
    Before State Industrial Commission, Respondent. In the Matter of the Claim of Rose Dale, Respondent, for Compensation to Herself and Children for the Death of Frank Dale, under the Workmen’s Compensation Law, v. Saunders Brothers, Employer, and Standard Accident Insurance Company, Insurance Carrier, Appellants.
    Third Department,
    March 8, 1916.
    Workmen’s Compensation Law—injury to teamster engaged in drawing sand from pit — operation of wagon or truck — effect upon liability of general employer of liability of special employer.
    Where a proprietor of a sand pit hired a team and teamster from a manufacturer of brick to draw sand from the pit and while the teamster was loading the wagon the sandbank fell, fatally injuring him, he is entitled to the protection of the Workmen’s Compensation Law and either the proprietor of the sand pit, the special employer, or the briekmaker, the general employer, may beheld liable.
    A teamster drawing sand from a pit is engaged in a hazardous employment within the meaning of groups 19 and, 41 of section 2 of the Workmen’s Compensation Law.
    The operation of a wagon or truck referred to in group 41 of section 2 of the Workmen’s Compensation Law is not confined merely to the moving
    
      vehicle, but relates to anything incident to the employment such as the loading and unloading of the wagon, the necessary care and attention to the wagon and horse. Any act which falls within the duty of the teamster as such is within the-proteetion of the statute.
    The fact that the special employer may be held liable does not absolve the briekmaker, the general employer, from liability.
    A general employer is liable where the injury occurs within the lines of the general employment and the liability is not destroyed by the fact that a special employer may also be liable, thus giving the employee a choice of remedies with but one compensation.
    Woodward and Howard, JJ., dissented, with opinion.
    Appeal by Saunders Brothers and another from an award of the State Industrial Oommission, made on the 16th day of July, 1915, granting compensation herein.
    
      Frederick T. Pierson, for the appellants.
    
      EgburtE. Woodbury, Attorney-General [Harold J. Hinman, Deputy Attorney-General, of counsel], for the respondent.
   Kellogg, P. J.:

Saunders Brothers, appellants, were makers uf brick, and Dale was one of their teamsters. The sworn report made by them to the Commission states concisely the manner in which he met his death. I sent him for a load of sand, while there it fell. Sand bank fell, and he died the next day.”

Saunders Brothers were drawing this sand for profit, and Dale was their teamster; the fact that his team was not moving when he was injured, and that he was loading sand in the wagon in order to draw the load to Auburn, does not deprive him of the benefit of this law. He was operating the wagon just as much as if he had been driving on the road. The operation of a wagon or truck, referred to in group 41 of section 2 of the Workmen’s Compensation Law, is not confined merely to the moving vehicle, but relates to anything incident to the employment, such as caring for the horse in the stable after the day’s work is done, as we held in Matter of Smith v. Price (168 App. Div. 421). The loading and unloading of the wagon, the necessary care and attention to the wagon and to the horses, any act which falls within his duty as a teamster, is within the protection of the law.

If a brickmaker requires his teamster to use his team temporarily in carting for a neighbor, the employee does not thereby lose the protection of this lav/. Such service may be treated as an incident to his general employment. He is not to determine as to the business of his employer, but must do as he is told, and the employer is responsible for the results.

That the injury was one arising out of and in the course of his employment by said appellant is apparent. The award, therefore, is clearly within the provisions of the Workmen’s Compensation Law. The employment was a hazardous one within group 19 and also within group 41.

It is urged, however, that in the case of Matter of Gimber v. Kane Co. (2 State Dept. Rep. Official, 475; affirmed by this court without opinion, 171 App. Div. 958), upon substantially similar facts an award was made against the proprietor of the sand pit, and it is claimed that if we were right there, the Commission is wrong here. In my judgment either the proprietor- of the sand pit, the special employer, or the general employer, the brickmaker, is liable in this case. As has frequently been said, the Workmen’s Compensation Law is a new departure in giving a remedy to a workman for an injury received in a hazardous employment. The loss from such inj ury is placed without regard to fault upon the employment to the relief of the employee. It is considered a part of the cost of the product resulting from the employment and is thus charged upon the ultimate consumer. In addition to this, it was fairly within the intent of the law that by making these hazardous employments liable for all injuries occurring in them without regard to fault, the employer would exercise the utmost care to prevent accidents. The act provides a summary remedy disregarding the ordinary procedure and rules of evidence and prescribes radical presumptions in favor of the claimant. The law of negligence, the rules relating to master and servant, the rule as to the inability to serve two masters, are of but little value here. The statute itself has removed these questions to quite an extent from our consideration. It names the hazardous employments; it defines an employee as a person engaged in such employment in the service of the employer, and, defines the employer as a person employing workmen in such employment. When the statute defines the employer as one employing men in a hazardous employment, it does not necessarily mean that he is hiring a servant by a personal contract with him, but ib means that he is using or engaging the man in a hazardous work. It is not a question of hiring’, or of master and servant, but of using and putting the man in the hazardous employment which the act has in view. The name of the act, Workmen’s Compensation Law,” indicates that it is not to be limited to cases where the actual relation of master and servant exists, but to workmen and those employing or using them in the manner stated. When it appears that a person is carrying on such hazardous employment for profit and that a person in his service or who he is employing or using therein receives an injury, compensation follows.

Clearly the proprietor of the sand pit must get his sand to market and must use men and teams for that purpose, and, when he arranged from time to time with the Saunders that they were to furnish him with teams to draw sand at the rate of four dollars and fifty cents per day figured at four loads of sand as a day’s work with the right to draw the four loads in one or on different days, it is easy to say that the driver-within the meaning of the act, was engaged in the hazardous employment of sand * * * pits, ” and that the proprietor was employing or using him in the hazardous business which caused his death.

He was there for two reasons: (1) Because he was in the employ of the Saunders Brothers, as their driver, and was loading the sand in their wagon, as his duty as their driver required him to do. (2) The proprietor of the sand pit employed the use of the team and driver to enter into the sand pit and draw the sand therefrom. The driver was, therefore, engaged in two hazardous employments, the ordinary business of a teamster, and working in and about a sand pit. The proprietor of the sand pit had two regular helpers there who assisted the teamster in loading the wagon. It is difficult to see upon what theory the law could make the owner of the pit liable to those men and not to the teamster if all were hurt while working side by side in loading the wagon.

If the driver was accidentally injured while drawing the sand upon the highway by falling from the wagon or in any way not connected with the sand itself, it cannot be claimed that the special employer, the sand pit proprietor, would be liable. The same may be true as to an ordinary accident happening upon the sand pit premises but not connected with the hazards of the pit itself. But when the accident is caused, as in the Girnber case and in this case, by the sand in the pit falling upon the person where the proprietor had put him to work, the liability may fall upon the proprietor of the pit. As we have said, the law of master and servant does not necessarily control here. The question is, was the employee engaged in a hazardous employment in the service of the defendant or of the sand pit proprietor, or of both ?

The fact that the owner of the sand pit might be liable under this law does not absolve the general employer. Dale was required to drive his team where Saunders Brothers directed, and, by requiring him to go into the sand pit and subjecting him to the increased danger there, they cannot relieve themselves from the ordinary duties and liabilities to their teamster. The fact that under the provisions of this law the employment might fall within two or more different groups and thereby two or more different persons might be hable to make the compensation does not prejudice the injured employee or his family. It furnishes an additional guaranty that payment will be made. The general employer, where the injury occurs within the lines of the general employment, is liable, and that liability is not destroyed by the fact that the special employer may also be liable, thus giving the employee a choice of remedies with but one compensation. I, therefore, favor affirmance.

All concurred, except Woodward, J., dissenting in opinion in which Howard, J., concurred.

Woodward, J. (dissenting):

Saunders Brothers, the alleged employers, are engaged as manufacturers of brick at Fleming, near Auburn. They employ a number of teamsters to drive their wagons, and from time to time Saunders Brothers have furnished these teams, with drivers, to one Patrick Walsh, who conducted a sandbank near by, for the purpose of delivering sand to patrons at Auburn. Frank Dale was one of the teamsters so employed, and on the 10th day of October, 1914, was sent by Saunders Brothers to Patrick Walsh for the purpose of performing this delivery service for the said Walsh. The team and wagon were placed by the servants and employees of Walsh, and while Dale was engaged in shoveling sand into the wagon the sand from the bank caved in, falling upon Dale, producing injuries which resulted in his death the following day. The State Industrial Commission as the successor to the State Workmen’s Compensation Commission, has awarded damages to the widow and children against Saunders Brothers and their insurance carrier, and these appeal to this court upon the ground that Dale was, at the' time of the accident, in the special employ of Walsh, who became liable for the injuries. In this contention the appellants are clearly in harmony with this court in Matter of Gimber v. Kane Co. (171 App. Div. 958), and unless we were in error in that case the determination in the present case cannot stand. No distinction can be made in the facts, so far as we are able to discover; in both cases the driver was employed generally by one party and was by each party hired out, with a wagon and team, to another, and while so employed was injured in the performance of the duties of the particular occupation. We there held, upon the authority of Miller v. North Hudson Contracting Company (166 App. Div. 348), that the employee became the servant of the corporation conducting the particular work, and that such corporation, or its insurance carrier, was liable for the damages, affirming the award of the Commission. Just how the Commission, upon practically the identical state of facts, can now be permitted to make an award against the original employer we are unable to understand.

The theory of the Workmen’s Compensation Law, as we understand it, is that the particular industry in which the accident occurs is to bear the loss; it is to become a charge upon the production of such enterprise (Ives v. South Buffalo R. Co., 201 N. Y. 271, 286), and if Dale had been injured while delivering brick for the initial employer, a manufacturer of brick, this would have come within the theory of the law. But nothing of the kind occurred; the accident happened to Dale while he was engaged, in the work of operating a sand bank. He was generally employed as a teamster, but he was specially engaged at the time of the accident in shoveling sand from a sand bank into a wagon in company with others—he was doing the work of Patrick Walsh, whose business was that of an operator of a sand bank, under group 19 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), and it was this industry which should, under the theory of the law, be charged with the damages. The statute provides (§ 2) that the “ compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous occupations,” and (§ 3, subd. 4) that “ employee ” means “ a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer,” and (§' 10) that every employer shall provide compensation “for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment.” “ Personal injury ” is defined by the statute (§ 3, subd. 7) to “mean only accidental injuries arising out of and in the course of employment,” and “employment” is defined (§ 3, subd. 5) as including “ employment only in a trade, business or occupation carried on by the employer for pecuniary gain,” and an “employer” is defined (§ 3, subd. 3, as amd. by Laws of 1914, chap. 316) as one “employing workmen in hazardous employments.” Saunders Brothers were, it is true, engaged in one of the hazardous employments, but Dale was not injured because of anything arising out of and in the course of his general employment as a teamster in operating a brick-making plant; he was injured to his death while performing a special employment in a sand bank. He was not engaged in 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 ” (§ 2, group 41), but was performing the work of a shoveler of sand, and this employment was being carried on by Walsh for pecuniary gain; he was the employer who was engaged in the particular hazardous occupation in which Dale met his death, and an “employee ” is, as we have seen, “ a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same [employment] upon the premises or at the plant, or in the course of his employment away from the plant of his employer.” Saunders Brothers had no occasion to use Dale in shoveling sand; they were not engaged in this hazardous occupation. They were manufacturers of brick, and having more teams and men than they needed to use in their own business at this particular time they temporarily transferred their team and driver to the service of Walsh, and it was while this operation of a sand bank—the hazardous occupation of Walsh—was in progress that the accident happened. Clearly, if the spirit of the act is to have effect, and the accidents of a given industry are to become a charge upon the product of such industry and be absorbed by the purchasers of that product (Ives Case, supra), then the injuries which Dale sustained become a proper charge, not upon Saunders Brothers, but upon Walsh, whose industry was being developed through the efforts of Dale. A long line of cases in law actions sustain the theory that the employee of a general employer may become the employee of a special employer, and we believe that the doctrine is peculiarly applicable to the case presented upon this appeal. At any rate this court is committed to the doctrine, and this calls for a reversal of the award.

The award of the Commission should be reversed and set aside.

Howard, J., concurred.

Award affirmed.  