Opinion
Argued April 14, 1916
Decided April 25, 1916
Frederick T. Pierson for appellants.
Egburt E. Woodbury, Attorney-General ( Harold J. Hinman of counsel), for respondent.
This is an appeal by Saunders Brothers, the general employer, from an order of the Appellate Division, third department, affirming by a divided court an award of the workmen's compensation commission made to Rose Dale, widow, and to the children, for the death of Frank Dale. The only question in the case is whether Dale was employed by Saunders Brothers at the time of his death within the meaning of the Workmen's Compensation Act. Saunders Brothers urge that he was the special employee of one Walsh and that the special employer should pay and the general employer should not. The facts are undisputed and are as follows:
On October 10, 1914, the day when Dale received the injuries resulting in his death, he resided at 26 Cornell street, Auburn, New York, and was on that date, and for several years prior thereto had been, employed as a driver of a team and wagon by Saunders Bros., who were engaged in the business of brick making at Auburn, New York. Saunders Bros. also hired out their teams for trucking purposes and furnished drivers with the teams and received therefor $5.50 a day for driver, team and wagon. Walsh owned a sand bank adjoining the brick yard of Saunders Bros., one outlet of which was through the property of Saunders Bros. On said date Walsh requested of Saunders Bros. a team, wagon and driver for the purpose of having some sand delivered to Walsh's customers in the city of Auburn. Saunders Bros. sent Dale with a team and wagon. This arrangement was frequently made between Saunders Bros. and Walsh. Upon receiving from Walsh an order for a team, Saunders Bros. selected the driver to go on the work with the team. The wages of Dale were paid by Saunders Bros., namely, $2.00 per day, Saunders Bros. receiving from Walsh for the team and driver $5.50 per day. The duties of Dale were to go to the Walsh sand pit, load his wagon with sand, and deliver the sand in the city of Auburn at places designated by Walsh. Walsh had no power to discharge Dale nor any control over him except to direct where the sand should be taken. Saunders Bros. saw Dale about every two hours during the day and sometimes gave directions as to how Dale should drive. On said date while Dale was assisting in loading the sand into the wagon on Walsh's premises, a sand bank fell on him, and crushed him against the wagon, causing injuries from which he died the same day.
In negligence cases the question often arises as to the proper application of the doctrine of respondeat superior when an employee whose negligence causes an accident is at the time in the general pay and service of one and under the control and direction of another. The latter has been held liable as a special employer when it could be said that the employee was his servant at the time of the accident in a sense and degree which served to impose liability for negligence. ( Higgins v. Western Union Telegraph Co., 156 N.Y. 75; Howard v. Ludwig, 171 N.Y. 507. ) The question, who is the master, also arises at times in employees' actions for negligent injuries. But the question in this case is not one of responsibility for negligent injury inflicted upon strangers nor upon an employee. The doctrine of respondeat superior has no application here, nor are the rules of employers' liability for negligence controlling. Compensation provided for in the Workmen's Compensation Act is payable for injuries sustained or death incurred by employees engaged in specified hazardous employments carried on by the employer for pecuniary gain (Workmen's Compensation Law, § 3, subd. 5), including the operation on streets and elsewhere of wagons drawn by horses. (Workmen's Compensation Law, § 2, group 41.) The word "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. (Workmen's Compensation Law, § 2, subd. 4; Matter of Post v. Burger Gohlke, 216 N.Y. 544.) Saunders Bros. carried on the business of trucking for pecuniary gain. No claim is made that Walsh was carrying on the business of trucking for pecuniary gain. Dale was working for Saunders Bros. as a teamster when he met the accident that caused his death. He was engaged in teaming, not in "the operation of a sand pit." (Workmen's Compensation Law, § 2, group 19.) The duties of a teamster properly include the loading of his wagon, and are not limited to the driving of the team. ( Matter of Costello v. Taylor, 217 N.Y. 179.) All this seems clear, but in any event the decision of the commission is final as to questions of fact. (Workmen's Compensation Law, § 20.) The jurisdiction of this court is limited to the review of questions of law, and if any question is presented upon the facts stated as to whose employee Dale was it is one of fact only. ( Howard v. Ludwig, supra; Kellogg v. Church Charity Foundation, 203 N.Y. 191. )
The order of the Appellate Division should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., COLLIN, CUDDEBACK, HOGAN and SEABURY JJ., concur; HISCOCK, J., concurs in result.
Order affirmed.