S.] 162, Ann. Cas. 1912B, 156), and I do not think it was the intention of the Legislature to change the common law in this respect as to the alternative remedy by action provided for in said section 11. In the very preceding section, in prescribing liability for the compensation, it is provided that every employer shall pay or furnish compensation in accordance with the act “without regard to fault as a cause of such injury”; and if it had been the intent to create an alternative remedy by action not based on the master’s fault the Legislature would have so stated. In such an action they expressly destroy the defense of contributory negligence, negligence of a fellow servant, and assumed risk, and make it unnecessary for plaintiff to plead or prove freedom from contributory negligence so far as they change the common law, but no further. In so far as this statute provided for compensation to injured workmen, it is to be construed with fair liberality to accomplish its beneficent purposes. Matter of Petrie, 215 N. Y. 335, 109 N. E. 549. Those purposes appear in the report of the Wainwright commission to the Legislature of 1910, and are stated by Judge Woodward in Matter of Rheinwald v. Builders’ Brick & Supply Co., 168 App. Div. 425, 153 N. Y. Supp. 598.

The reason for the act rests upon a fundamental principle of government first advocated by Bismarck in Germany in about the year 1880 and later by Lord Salisbury in England. That fundamental principle is that in a modern industrial state the risk of injury to workmen while engaged in the employer’s service is a social risk, chargeable against the business itself, the losses arising from which are to be added to the productive cost and to be borne ultimately lw the community at large. This principle has been generally accepted in Europe for years, and is regarded by sociological writers as a forward step in the progress and development of a civilized state. It permits an injured workman, or in the event of his death his dependents, to demand' as a right that which they were often compelled to ask as a charity, with the ultimate costs in either event upon the community. The purposes of the act are to provide compensation for injuries sustained or deaths incurred by employes in the hazardous employments specified in the statute without regard to fault as a cause thereof. The plaintiff, however, does not seek compensation under the act, but avails himself of the alternative remedy by action, in which his damages could be assessed by a jury, and it is a well-settled rule that statutes will not be construed as changing the common law unless the intention to make such a change clearly appears. Wood v. Tunnicliff, 74 N. Y: 43.

(2) The answer denies the extent of the plaintiff’s injuries, and thus raises an issue of fact to be tried out. It is unnecessary to determine at this time whether the operation of a threshing machine is a hazardous employment referred to in the Workmen’s Compensation Law. That question would seem to depend upon whether it is a vehicle, within the meaning of the term “other vehicles,” as such term appears in said group 41.

Motion denied, and demurrer overruled, with $10 costs.  