Opinion
November 10, 1915.
Bertrand L. Pettigrew [ Walter L. Glenney of counsel], for the appellants.
Egburt E. Woodbury, Attorney-General [ E.C. Aiken, Deputy, of counsel], and Jeremiah F. Connor, for the Workmen's Compensation Commission.
The Commission has found as follows: "On the 16th day of December, 1914, the day when Kris Larsen received the injuries which resulted in his death, he resided at West Brighton, Monroe county, New York, and was employed as a porter, elevator man and general utility man by the Paine Drug Company, a corporation doing business of manufacturing and selling drugs and chemicals and medicines and pharmaceutical preparations, at both retail and wholesale, in the city of Rochester, New York."
The evidence on which the Commission based this finding of fact is the affidavit of the secretary of the employer in which he states that the character of the Paine Drug Company was "retail and wholesale drugs and physicians' supplies." The employer being a wholesale druggist, it might reasonably be inferred that the concern was engaged in the "manufacture of drugs and chemicals" (Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 2, group 28); for a drug, according to Webster, is "Any substance used as a medicine;" and it may be assumed that a wholesale druggist compounds and mixes different substances together into medicines, and thus manufactures drugs. The Commission did undoubtedly so assume; but in the absence of substantial evidence to the contrary, section 21 of the act commanded the Commission and commands us to presume "that the claim comes within the provisions of this chapter."
The Commission has found that at the time of the accident the deceased "was engaged in building a shelf near the elevator well, and while reaching into the elevator well to obtain a board which he had placed some place on the side of the well, he lost his balance and fell down the elevator shaft from the third floor to the basement, by reason of which he was instantly killed." A general utility man engaged in an establishment where drugs and chemicals are manufactured must be presumed to participate more or less in the work of the establishment. The deceased was engaged at the instant of the accident in building a shelf, but in order to do this it may have been necessary to handle the drugs and chemicals in the building; that is, move them so as to have room to build the shelf and after it was built place them upon the shelf. In fact the evidence before the Commission shows that the deceased was required to rearrange cases and do work of that character. In Matter of McQueeney v. Sutphen Myer ( 167 App. Div. 528) this court said: "If the employee is engaged in an employment declared hazardous by this law, but at times may work in a non-hazardous employment, it is not unreasonable that the injury should be considered within the act if the employer fails to show all the facts. * * * If the employer had insured in the State fund, the insurance premium would rest upon the basis that when at work for his employer the claimant McQueeney was to be engaged in the hazardous business all the while, and the premium having been exacted upon that basis prima facie the loss should be met upon that basis."
We think it should be held that the claimant's intestate came to his death while engaged in one of the hazardous employments enumerated in the act, and that the award of the Commission should be affirmed.
All concurred, except SMITH, P.J., and WOODWARD, J., dissenting.
Award affirmed.