Summary
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.
Summary of this case from Matter of Larsen v. Paine Drug Co.Opinion
May 5, 1915.
Nadal, Jones Mowton [ Edward P. Mowton of counsel], for the appellants.
Egburt E. Woodbury, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], representing the Commission.
Jeremiah F. Connor, for the Commission.
The claimant was an employee in the shop or factory of the employers whose business was "polished plate and window glass, jobbers and manufacturers of mirrors and bevelled plates." The claimant was injured while assisting two coemployees in raising a light of plate glass, eighty-four by ninety-six inches, from the cutting table. The Commission has made him an award, apparently holding that his employment was within group 20 of section 2 of the Workmen's Compensation Law. That group is "Manufacture of glass, glass products, glassware, porcelain or pottery." Cutting up and bevelling glass, or making looking glasses of it may be considered a manufacture of glass products within the meaning of this law.
The appellants contend that it does not appear that the claimant was engaged in one of the hazardous employments defined by section 2 of the law; that it does not appear that the glass which the claimant was handling was being made into looking glasses or bevelled glass plates or even was to be cut into small-sized plates; that for all that appears he may have been packing glass which had been sold to a customer in the same condition it was in when received at the shop.
This contention overlooks the provision of section 21 that in any proceeding for the enforcement of a claim it shall be presumed, in the absence of substantial evidence to the contrary, "1. That the claim comes within the provisions of this chapter." The presumption in itself is not unreasonable. Under the act the claimant, within ten days after the injury, must notify the Commission and the employer of the accident (§ 18); the employer, within ten days after the accident, must report it to the Commission, giving the nature and the cause of the injury (§ 111); any time after fourteen days the claim may be filed; thereupon the Commission investigates the claim in its own way, and if required by either party gives a hearing (§ 20). We quote from section 68: "The Commission * * * shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to ascertain the substantial rights of the parties." Some of the provisions are quite unusual, and if they related to ordinary actions or proceedings in court, might with some reason be claimed to infringe upon the constitutional rights of the parties. But section 19 of article 1 of the Constitution authorizes the law and its unusual provisions. Among other things, it provides that nothing in the Constitution shall be construed as limiting the power of the Legislature to enact laws for the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation. The fact, therefore, that the practice is unusual is no objection to it, as the Constitution authorizes the Legislature to create this new remedy and the practice to enforce it.
If the exact cause of the injury is not made plain to the Commission, the employer is at fault, as he has failed properly to report the accident. He has every means of knowing the facts and should not benefit by withholding them. 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.
The State, in a way, assesses upon such hazardous employment such a sum as may fairly meet its risks, collecting the money in advance, or requiring security for its payment, for the benefit of the injured employees. The amount it collects in each year from each employment is based upon the number of men employed, the payrolls and the particular nature of the employment. The Commission, however, permits an employer to contract for insurance, by which, in case of an injury, the amount of the award shall be paid by the insurance carrier to the State for the benefit of the injured persons, and also permits the employer to be a self-insurer upon his satisfying the Commission that he is able to pay and will pay to it the sums necessary to meet awards for the injuries received by employees in his business. In effect, therefore, the State, through its Commission, undertakes to make compensation for injuries received in these hazardous employments from moneys which the employer has in advance paid or secured to it under a law which declares that such payments may be treated as a proper charge of the cost of operating the business, thus in the end putting the premium upon the ultimate consumer. In contemplation of the act, and the constitutional provision under which it was passed, accidents in the employment finally fall upon the consumer and not upon the employee or employer, the State Commission standing between the employee, the employer and the ultimate consumer.
We, therefore, have a situation in which, 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. The administrators of the fund are not in a favorable position to contend that if he is injured while in the course of his employment the fund is not liable to pay the loss. It is not inequitable that as against the fund the injury should be assumed to be within the law, unless otherwise shown. An employer who is insured in the State fund has been compelled to pay in advance for the injuries arising in his employment, and upon that account, by section 53, is granted immunity from all other liability on account of accident to his employees, and the employees are deprived of all other remedies. If the act is to be construed technically it deprives the employee of its beneficial provisions and the employer from the protection which he has paid for and the State has undertaken to give. The law should be liberally construed so as to give to the employee and the employer alike the protection manifestly intended, and to cast upon the fund the burden which equitably rests upon it. The State, under heavy penalties, has compelled the employer to pay to it his money on the promise that it would disburse it to protect him from loss on account of injuries incurred in such employment. The State must be held strictly to the obligation it has incurred.
The compensation awarded by the Commission is payable periodically in accordance with the method of paying wages, and in death cases may continue during the lifetime of the beneficiary, and in other cases may continue for a long period of years. No one can be a self-insurer unless he satisfies the Commission of his financial ability to continue all payments awarded, and he may be required to deposit securities to insure such payments. (§ 50.) The risks and changes of business are such that it is evident that the ordinary individual or firm cannot qualify as a self-insurer. The large corporations whose continuous existence is assured, or who are able to deposit the securities required, can qualify as self-insurers. In effect, therefore, the law requires that the ordinary individual and firm, and perhaps the great mass of employers, must insure in the State fund or otherwise. The law, therefore, should be construed on the theory that it contemplates insurance in the State fund, and employers who insure in the State fund or otherwise, or who are self-insurers, should fairly be governed by the same rule. It is the right of the individual employee and of the employer that they should be treated the same as all other employees and employers within the act.
The Legislature may from time to time change the rules of evidence and procedure, and a party's constitutional rights ordinarily are not affected thereby. It may cast the burden of proof upon any party, and may make certain acts prima facie evidence of facts if the acts by any reasonable intendment bear upon or tend to establish the facts. The rule of presumption and the provisions of the act do not, therefore, infringe upon the due process of law guaranteed by the Constitution. ( People v. Johnson, 185 N.Y. 219.)
But the presumption is fairly warranted by the constitutional provision mentioned.
We conclude, therefore, that the Commission was justified in determining that the employee sustained his injury in the course of hazardous employment. The award should, therefore, be affirmed.
All concurred; HOWARD, J., in result.
Award affirmed.