Opinion
September 28, 1949.
Appeal from Workmen's Compensation Board.
Present — Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ.
The appellants contend that there is no proof that the deceased sustained accidental injuries arising out of and in the course of the employment and also that the deceased was an independent contractor and not an employee. On the day of his death the deceased was engaged in mowing the lawn on the employer's estate with a manually operated mower. He began work at 7:30 in the morning and continued until noon. He resumed mowing about 12:30 and worked until about 1:00 o'clock. He then sat down to rest on a porch. He complained of feeling hot and after a few minutes he fell back and commenced to cough and then frothed at the mouth. He died before a doctor, who had been summoned, reached him. The day was extremely hot and humid and the deceased worked in the sun. The medical testimony indicated that he died of myocarditis induced by heat prostration which was brought on by his working continuously for half a day in the heat and humidity. The evidence supports the finding of the board that the deceased sustained accidental injuries arising out of and in the course of his employment which caused his death. ( Matter of Hughes v. St. Patrick's Cathedral, 245 N.Y. 201.) The appellant, Morris, owned the property on which the decedent was working at the time of his death. She did not live on the property and hired the deceased, who was a gardener, to care for the lawn and shrubbery. She paid him $140 per month and he was to work two days a week. He used her tools except the lawn mower. It does not appear that she gave him specific instructions about how to do his work but a woman living nearby kept her informed as to the condition of the property. In addition she admitted that the deceased was her employee, both in a letter to carrier following his death and in her testimony before the referee. She also admitted that he was an employee in her first report of accident filed with the board. It is clear that she regarded him as an employee. The finding of the board that the deceased was an employee instead of an independent contractor is supported by the evidence. Award unanimously affirmed, with costs to the Workmen's Compensation Board.