Bailey v. School District No. 5

204 A.D. 125, 198 N.Y.S. 247, 1923 N.Y. App. Div. LEXIS 9428

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1923
• Status: Published

Opinions

Hinman, J.:

The Workmen’s Compensation Law (§3, subd. 3) in September, 1921, the date of the accident (now § 2, subd. 3), defined “ employer ” as one “ employing workmen in hazardous employments, including the State and a municipal corporation or other political subdivision thereof” This clearly includes a school district. Section 2, group 43 (now § 3, subd. 1, group 17), of the same law provided: “Any employment enumerated in the foregoing groups and carried on by the State or a municipal corporation or other subdivision thereof, notwithstanding the definition of the term ‘ employment ’ in subdivision five of section three [now two] of this chapter,” shall be covered by the Workmen’s Compensation Law. Subdivision 5 of section 3 of said law defined “ employment ” as relating only to employment “ in a trade, business or occupation carried on by the employer for pecuniary gain, or in connection therewith.” The statute thus distinctly reads out of the law any requirement that the State or a municipal corporation or other political subdivision of the State shall be in “ business ” in order to permit compensation to employees thereof who are engaged in any of the hazardous employments enumerated in the groups set forth in section 2 (now section 3) of the law. Such was the law at the time of the accident, September 12, 1921. At that time there was no plan in the statute fixing the way a political subdivision like a school district might carry the insurance.

In 1922, by chapter 615 of the laws of that year, when the entire statute was rewritten, section 50, subdivision 4, of the Workmen’s Compensation Law was amended to provide as follows: “A county, city, village, town or other political subdivision of the State may secure compensation to its employees in accordance with subdivision one or subdivision two of this section. [Insurance with State fund or another insurance carrier.] If it does not do so, such county, city, town, village or other political subdivision shall be deemed to have elected to secure compensation pursuant to subdivision three of this section. [Self-insurance.] * * * Whenever compensation is awarded to a claimant for injury to an employee of a self-insuring county, town or political subdivision, other than a city or a village, the treasurer of the county * * * containing the * * * political subdivision that employs him, shall, upon presentation of the award, forthwith begin payment of it in accordance with this chapter, using any money of the county available therefor.” Further provision is made for borrowing by the county treasurer if no money is available therefor, and for the board of supervisors to levy the amounts necessary to meet the award upon the proper political subdivision. (See, also, former statute, § 35, as added by Laws of 1919, chap. 458.)

I can see no reason for denying compensation to an employee of a school district, if his employment comes within one of the specified groups, solely upon the ground that no machinery had been provided in the statute at the time of the accident for collecting the award. The intention to cover such an employee is clearly shown by the addition of old group 43 of section 2, now group 17 of subdivision 1 of section 3, added to the former statute by Laws of 1916, chapter 622. An award under the old statute left the claimant with a claim against the district which I think we should recognize as valid and enforcible under the present machinery provided in section 50 of the law. To give that section retroactive effect would not be to create a liability which did not previously exist but simply to afford the relief which a previous liability entailed.

No serious question of the constitutional right of the Legislature to make provision for compensation for public employees engaged in carrying on a governmental function, can be raised. The provision of our Constitution (N. Y. Const, art. 1, § 19) providing that the awards paid “ shall be held to be a proper charge in the cost of operating the business of the employer,” cannot be interpreted as having any relation to awards paid to public employees. That was inserted as a permission or right to be afforded to a private employer to offset any claim that his property was being taken without due process. No such claim of unconstitutionality would ever exist on behalf of the State or a political division thereof and no good reason can be urged for interpreting that clause of our State Constitution as meaning a limitation on the otherwise paramount power of the Legislature to allow a compensation claim against the State or any subdivision thereof, which in good morals ought to be allowed if it requires it of the private employer under similar circumstances. This, in substance, is the view which the Court of Appeals has already expressed. (Munro v. State of New York, 223 N. Y. 208. See, also, Matter of Ryan v. City of New York, 228 N. Y. 16.)

The next question in this case is whether the claimant’s intestate was an employee within one of the specified groups of hazardous employments set forth in the Workmen’s Compensation Law. The sole claim is that claimant’s intestate was the janitor of a public school in the town of Leicester and that as such he was engaged in the “ maintenance and care of buildings,” one of the occupations set forth in old group 42 of section 2, as inserted in said group by Laws of 1917, chapter 705, and continued by Laws of 1918, chapter 634 (now § 3, subd. 1, groups 2, 13). So far as his duties related to “ maintenance and care of buildings ” he was covered by the statute. His injury arose on the school grounds but not in the school building. He went from the school building to a place about fifty feet therefrom, where the school district was having a well excavated. He had nothing to do with the construction of the well. That was in the charge of another workman, who was doing the excavating. The sole duty of this janitor in going to the well, as found by the State Industrial Board, was “ to see whether any of the scholars in said school had disobeyed his instructions by descending into the well.” As he looked over the edge of the well for that purpose, the workman therein struck a match to light a cigarette and natural gas in the well exploded, injuring the janitor and causing his death.

The State Industrial Board may- have been justified in finding that he was performing his duty within his employment, but we cannot see how it can be said that any duty of his to guard these children from injury at this well was a duty having any relation to the “ maintenance and care of buildings.” A janitor is not covered except in relation to bis duties in the “ maintenance and care of buildings.” The award has been based upon a finding that he was engaged in the care of children fifty feet away from the only building that was placed in his charge. The well was in the charge of another workman employed by the district. Even if we could say that a well is a building, no well had been built. The men were simply digging a hole preparatory to constructing a well. A “ building,” as the. term is used generally and as we think it was used in former group 42 of section 2 relating to “ maintenance and care of buildings,” is defined by Webster as follows: “A fabric or edifice, framed or constructed, designed to stand more or less permanently, and covering a space of land, for use as a dwelling, storehouse, factory, shelter for beasts, or some other useful purpose.”

The janitor of this school was not engaged in the “ maintenance and care of buildings ” at the time of his injury, and the award should, therefore, be reversed and the claim dismissed, with costs to appellant against the State Industrial Board.

H. T. Kellogg, Acting P. J., and Van Kirk, J., concur; Hasbrouck, J., concurs, with separate opinion; Kjley, J., in the result.