
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Anna de la Gardelle, Claimant, Appellant, for Compensation to Herself and Child, under the Workmen’s Compensation Law, for the Death of Peter de la Gardelle, v. The Hampton Company, Employer, and Fidelity and Deposit Company of Maryland, Insurance Carrier, Respondents.
    Third Department,
    May 5, 1915.
    Master and servant — workmen’s compensation — statute construed — cutting up meat not hazardous employment.
    A butcher or assistant chef employed at a hotel to cut up and prepare meat for delivery to cooks as ordered, is not engaged in a hazardous occupation within the meaning of the Workmen’s Compensation Law, which does not cover the ordinary preparation of food for cooking purposes. Hence, where the death of such butcher was caused by a wound from a knife accidentally received while he was preparing meat, his widow is not entitled to an award under the statute.
    Appeal by Anna de la Gardelle, claimant, from an order of the Workmen’s Compensation Commission, entered in the office of said Commission on the 16th day of November, 1914, dismissing her claim herein, and also from the conclusions of fact, rulings of law and decision of said Commission bearing date the 17th day of November, 1914.
    
      
      Joseph M. Gazzam and Richard E. Nebel, for the appellant.
    
      Walter G. Evans, for the respondents The Hampton Company and Fidelity and Deposit Company of Maryland.
    
      Egburt E. Woodbury, Attorney-General [Jeremiah F. Connor of counsel], for the Commission.
   Lyon, J.:

The deceased was employed as a butcher, or assistant to the chef, at the Hampton Hotel in Albany. His duty was the distribution of meats to the cooks as ordered. While boning a leg of mutton on the butcher block, his knife accidentally slipped and severed an artery in his groin, resulting in femoral hemorrhage, causing his death.

Concededly, his death arose out of and in the course of his employment, and was not occasioned by any of the excepted causes stated in the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1913, chap. 816, as re-enacted and amended by Laws of 1914, chap. 41, and amd. by Laws of 1914, chap. 316).

The Hampton Company had secured compensation to its employees by insuring with the Fidelity and Deposit Company of Maryland. His widow, as dependent upon her husband for support at the time of his death, presented a claim for compensation. After a hearing duly had, the Compensation Commission, holding that the deceased was not engaged in a hazardous employment within the meaning of the State Workmen’s Compensation Law, unanimously denied the claim of the widow for compensation. From such decision this appeal has been taken.

The appellant contends that the deceased was engaged in a hazardous employment embraced within groups 30 and 33 of section 2 of the Workmen’s Compensation Law, which read as follows: “ Group 30. Packing houses, abattoirs, manufacture or preparation of meats or meat products or glue.” “Group 33. Canning or preparation of fruit, vegetables, fish or food stuffs; pickle factories and sugar refineries.”

It was the opinion of the Commission that the preparation of meats and the preparation of food stuffs, as the word “ preparation” was used in section 2 of the Workmen’s Compensation Law, did not mean the ordinary preparation of meat or food stuffs for cooking purposes, but involved a preparation by some mechanical device, or a preparation which either changed the form of the material to render it suitable for use, or changed the nature of the material for the same purpose. Under this construction of the law, the Commission denied the claim of appellant for compensation.

We think the claimant was not entitled to compensation, and that the determination of the Workmen’s Compensation Commission should be affirmed, but without costs.

All concurred; Woodward, J., in opinion.

Woodward, J. (concurring):

I concur and vote to affirm the unanimous determination of the State Workmen’s Compensation Commission that the claimant’s husband was not, at the time of the mishap which inflicted upon him mortal injury, engaged in an employment which the Legislature has designated as “hazardous.” As the result of extensive investigations, conducted under legislative authority by the so-called Wainwright Commission, the State Factory Investigating Commission and the State Department of Labor, the Legislature enacted in 1914 the Workmen’s Compensation Law (Consol. Laws, chap. 61 [Laws of 1914, chap. 41], as amd. by Laws of 1914, chap. 316), embodying a new plan, theory and basis of indemnity to workmen for loss of earnings occasioned by accidents occurring in the course of employment found to be inherently hazardous. (Matter of Rheinwald v. Builders’ Brick & Supply Co., 168 App. Div. 425, decided May, 1915.)

Within the employments determined by the Legislature to be “hazardous,” and consequently designated by it as embraced within the purview of the statute, the latter should bé beneficially construed to effectuate the legislative purpose, but it is no function of this court to extend by judicial determination the category of occupations entitled to the protection of the statute. Determination as to what employments shall be brought within the operation of the Workmen’s Compensation Law involves questions of fact and questions of policy which the Legislature and Governor must determine. This court is without power or information entitling or enabling it to alter or extend the legislative determination.

Groups 30 and 33 of section 2 of the statute under consideration, which enumerates and defines hazardous employments, cannot, in my judgment, be regarded as covering any employment consisting of the preparation of meat or food stuffs for cooking purposes, in the ordinary course of household duties, domestic service or the conduct of hotels or restaurants in which meats or foods are prepared and cooked for eating on the premises. These groups, as phrased by the Legislature, relate obviously to employment in industrial establishments or manufactories where meats, fruits, vegetables and similar food stuffs are prepared for sale for consumption elsewhere. The Legislature cannot fairly be deemed to have brought within the purview of group 30 or 33 those workers who sustain injury in the ordinary course of the preparation of food for cooking in the kitchens of private residences or public restaurants. If it is deemed socially desirable that the statute be extended to any of those avocations the recommendation should he addressed to the Legislature and not to the court.

Determination of Workmen’s Compensation Commission confirmed.  