Opinion
276 A.D. 803 93 N.Y.S.2d 110 SHELDON v. UNITED STATES et al. Supreme Court of New York, Third Department November 28, 1949
Proceeding under the Workmen's Compensation Act in the matter of the claim of Dick Sheldon, employee, opposed by United States of America, operating Montgomery Ward & Company, Inc., and Montgomery Ward & Company, Inc., employers, and Indemnity Insurance Company of North America, insurance carrier.
An award was made by Workmen's Compensation Board in favor of claimant, and the insurance carrier appealed.
The Appellate Division, Memorandum by Court, affirmed the award.
H. A. Katz, New York City, for claimant-respondent.
George A. Garvey, New York City (Charles P. Barre, New York City, of counsel), for appellant.
Thomas W. Madden, New York City (Harold W. Bancroft, New York City, of counsel), for respondent Montgomery Ward & Co., Inc.
Nathaniel L. Goldstein, Atty. Gen. (Roy Widersum, Gilbert M. Landy, Asst. Attys. Gen., of counsel), for respondent Workmen's Compensation Board.
Before FOSTER, P. J., and HEFFERNAN, BREWSTER, DEYO, and BERGAN, JJ.
PER CURIAM.
Appeal by the insurance carrier from an award made by the Workmen's Compensation Board.
Claimant was employed in one of the stores owned by Montgomery Ward & Co., Inc. On December 28th, 1944, pursuant to an Executive Order of the President of the United States, No. 9438, the Government of the United States took possession of this store, and the Secretary of War was directed to operate the same. The carrier appellant issued a policy of voluntary insurance running to the Government of the United States by which it agreed to pay voluntarily on behalf of the insured benefits equivalent to those prescribed by the Workmen's Compensation Law in effect where the premises were located. It also agreed not to enter any defense based on a denial of jurisdiction under any claim in which its liability under the policy was in any way concerned, unless so requested in writing by the insured. Claimant sustained an accidental injury in the nature of a heart attack arising out of and in the course of his employment. When his claim for compensation was considered the Board reformed the policy in question so as to make the appellant insurance company a carrier for Montgomery Ward & Co., Inc. This was done on the theory that the policy was secured and intended for the benefit and protection of injured employees of the latter company.
Appellant contends that the Board had no jurisdiction over the United States operating entity or the carrier, and also that it had no power or authority, under the law, to reform the policy in question.
We think it clear that the Government of the United States did not appropriate the business of Montgomery Ward & Co., Inc., and took possession simply as a manager so that the business might continue notwithstanding the existence of a strike during the war period. It was thus operating the business for the benefit of the Company, and hence, in our opinion, it follows that the policy of insurance secured was clearly for the benefit and protection of the Company, as well as its employees. It is quite inconceivable that any claim for compensation arising under the policy could be tried in any other forum except before the Workmen's Compensation Board of the State of New York. We doubt whether it was necessary to reform the policy in view of the circumstances, but this doubt is of little consequence since the effect of reformation had no greater result than might have been arrived at otherwise.
Award unanimously affirmed, with costs to the Workmen's Compensation Board.