
    Before State Industrial Commission, Respondent. In the Matter of the Claim of Robert Lyon, Respondent, for Compensation for Himself under the Workmen’s Compensation Law, v. Rose Windsor and Robert Davis, Employers, and Zurich General Accident and Liability Insurance Company, Limited, Insurance Carrier, Appellants.
    Third Department,
    May 18, 1916.
    Workmen’s Compensation Law —when salesman not engaged in hazardous employment —test of employee’s right to protection of statute.
    A salesman who, in the course of his work of selling dresses, goes into a room on the same floor where they were being manufactured, not to participate in the manufacture or to perform any act incidental thereto, but merely to obtain a completed garment for exhibition to a customer in the adjoining show room, is not engaged in the1 ‘ manufacture of * * * women’s clothing, white wear * * * or robes,’’within the meaning of group 38 of section 2 of the Workmen’s Compensation Law, and the fact that such salesman slipped and fell while in the factory does not entitle him to an award.
    An employee’s occupation or actual work and not the employer’s business is the test of the former’s right to the protection of the statute.
    Kellogg, P. J., dissented, with memorandum.
    Appeal by Rose Windsor and others from an award of the State Industrial Commission, entered in the office of said Commission on or about the 5th day of August, 1915, and also from a further award and order entered therein on or about the 26th day of August, 1915. ■
    
      Alfred W. Andrews [John N. Carlisle of counsel], for the appellants.
    
      Egburt E. Woodbury, Attorney-General [Harold J. Hinman, Deputy Attorney-General, and Robert W. Bonynge, counsel to State Industrial Commission, of counsel], for the State Industrial Commission.
   Woodward, J.:

The award made by the State Industrial Commission must be set aside as unsustained by the findings or the evidence, and as based upon an erroneous conception of the Workmen’s Compensation Law.

The claimant was a salesman. His duties were performed, within the place of business of his employers, the firm of Windsor & Davis, copartners in the business of manufacturing dresses and women’s gowns. The claimant’s principal, if not exclusive, duties were those of salesmanship; he concededly had nothing to do, by way of either participation or supervision, with the actual manufacture of anything; the record contains nothing concretely indicating any duties or acts on the part of the claimant, beyond those ordinarily and reasonably incident to the performance of his regular work as salesman. He did no traveling for the employers; he ordinarily sold goods to customers in the showroom which was connected directly with the factory and was in the front part of the same building and on the same floor. The claimant’s duties took him frequently into the rooms where the manufacturing was actually carried on.

The only testimony adduced before the Workmen’s Compention Bureau of the State Industrial Commission, as explanatory of the circumstances of the accident which befell the claimant, was the following: “This accident happened during my duties which called me to the factory. * * * Q. You were attending to a customer when the accident happened? A. Yes. Q. The customer was in the showroom, and you were going into the factory ? A. Yes. * * * Q. What have you, a broken kneecap ? A. Yes.”

The employee’s “ first notice of injury ” stated as the “cause of accident ” that the claimant “fell on floor; ” the employee’s “ claim for compensation ” stated that the claimant “ fell on stone floor while passing through factory; ” the employers’ “ first report of injury ” stated that the claimant “was walking to a rack of dresses to get one to show to a customer, when he fell; ” but the only testimony adduced as to the liability or circumstances of the accident, the nature or extent of the injuries, or the duration or extent of the disability was that above quoted. Yet from this testimony the Commission very solemnly found asa “ conclusion of fact ” that “ While Robert Lyon * * * was passing through the factory, he slipped on a stone floor and fell, receiving a fracture of the right patella, by reason of which injury he was disabled from working from the date of the accident to August 6, 1915, and on that date was still disabled.”

Before considering the merits of the question essentially here at issue, viz., whether the claimant salesman was engaged in the “manufactureof * * * women’s clothing, white wear * * * or robes,” within the meaning of group 38 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), expression should be made of regret that the evidence taken in this case is so scanty and meagre, and that the findings and record alike are so barren of those details essential to an award under forms of law and in conformance to reasonable procedure. Altogether outside of the merits of the essential question at issue as above outlined, this award would necessarily be reversed and the proceeding remanded to the Commission for hearing, for the reason that by no possibility does the evidence warrant or sustain the findings of fact, nor do the so-called findings or conclusion of fact sustain the so-called rulings of law or the award predicated thereon. Money may not be taken, directly or indirectly, even from the purchasers of women’s apparel and the community at large (Matter of Rheinwald v. Builders’ Brick & Supply Co., 168 App. Div. 425) upon such a paucity of findings and proofs.

I prefer, however, to discuss the vital question on its merits, and here I find that by the claimant’s own statements of fact his injury did not occur under circumstances entitling him to the benefit of this salutary statute. The Legislature has not yet defined salesmanship, outdoor or indoor, as by nature a “hazardous ” employment; the Legislature has not yet placed the exhibition and selling of feminine apparel within the category of occupations enumerated in section 2. The situation at bar, therefore, falls fairly within the rule laid down by this court in Matter of Gleisner v. Gross & Herbener (170 App. Div. 37), where this court said:

“The actuahty, rather than the appellation, is the sound basis for the ■ Commission’s action in determining whether an employee met with mishap in the course of "an enumerated employment. If, within the scope of his duties, he was injured while actually and unmistakably doing, at the moment, work of a kind specifically defined in the statute as c hazardous,’ his right is clear; under other circumstances his right must depend on proof of facts regarding which the present findings and the present record are alike inadequate basis for affirming an award.
“The applicability of the enumerations or definitions of employments ’ deemed entitled to the protection of the statute is of course not to be determined narrowly and constrainedly, but rather in the reasonable and common sense manner essential to the vitality of the operation of the statute. If an employee is hired for work falling exclusively or predominantly within one or more of the enumerated occupations, his right to compensation for injury in the course of his employment cannot fairly be made to hinge on a finding that he was, at the moment of injury, engaged in an act clearly constituting the direct doing of work named in the act. The painter’s right to compensation for injury sustained at his daily trade does not depend on a showing that he was at the moment applying a brush, mixing paints, or mounting a scaffold. If an employee’s duties are exclusively or predominantly within an enumerated employment or employments, and he is injured while doing work fairly within the scope of the ordinary and accustomed fulfillment of such duties, he has a rightful claim, even though the particular act he was doing when mishap befell him would not, of and by itself, ordinarily be described by the use of phraseology contained in the statute or as the doing of work enumerated in the statute. To hold otherwise would defeat the fair purpose of the law, and make its operation hinge and its benefits depend on harsh, arbitrary and unworkable distinctions which would inevitably paralyze its practical workings. Where, however, as apparently here, the employee’s ordinary duties and accustomed scope of activities do not come exclusively* or predominantly within the category of enumerated employments, and only casually and incidentally does he do work fairly falling within that category, his right to remuneration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute. If the employer shows that the employee was not so engaged when he met with injury, he is not entitled to reimbursement under the statute, even though he at times did work embraced within the statute. ”

The claimant’s contention here is that a “salesman” becomes engaged in the “hazardous employment” of manufacturing dresses if, in the course of his work of selling dresses, he went into the place where dresses were being manufactured, even though the purpose of going there was not to participate in manufacture or perform any act incidental to any process of manufacture, but only to obtain a completed garment for exhibition to a customer in the adjoining showroom. To state the contention is to expose its unsoundness, in law and in common sense. The ordinary activities of salesmanship are not embraced with the “manufacture” of the article being sold. The claimant had nothing to do with manufacture, in the general round of his daily tasks; he was injured while doing what he ordinarily and often did; by no stretch of fact or fancy can he be said to have been, at the moment of injury or at any other moment, engaged in the “ manufacture ” of the article he sought for purposes of display and sale. A salesman does not become an artisan or a participant in any process of manufacture merely by crossing the threshold of a factory.

The contention of my learned colleague that this award should be sustained by this court seems to be based upon two fundamental misapprehensions, which derive an especial significance from the manner in which employers in this State most commonly “provide” for the payment of the statutory compensation. The first is that “evidence” to sustain findings and an award can be said to exist where, as here, despite all the detailed facts which I have summarized, the testimony contains a few loose phrases, comments and conclusions, not inconsistent with the facts testified to, and also not inconsistent with a state of facts which would sustain the award. For example, the claimant salesman at bar described himself in his testimony as “indoor salesman and general assistant, and anything that comes up in the business during the day * * *. I do whatever comes along in the showroom or factory. Things come up that bring me all over the floor, and this accident happened during my duties which called me to the factory.” The employer entered no specific denial of the accuracy of these observations, although the whole record, by its concrete facts disclosed, operates to refute such observations, and is far from sustaining them. As I have observed, there is no detail of evidence showing that in the fancied capacity of “general assistant” the claimant ever did anything, by way of supervision or participation, which actually had aught to do with the manufacture. ‘ Things ” did 6 ‘ come up ” which took him to the factory as well as showroom portion of the “floor,” but it does not appear that any of these acts or duties ever concerned anything except the display and selling of goods. He went into the factory, truly enough, as in this instance, but to procure completed goods for exhibition, not to help or supervise the making. A salesman who slips and falls on a floor, when in the act of taking completed dresses from a rack for the purpose of carrying them back to a customer waiting in the showroom, can hardly be said to sustain an injury arising “from ” and “out of” and “in the course of” employment in the 1 ‘ manufacture of * * * women’s clothing.” Details of actual tasks and duties must be developed before the Commission, rather than scant comments and conclusions such as those claimed to create a controversy of fact in this instance. This becomes especially important under the practical current workings of the Workmen’s Compensation Law. " After the employer has paid a substantial premium to an indemnity company as “insurance carrier,” the employer and his employees often find little or no reason for the elucidation of facts which might prevent a fellow-employee, usually one still in the service, from receiving a substantial stipend from the indemnity company during the period of disability. There is a recognizable human temptation and tendency to “stretch” the facts, indulge in generalities and let fall helpful observations, where the outcome will be indemnity to an injured friend and coworker without apparent additional cost to the employer. This human factor is one which the Commission and courts must watch, in the practical working of the law. Neither Commission nor courts have a right to let the zeal of the claimant or his coworkers and the indifference of the insured employer give evidentiary force, much less decisiveness in themselves, to mere observations and conclusions which would have no place at all in the record of proceedings before a tribunal governed by the historic concepts and rules of orderly proof.

In the second place the contention of my learned brother is in the last analysis based fundamentally on a conception of the scope of a workmen’s compensation plan which should be addressed to the Legislature rather than sought to be accomplished by the courts. Basically his view would make the employer’s business, not the employee’s occupation or actual work, the test of the employee’s right to the protection of the statute. The employer is in the business of the “manufacture of * * * women’s clothing.” That is one of the enumerated employments. Therefore, the salesman who sells the goods manufactured, the truckman who delivers them, the bookkeeper who keeps the accounts, the stenographer who writes the letters, the telephone girl who operates the switchboard, the boy who runs errands and sweeps the office floor are all engaged in the “ manufacture of * * * women’s clothing ” and are entitled to statutory compensation if injured while working for that employer, even though other salesmen, bookkeepers, stenographers, telephone operators and office boys are left to the inadequate remedies of actions for damages for negligence. The question whether the salesman, stenographer or office boy met with injury while on the factory floor or in the office proper, perhaps in a detached or distant building, or even outside any premises owned or used' by the employer, is by the statute expressly made immaterial. The test is whether the injury came “in the course of” the employment and arose “out of” work being done by the employee, no matter where. A salesman or stenographer employed by a concern which manufactures “ women’s clothing ” is neither more nor less engaged in the “ employment ” of such “ manufacture ” when he or she is doing work of salesmanship or stenography in the factory rooms than when doing the same work in the office proper, wherever that office may be. The Legislature has not yet, in my judgment, made the employer’s business the test and given all his employees the protection of the statute, if only the business carried on by the employer is one of those enumerated in the statute. The employee’s right to compensation arises when he does work enumerated in the statute. His own occupation and employment, the thing which he does for his employer, confers the right, not the nature of the employer’s business. In other words, workmen’s compensation has not yet been made by the statute a matter of employer insurance or business insurance. The law does not yet say that all persons employed, in whatever capacity, by a particular employer or class of employers shall come within the statute. The law does not yet say that every person who is employed, in any capacity, in the course of a particular business, shall come within the statute. The law does say that “compensation * * * shall be payable for injuries sustained * * * by employees engaged in the following hazardous employments.” The work of salesman of women’s apparel has not been determined to be any more “hazardous” than any other salesmanship; only the ‘c manufacture ” has been declared ‘hazardous. ” The risk and hazard that a salesman may slip and fall on a stone floor are no greater if he sells women’s clothing than- if he sells shoelaces. The statute does not yet say, on the other hand, that an employee who is injured while authorizedly doing for the employer work which the Legislature has defined as hazardous, is barred from compensation unless that work identically represents the business carried on by the employer.. As pointed out in Matter of Rheinwald v. Builders’ Brick & Supply Co. (168 App. Div. 425), the Workmen’s Compensation Law is legal enactment of a social conviction that the risks incurred by those who do the manual work of inherently dangerous and “ hazardous ” employments should be made a charge upon the cost of the product, without regard of proof of legal fault. It does not represent a belief that because some part of the employer’s business requires some of the employees to do work defined as “hazardous,” thereby all the employees of that business become entitled to the statutory indemnity for disabling accident.

Here again the presence of the indemnity companies as a predominant factor in the provision of insurance under the statute has led to confusion of interests and has brought in a practice broader than the statute. Protection of the employer against claims by any worker has become a common undertaking of the insurance carrier. The employer “insures” himself against any claims by his employees, no matter what their principal or casual duties. Yet this fact should not lead to judicial legislation broadening the statutory purpose, or produce departure from the wise and workable standards unanimously declared by this court in the- Qleisner case, above quoted. The fact that this claimant’s employer is engaged in the business of manufacturing and selling women’s clothing, and that the claimant worked in the selling, does not warrant the conclusion that this salesman was “engaged” in the “hazardous employment ” of the “ manufacture of * * * women’s clothing. ” That showroom and factory room were on the same floor does not change the situation. That the salesman’s duties took him into the factory and that he slipped and fell while there does not alter the legal principle or make salesmanship a part of “ hazardous ” manufacture. The risk assumed by the worker, by the nature of his work, not the product sold or the service rendered by the employer, determines the applicability of the statute. If another rule is to be imposed, that is a task for the Legislature, not this court, as the learned presiding justice proposes.

Nothing decided by this court in Matter of Benton v. Fraser (172 App. Div. 913); Matter of Nicholson v. Klipstein & Co. (171 id. 970); Matter of Larsen v. Paine Drug Co. (169 id. 838); Matter of Berliner v. Ritchie & Cornell (172 id. 913), or Matter of Burton v. Whelen & Sons, Inc. (Id. 913) is at variance with the views herein expressed. Matter of Aylesworth v. Phoenix Cheese Co. (170 App. Div. 34); Matter of Sickles v. Ballston Refrigerating Storage Co. (171 id. 108); Matter of de la Gardelle v. Hampton Co. (167 id. 617), and Matter of Gleisner v. Gross & Herbener (supra) are in full accord.

The award should be set aside and the matter remitted to the Commission for further action.

All concurred, except Kellogg, P. J., dissenting in memorandum.

Kellogg, P. J. (dissenting): .

The claimant swore that he was an indoor salesman and general assistant, and anything that comes up in the business during the day. I am in the whole day. I am absolutely not a traveling man. I do whatever comes along in the showroom or factory. Things come up that bring me all over the floor, and this accident happened during my duties which called me to the factory.” The employer did not controvert this evidence.

I think it is a mistake to treat the claimant as a mere salesman. The showroom and factory were in the same building, and he was employed generally in either room as salesman or general assistant, as occasion required. The findings are binding upon us. They rest comfortably upon the evidence, and if we were at liberty to review them we could not say that they are unsupported. I favor an affirmance.

Award reversed and matter remitted to the Commission for further action.  