the commission of such act doing the work of the master, or representing him in any sense whatever. He brought into the garage, where the claimant was at work, a percussion cap which he had found somewhere, not on the premises of the employer, and with which he was experimenting, when it exploded, injuring the plaintiff. Both men were chauffeurs, and the percussion cap, which occasioned the injury, had nothing to do with their employment. Earle, in experimenting with it, was merely gratifying his curiosity. The injury, therefore, did not arise "out of" the employment. I do not think the case is distinguishable in principle from Matter of De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761, affirmed 219 N. Y. 581, 114 N. E. 1064, and Matter of Saenger v. Locke, 220 N. Y. 556, 116 N. E. 367. As stated in the case last cited: "The injury must be received as a natural incident of the work. It must be one of the ris's connected with the employment flowing therefrom as a natural consequence and directly connected with the work." Such is not this case, and hence I favor a reversal. Award reversed, and claim dismissed. All concur, except John M. Kellogg, P. J., and Woodward, J., who dissent. SUPREME COURT OF NEW. YORK. APPELLATE DIVISION, SECOND DEPARTMENT. MURRAY UNION RY. CO. OF NEW YORK CITY.* MASTER AND SERVANT-WORKMEN'S COMPENSATION WHAT SERVANTS INCLUDED. Where street railway had a strike, and detective bureau furnished strike breakers, railway paying bureau, which in turn paid the men, one acting as motorman, and another acting as guard, in the car, were servants of the street railway, whose exclusive remedy for negligent injuries is under the Workmen's Compensation Law (Consol. Laws, c. 67); public policy requring that a public carrier be regarded as a esponsible employer. (For other cases, see Master and Servant, Dec. Dig. §.367.) Appeal from Trial Term, Kings County. Action by George J. Murray against the Union Railway Company of New York City. From a judgmert for plaintiff, and an order denying a motion to set aside a verdict and grant a new trial, defendant appeals. Reversed, and complaint dismissed. * Decision rendered, May 10, 1918. 170 N. Y. Supp. 601. Defendant appeals from a judgment of the Supreme Court, entered in the clerk's office of Kings county on or about November 12, 1917, in favor of plaintiff, upon the verdict of a jury for $2,500, afterwards reduced to $1.500; also from an order entered in said clerk's office December 1, 1917, which denied defendant's motion to set aside the verdict, and grant a new trial. In July, 1916, defendant's employees struck, so that defendant sought to obtain others, to run its cars, from the Washington Detective Bureau, Incorporated, which conducted an employment agency. This bureau furnished defendant with motormen, conductors, and guards to the number of about 600, at the price of $5 each per day, from which the bureau paid the men $3 a day. The guards were employed to protect passengers and cars from violence. The bureau had a representative at defendant's car barns, where, as the men were called for, they were turned over to defendant's division superintendent, who assigned them to operate the trolley cars being dispatched on the different lines going out from the barns. Plaintiff sat inside the car as a guard. Another man from this bureau went on the same car as a motorman. The car eventually left the track and collied with an elevated railroad pillar on Boston Road near 174th street. Two of plaintiff's ribs were fractured by this contact, and he had other injuries. Defendant admitted negligence. Defendant pleaded in bar its compliance with the Workmen's Compensation Law (Consol. Laws, c. 67); that it was a common carrier for hire, which is a hazardous occupation within said act. It also averred that plaintiff's injury was sustained by him as an employee, arising out of and in the course of such employment; that at this time defendant had secured compensation for the disability or death of the employees in said employment, resulting from accidental personal injury or injuries sustained by said employees arising out of and in the course of their employment, in accordance with section 50 of said act, and, as section 51 required, defendant had posted notices thereof. At the close of the proofs, the court ruled that plaintiff was not a servant of the railroad company; that on the day of this accident the relation of master and servant did not exist between plaintiff and defendant. To this defendant's counsel duly excepted. The question of damages was the only matter submitted to the jury. Argued before Jenks, P. J., and Thomas, Rich, Putnam, and Blackmar, JJ. Alfred T. Davison, of Brooklyn (James M. O'Neill, of New York City, on the brief), for appellant. Henry M. Dater, of Brooklyn (Jay S. Jones and Edward J. Fanning, both of Brooklyn, on the brief), for respondent. PUTNAM, J. The motorman who ran the car against this pillar was also furnished by this detective bureau. Yet unquestionably he was in the defendant's employ. Otherwise there would be no suit against defendant. Both plaintiff and the motorman were performing services for the interest of defendant. Defendant had the same authority over plaintiff as if it had directly hired him. This detective bureau was not operating this railroad. The obligation under defendant's franchise to carry passengers in certain streets of the city defendant could not delegate to another. Although, for purposes of statutory compensation, an injured employee's claim is favored to the extent that in certain cases he may look either to the general employer or to the special employer for such compensation (Matter of De Noyer v. Cavanaugh, 221 N. Y. 273, 116 N. E. 992. Matter of Nolan v. Cranford Co., 219 N. Y. 381, 114 N. E. 1074), public policy requires that a public carrier like defendant, who has procured such protection to its servants, should be regarded as a responsible employer within this act. As the fits are not in dispute, we hold that plaintiff's exclusive remedy is properly under the Workmen's Compensation Law, by presenting his claim to the state commission. The judgment and order are therefore reversed, and complaint dismissed, but without costs in the court below, or on this appeal. All concur. SUPREME COURT OF NEW YORK. SCHLENKER GARFORD MOTOR TRUCK CO., INC., ET AL. IN RE GENERAL ACC. FIRE & LIFE ASSUR. CORP., LIMITED, OF PERTH, SCOTLAND.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -AGREEMENT-EFFECT OF INSURER'S OBJECTION. Since Workmen's Compensation Act (Consol. Laws, c. 67) § 20, as amended by Laws 1915, c. 167, § 1, authorizes the commission to aprove a compensation agreement consented to by the employer and the principal dependent, the filing of objection to the award as agreed on by such persons, on the part of the insurer, does not affect validity of an award as agreed. (For other cases, see Master and Servant, Dec. Dig. § 382.) COMPENSATION 2. MASTER AND SERVANT-WORKMEN'S -DISCRETION OF COMMISSION. Where award was made on agreement of employer and servant's widow, over objections by insurer, who had full hearing, refusal later to reopen the case, without additional showing, was discretionary with the commission, for, though the insurer is entitled to a hearing, without which the award is not conclusive as to him, one hearing is sufficient. (For other cases, se Master and Servant, Dec. Dig. § 414.) Appeal from State Industrial Commission. Proceeding by Lena Schlenker, as widow of Jacob Schlenker, for workmen's compensation, opposed by the Garford Motor Truck Company, Incorporated, employer, and the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland, insurer. From an * Decision rendered, May 8, 1918. 170 N. Y. Supp. 439. award of the State Industrial Commission for claimant, and from decision refusing to vacate the award and reopen the proceedings, the employer and insurer appeal. Affirmed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Alfred W. Meldon, of New York City (Theodore H. Lord, of New York City, of counsel), for appellants. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City (E, C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. COCHRANE, J. The death of Joseph Schlenker on May 9, 1917, is claimed to have resulted from injuries received by him on April 16, 1917. He left a widow and two small children. The employer and the widow, as the principal dependent of the deceased, entered into an agreement, dated May 24, 1917, for the payment of compensation, and submitted a joint report of the claim containing such agreement to the State Industrial Commission for its approval, pursuant to section 20 of the Workmen's Compensation Law. That section provides: "The commission shall examine such report and approve the same when the terms are strictly in accordance with this chapter, and such approval shall constitute an award." Such approval was given by the commission July 16, 1917. Apparently on July 2, 1917, the insurance carrier advised the commission that in its opinion the death of Schlenker was not attributable to his injury. [1, 2] It is now urged that, the insurance carrier having indicated its dissatisfaction with the agreement before the same was approved by the commission, the latter could not thereafter give its approval. The statute (section 20) does not make the approval of the commission depend on the consent of the insurer, nor even on the consent of all of the claimants, but only on the consent of the employer and principal dependent. The approval of the commission was therefore properly given, even though the insurer had protested more vigorously than it seems to have done in this case, and by the mandate of the statute "such approval shall constitute an award." Of course, the insurer is entitled to a hearing, and without such hearing such award could not be deemed conclusive as to the insurer. But the insurer in this case has had such hearing. On October 10, 1917, a hearing was given by the commission, at which the the insurer appeared by counsel, produced witnesses, and had them examined. The testimony of such witnesses tended in no respect to impeach the award previously made, or to overcome the presumption of section 21 "that the claim comes within the provisions of this chapter." The injury consisted of a blow on the head. The employee died 23 days thereafter from tubercular meningitis, and one of the medical experts produced by the insurer testified that he found "a distinct tuberculosis of the base of the brain." All the medical testimony was to the effect that a trauma of the kind which the employee received could excite a dormant tubercular condition into activity and accelerate death. The appellants produced no evidence to the contrary, but merely that there were no traumatic indications at the time of his death, more than three weeks after the trauma, and the commission adhered to its previous award. Again, on December 5th, the insurer asked to have the case reopened, but presented no additional evidence, nor did it claim to be able to do so. The refusal of the commission to then reopen the case was discretionary. The insurer had had its day in court. The award and decisions should be affirmed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. DUTCHER AMERICAN EXPRESS CO.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -AWARD-LOSS OF USE OF HAND. Where an accident to a servant necessitated the amputation of all four fingers of his right hand, up to and including the greater portion of their proximal phalanges, leaving a stump, but with no involvement of the metacarpal bones, a laceration and fracture of the terminal phalanx of the right thumb, resulting in some thickening of callous and shortening and lessening in size of muscles and tendons, impairing its full use, and resulting in inability to bring the thumb into conjunction with the palm, the final result being that the servant had some limited use of his right hand in his employment as express transfer man, and also in writing for a short time, the State Industrial Commission was justified in awarding him compensation as for permanent loss of the use of the hand, the equivalent of loss of the hand. (For other cases, see Master and Servant, Dec. Dig. § 385[13].) Appeal from State Industrial Commission. Proceedings for compensation under the Workmen's Compensation Law by John C. Dutcher, opposed by the American Express Company, employer and self-insurer. Compensation was awarded by the State Industrial Commission, and the employer appeals. Affirmed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Decision rendered, May 8, 1918. 170 N. Y. Supp. 442. |