Opinion
July 9, 1915.
Edward E. Reardon, for the appellant.
Otto A. Glasberg, for the respondent.
The action is brought under the Employers' Liability Act and the complaint alleges that plaintiff was in defendant's employ as a driver engaged in driving a three-horse vehicle; that one of the horses was vicious and accustomed to attack and bite mankind, and known by defendant to do so; that on November 14, 1914, the horse attacked and bit plaintiff in the left ear, as a consequence of which the plaintiff has suffered permanent injuries, a part of his left ear having been amputated. The demurrer is for general insufficiency. It is conceded that the complaint would be proof against demurrer except for the provisions of the Workmen's Compensation Law (Consol. Laws, chap. 67; Laws of 1913, chap. 816, as re-enacted and amd. by Laws of 1914, chap. 41, and amd. by Laws of 1914, chap. 316), which as defendant contends affords the only remedy to which plaintiff may resort. As pointed out in the dissenting opinion of Mr. Justice INGRAHAM in Gropp v. Great Atlantic Pacific Tea Company ( 141 App. Div. 372, 377; judgment reversed on said dissenting opinion, 205 N.Y. 617), an action for damages resulting from an injury by a vicious animal is not based upon negligence, but that is not important in this case because the compensation provided for in the Workmen's Compensation Law is not dependent upon the negligence of the employer. Section 10 of the act provides that "Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury." The ensuing exceptions are not material to this discussion. Section 11 of the act (as amd. by Laws of 1914, chap. 316) provides that "The liability prescribed by the last preceding section shall be exclusive, except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury." There is no allegation that defendant has failed to secure the payment of compensation for his injured employees or their dependents as provided in section 50 of the act (as amd. by Laws of 1914, chap. 316), or that plaintiff has, for that reason, elected to sue in the courts. The question we have to consider, therefore, is whether the Workmen's Compensation Law provides compensation for such an injury as that which plaintiff has suffered.
As already said, under section 10 of the act the liability to which an employer is subjected by the act is to "pay or provide * * * compensation according to the schedules" contained in the act. If the schedules do not cover the injury suffered by an employee he does not fall within the purview of the act and cannot claim compensation under it, for the act provides no scale or gauge by which to determine what compensation should be provided. As to such an injury, therefore, the right to recover remains as it was before the act was passed. The schedules referred to in section 10 are to be found in section 15 and include, with considerable detail, a great number of injuries such as frequently result from accidents in industrial pursuits and such as tend to impair temporarily or permanently, wholly or partially, the ability of the injured employee to pursue his avocation. There is no mention in the schedules of an injury to or the loss of a part of an ear. It is true that it is provided generally, after the specific enumeration of the injuries covered by the act, that "In all other cases in this class of disability" the compensation shall be a percentage of the difference between the average weekly wages and the wage-earning capacity thereafter, "payable during the continuance of such partial disability." We do not consider that such an injury to the ear as the plaintiff complains of is of the same class of disability as those specified in the schedules. The latter are all disabilities tending to impair the efficiency of the injured person in the occupation in which he was engaged such as the loss of a hand or a finger, a foot or a toe. A bitten or even a partially amputated ear would not have such a tendency. Furthermore, the plaintiff's right to recover upon the facts stated in his complaint will not depend upon his employment by defendant, for any one not so employed if injured by a vicious animal known to its owner to be vicious would have an action for damages. Our conclusion, therefore, is that the injury for which plaintiff seeks to recover is not covered by the Workmen's Compensation Law, and that the complaint states a good cause of action.
The determination of the Appellate Term is, therefore, affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the courts below.
INGRAHAM, P.J., CLARKE, DOWLING and HOTCHKISS, JJ., concurred.
Determination affirmed, with ten dollars costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the courts below.