Claim of Pettet v. Monroe County Emergency Work Bureau

248 A.D. 797

Opinion

Appeal by employer and insurance carrier from award of death benefits to widow and children of deceased. The appellants contend that deceased was an independent contractor and not an employee and also that when he was injured he was not in the course of his employment. Decedent, a truck owner, who drove his own truck, was employed under the same contract that was involved in the case of Matter of Lipary v. Rochester Monroe County Emergency Work Bureau (244 App. Div. 858). It was there held that the truck driver was an employee. Deceased was supposed to go to work at eight o’clock a. m. On November 15, 1933, he had trouble with his truck and left the job after hauling one load in the morning. The rest of that day and evening he worked at a public garage repairing the truck. The next morning, November 16, 1933, he left home at about eight o’clock a. m. It was very cold and there was no work on the project that morning. At about eight-thirty a. m. he was at the garage with the truck and while changing the oil in the hydraulic jack that raises the truck body he was killed. Award reversed and claim dismissed, with costs against the State Industrial Board. Hill, P. J., Rhodes, MeNamee, Bliss and Heffernan, JJ., concur.