Appeal from Supreme Court, Appellate Division, Third Department. Proceeding under the Workmen's Compensation Law by Ragnhild Hansen and minor dependents to obtain compensation for the death of her husband, opposed by the Turner Construction Company, employer, and the State Insurance Fund, insurance carrier. From an order of the Appellate Division (171 N. Y. Supp. 1087), affirming by a divided court an award of the State Industrial Commission, the employer and the insurance carrier appeal. Order of Appellate Division reversed, determination of the Industrial Commission annulled, and claim dismissed. Frederick Hulse, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondents. MCLAUGHLIN, J. The claimant's husband, on the 23d of July, 1917, was in the employ of the Turner Construction Company. While in the cellar of a new building which it was constructing he collapsed and fell. No one saw him fall, but immediately thereafter he was observed by his coemployees, who went to his assistance and found him in an unconscious condition, trembling and frothing, at the mouth. They threw water in his face, and shortly thereafter he revived and was taken to a hospital, where he died the following morning. A post mortem examination disclosed that his death was due to a blood clot and pressure upon the brain. His widow and minor dependents presented a claim against his employer, on the ground that his death was due to an injury which he received when he fell. The claim was disputed by his employer and the insurance carrier. The Industrial Commission, after a hearing had, at which evidence was taken, reached the conclusion that the claim should be allowed and accordingly made an award. From this determination an appeal was taken to the Appellate Division (171 N. Y. Supp. 1087), where the same was affirmed, and an appeal then taken to this court. After a careful consideration of the evidence set out in the record, I have been unable to find any evidence that the death of the claimant's husband was due to an injury received while in the employ of the Turner Construction Company. At the time he collapsed he was working on a dirt floor, and there is nothing to indicate that his fall was due to anything connected with his employment; on the contrary, all of the evidence shows that it was due to an injury which he had previously sustained, or disease with which he had been afflicted. One of the persons with whom he was working, at or immediately prior to the time he collapsed, testified that he stood within a few feet of him, and, while he did not see him fall, he did immediately thereafter see him lying on the floor; that he went to his assistance, and there was nothing to indicate the cause of his fall; that there were no obstructions upon the floor, no pillars or posts near where he fell, or anything to show that the cause of his fall was other than a collapse. The witness was corroborated by another to the effect that he saw the deceased immediately after he fell; that he was then lying on his back, frothing at the mouth, and trembling; that there was nothing to indicate he had tripped or fallen by reason of anything upon the floor, and there were no marks upon his face or head which showed in any way that he had been injured, except a slight scratch upon his cheek. When he reached the hospital he was immediately put to bed, a careful examination made of his person, and the only evidence of an external injury which could be discovered was an abrasion over his forehead about as big as a quarter of a dollar. There was no evidence of a fracture or concussion of any kind. After his death an autopsy was performed, and this disclosed a subdural hemorrhage, which, according to the physician making the autopsy, had existed for some time prior to Vol. III-Comp. 12. his collapse; that there was no evidence whatever of traumatism or concussion received at that time, or that his death was in any way caused by an injury then received. Under such circumstances I do not see how an award could be made. If so, it had for its basis a mere guess or conjecture. The Workmen's Compensation Law (Consol. Laws, c. 67) should receive a liberal construction, but it ought not to be so construed as to take money from one person and give it to another without any legal basis therefor. To hold otherwise would be simply to make the employer an insurer of his employee, and this the Legislature has not as yet done. The order of the Appellate Division should be reversed, and the determination of the Industrial Commission annulled, and the claim dismissed, with costs in this court and in the Appellate Division against the Industrial Commission. Hiscock, C. J., and Collin and Crane, JJ., concur. CHASE, J., Concurs in memorandum, as follows: Although it appears that Hansen, on the day of the injury, said that he tripped and fell while at his work, it further clearly appears that such statement was a conclusion on his part, as he stated to the physician who attended him at the hospital that he did not know what happened to him. I am of the opinion that there is no evidence to support the findings of the commission on which the award rests. Cuddeback and Hogan, JJ., dissent. COURT OF APPEALS OF NEW YORK. LITTS ET al. V. RISLEY LUMBER CO. ET AL.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— "INDEPENDENT CONTRACTOR"-"EMPLOYEE." A painter, agreeing to paint three smokestacks for a corporation, was an independent contractor, and not an employee within the Workmen's Compensation Law, where he had absolute control of himself and his helper as to the time when he was to begin work and as to where he should commence, unhampered by directions from the corporation and not subject to its discharge. (For other cases, see Master and Servant, Dec. Dig. § 367.) (For other definitions, see Words and Phrases, First and Second Series, Employee; Independent Contractor.) 2. MASTER AND SERVANT-RELATION OF EMPLOYEE. In the relation of employer and employee, the employer has control and direction, not only of the work and its performance and results, but of its details and methods, and may discharge the employee disobeying such control and direction. (For other cases, see Master and Servant, Dec. Dig. § 367.) * Decision rendered, Oct. 29, 1918. 120 N. E. Rep. 730. 3. MASTER AND SERVANT—WORKMEN'S COMPENSATION— INDEPENDENT CONTRACTORS. That an independent contractor employed to paint certain smokestacks for a corporation is directed by the corporation during the performance of the work to scrape off and paint well the rusty spots does not affect his status as an independent contractor within the Workmen's Compensation Law. (For other cases, see Master and Servant, Dec. Dig. § 367.) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION— INDEPENDENT CONTRACTORS. That an independent contractor, undertaking to paint certain smokestacks for a corporation, is furnished paint and a helper by the corporation does not affect his status as an independent contractor within the Workmen's Compensation Law. (For other cases, see Master and Servant, Dec. Dig. § 367.) Appeal from Supreme Court, Appellate Division, Third Department. Proceeding under the Workmen's Compensation Act by May D. Litts and others, opposed by the Risley Lumber Company, employer, and others. An award by the State Industrial Commission was affirmed by the Appellate Division (170 N. Y. Supp. 1093), and the employer appeals. Reversed. E. C. Sherwood, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for State Industrial Commission. COLLIN, J. The State Industrial Commission decided that Burt Litts died from injuries received as an employee of the Risley Lumber Company while in the course of his employment, under conditions making the Workmen's Compensation Law (Consol. Laws, c. 67), applicable. They, therefore, made an award of compensation to the claimants, which the Appellate Division affirmed by a decision not unanimous. The evidence, however, is not conflicting. We are to determine whether or not it tends to sustain the finding that Litts was, when injured, an employee of the company within the intendment of the act. the was The Three high smokestacks were a part of the industrial plant of the company at Rock Rift, N. Y. In the spring of 1917 Litts agreed with company that he would paint the stacks for the sum of $50. Litts to furnish the ropes, tackle, scaffolding, and implements. company was to supply the paint and pay the wages of a man to help Litts. On August 21, 1917, the company wrote to Litts, who had not then painted the stacks, as follows: "Walton, N. Y., August 21, 1917. "Mr. Bert Litts, Readburn, N. Y.-Dear Sir: When do you expect to be able to paint the stacks that we talked to you about this spring? This ought to be done before the ovens and the boilers are fired up. "Yours truly, H. C. McKenzie, Treas." On or about the 28th day of August, 1917, Litts appeared at the plant of the company with the articles furnished by him necessary for painting the stacks. He said to Bailey, the foreman of the company: "Bailey, I don't know who I can get. Can you furnish me a helper for a little while?" Bailey sent to him McGraw, who was a day-laborer employed by and on the pay roll of the company. Litts said he would do. McGraw by means of a rope helped to pull Litts up aside the stacks and hold him when he wanted to stop. On the 31st day of August, Litts, because of the breaking of the rope, fell and was so injured that he died. On August 30th, Litts, being unable to work on the stack because of rain, told the foreman he was going home. The foreman gave him inside painting to do, which was kept account of separately from that of painting the stacks. The act contains this definition : "Employee' means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants." Section 3, subd. 4. This definition is not inimical to and does not disturb the distinctions established in the common law between a servant or employee and an independent contractor. The rules which demarcated the relation of master and servant from that of employer and independent contractor are operative in the consideration of claims made under the act. From the definitions and language of the act it is manifest that it deals with employer and employees, and an independent contractor is not within its protection. [1] In the instant case Litts was an independent contractor. He agreed to do a specific piece of work for the company. In doing it he had absolute control of himself and his helper. He was independent as to when, within a reasonable time after the agreement was made between him and the company, and as to where he should commence the work. He was free to proceed in the execution of it entirely in accordance with his own ideas. He was not to any extent subject to the directions of the company in respect of the method, means, or procedure in the accomplishment. He was not subject to a discharge by the company because he did the painting in one way rather than in another. Those facts, considered by themselves, would constitute him an independent contractor. [2] In the relation of employer and employee the employer has control and direction, not only of the work or performance and its result, but of its details and method, and may discharge the employee disobeying such control and direction. Uppington v. City of New York, 165 N. Y. 222, 232, 59 N. E. 91, 53 L. R. A. 550; Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. St. Rep. 703; McColligan v. Penna. R. R. Co., 214 Pa. 229, 63 Atl. 729, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287; Bennett v. Truebody, 66 Cal. 509, 6 Pac. 329, 56 Am. Rep. 117; Zeitlow v. Smock (Ind. 1917) 117 N. E. 665; Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N. W. 876; Fidelity & Deposit Co. v. Brush (Cal. 1917) 168 Pac. 890; Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506; Messmer v. Bell & Coggeshall Co., 133 Ky. 19, 117 S. W. 346, 19 Ann. Cas. 1. Moreover, the agreement to paint the three stacks for the specified sum of $50 is indicative, though not conclusive, that Litts became an independent contractor. [3] The fact that during the progress of the work the company told Litts to do certain acts which were essential to the performance of the agreement, that is, to scrape off and paint well the rusty spots, is not inconsistent with his status or relation as an independent contractor. The relation permitted the company to exercise the degree of control essential to secure the fulfillment of the contract and which did not deprive Litts of the right and opportunity to do the painting in the way he wished. Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550; Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332, 75 N. E. 496, 108 Am St. Rep. 253; Carleton v. Foundry & Machine Products Co. (Mich. 1917) 165 N. W. 816. [4] The fact that the company furnished the paint and the helper does not conflict with the evidence here that Litts was independent of and uncontrolled by the company in the mode and means of doing the work. Litts was free to apply the paint as he chose. The helper was subject to his orders alone. The power was his throughout the performance of the job to determine and direct the particular manner in which the paint and the appliances should be used and the acts of the helper. Perham v. American Roofing Co., 193 Mich. 221, 159 N. W. 140; Miller v. Minn. & N. W. Ry. Co., 76 Iowa, 655, 39 N. W. 188, 14 Am. St. Rep. 258. The order should be reversed and the determination of the State Industrial Commission annulled, and claim dismissed, with costs against the State Industrial Commission in this court and in the Appellate Division Hiscock, C. J., and Chase, Cuddeback, Hogan, McLaughlin, and Crane, JJ., concur. Ordered reversed, etc. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. ANDREWS BUTLER MFG. CO. ET AL.* MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW ABSENCE OF NOTICE-PREJUDICE-PRESUMPTION AND BURDEN OF PROOF. Under Workmen's Compensation Law, § 18, providing that failure to give the prescribed notice of injury shall bar claim, unless excused on the ground that the employer has not been prejudiced thereby, there is a presumption, which must be overthrown by claimant, of prejudice from want of speedy opportunity to investigate question of accident. (For other cases, see Master and Servant, Dec. Dig. § 403.) Appeal from State Industrial Commission. Proceeding by Frank H. Andrews, employee, for compensation under the Workmen's Compensation Law, opposed by the Butler Manufacturing Company, employer, and the American Mutual Compensation Insurance Company, insurance carrier. From a decision of the State Industrial Commission, denying an award, claimant appeals. Affirmed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Francis Preston, of Syracuse (P. Sidney Hand, of Syracuse, of counsel), for appellant. Jeremiah F. Connor, of New York City, for respondents. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. WOODWARD, J. The claimant demanded compensation for an injury to his * Decision rendered, November 13, 1918. 172 N. Y. Supp. 405. |