Opinion
July 10, 1967
Appeal from a decision awarding benefits for 100% loss of use of claimant's left hand due to accidental injuries sustained while operating certain farm equipment; appellant carrier contending (1) that claimant was not an employee of Pierce Industries, Inc., as found by the board and (2) that there was no coverage under its policy. The corporation was a manufacturer of metal products. Clifford Pierce was its president and he and his wife owned the dairy farm upon which the accident occurred. The machine which injured claimant and certain other equipment on the farm were owned by the corporation whose secretary-treasurer replied in the affirmative to the question whether the equipment had been "borrowed" by Mr. Pierce "for his personally owned farm and personal gain" and testified, also, that the corporation had no direct or indirect interest in the farm and received no benefits from it. This unchallenged factual testimony completely vitiates Mr. Pierce's conclusory, categorical statement that the corporation had a "connection with the farm" in that the company "owned the machinery and supplied the labor running it on a joint venture", inasmuch as "An indispensable essential of a contract of partnership or joint venture, both under common law and statutory law, is a mutual promise or undertaking of the parties to share in the profits of the business and submit to the burden of making good the losses." ( Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 317, app. dsmd. 358 U.S. 39; emphasis as in original.) Upon this clear record, neither the fact that claimant was carried on the company's payroll nor Mr. Pierce's conclusory statements that claimant was hired by the company and was working for it at the time of the accident constitute substantial evidence of employment status, absent any evidence whatsoever supportive of the board's vital finding that claimant, when injured, was "under the control and direction of Pierce Industries." We do not reach the issue of insurance coverage. Decision reversed and claim remitted for further proceedings not inconsistent herewith, with costs to appellant carrier against the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum Per Curiam.