Opinion
Argued November 21, 1933
Decided January 18, 1934
Appeal from the Supreme Court, Appellate Division, Third Department.
John J. Bennett, Jr., Attorney-General ( Roy Wiedersum and Henry Epstein of counsel), for appellant.
William Warren Dimmick for respondents.
The decedent was employed as a special policeman at a picnic grounds on Long Island. Some drunk and disorderly patrons caused a disturbance there and after a scuffle left in an automobile. The decedent pursued them in a taxicab and was killed while attempting to force their car to halt.
The decedent's employment was for the purpose of protecting the picnic grounds and those who used the grounds. Arrest of disturbers of the peace was within the general scope of the decedent's employment. The evidence is sufficient to sustain an inference that the pursuit by the decedent was for the purpose of effecting an arrest in an attempt to further the interests of the employer. The decedent's action may have been ill-advised. It did not constitute an abandonment or interruption of the employment. Death arose out of the employment and in the course of the employment. The claimant was married to the decedent. She instituted divorce proceedings, but it does not conclusively appear that these proceedings were carried to a successful conclusion. The Appellate Division erred in dismissing her claim.
The award was, however, for an amount not authorized by the Workmen's Compensation Law (Cons. Laws, ch. 67). The decedent was employed as a special policeman at the picnic grounds during the warm months of the year and usually only on Sundays. There is also a suggestion that in winter he was occasionally employed by the same employer in a dance hall and ballroom. He also, it is said, conducted a "fish business." His employment as special policeman was occasional and seasonal and at a daily wage of eight dollars. Since neither subdivision 1 nor 2 of section 14 of the Workmen's Compensation Law can reasonably be applied in such case the Industrial Board attempted to apply subdivision 3 of that section. Upon testimony that special policemen working steadily in that neighborhood earned $35 per week, the decedent's earning capacity was fixed at that amount. The difficulty is that the decedent's employment was not similar to that of the usual special policeman. The decedent's employment as a special policeman was not during usual working time, but was occasional and seasonal. His earning capacity in that employment must be measured by the wages of those similarly employed. A special policeman working regularly during the usual working hours of each working day to the exclusion of other regular occupation is not for such purpose in a similar employment.
The order of the Appellate Division and the award of the State Industrial Board should be reversed and the claim remitted to the State Industrial Board to determine the wage rate in accordance with this opinion and to take such further testimony in regard to other controverted matter as they may be advised, with one bill of costs to appellant against the employer and insurance carrier.
POUND, Ch. J., CRANE, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Ordered accordingly.