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Attorney(S)

Merton E. Lewis, Attorney-General [ E.C. Aiken. Deputy Attorney-General, of counsel], for the State Industrial Commission. Frank Cooper, for the claimant. Dayton Bailey [ James A. Dayton of counsel], for the employer and insurance carrier.

Judges

COCHRANE, J.:

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Smart Summary

Appellate Division, Third Department — Summary of Opinion (Sept. 27, 1917)

Factual and Procedural Background

This matter was certified to the Appellate Division by the State Industrial Commission concerning a workers' compensation claim brought by Katherine Wincheski, dependent mother, for the death of Stanley Wincheski. The question certified by the Commission asked whether Stanley Wincheski, at the time he received the injuries that resulted in his death, was engaged in a hazardous employment carried on by his employer for pecuniary gain within the meaning of the Workmen's Compensation Law.

Relevant facts found by the Commission and recited by the court: the employer operated a department store and used an automobile delivery truck to deliver goods. The employer also owned a seven-passenger touring car for the family's pleasure. The deceased was employed as a chauffeur for both vehicles. On Sunday, September 17, 1916, while repairing the touring car in preparation for a pleasure trip for his employer's family, the deceased was accidentally burned by an ignited gasoline torch and later died from those injuries.

The touring car had last been used four days earlier to take home a household servant who had no connection with the department store. The touring car was occasionally used in lieu of the delivery truck when the truck was out of repair and, at times of business demand, both vehicles were sometimes used for deliveries. However, the evidence did not support an inference that the touring car was generally kept or primarily used for store deliveries; its primary and essential purpose was family pleasure and convenience. The Commission's findings were limited to these material facts, and the matter was certified to the court for resolution of the statutory question.

Legal Issues Presented

Whether Stanley Wincheski, at the time of the fatal injury, was engaged in a hazardous employment carried on by his employer for pecuniary gain within the meaning of the Workmen's Compensation Law.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Sickles v. Ballston Refrigerating Storage Company, 171 App. Div. 108	Holds that where a claimant has duties related to a hazardous business but is injured while performing duties not connected with that business, the claim does not fall within the protection of the Workmen's Compensation statute.	The court treated Sickles as directly applicable: because Wincheski was injured while performing duties for his employer's household (pleasure/convenience of the family) rather than while engaged in the hazardous employment of delivering merchandise, the claim was not within the statute's protection.

Court's Reasoning and Analysis

The court analyzed the statutory question by comparing the nature and primary use of the two automobiles and the nature of the deceased's duties at the moment of injury. The analysis proceeded in these steps:

Identify the employer's businesses and the vehicles: the employer ran a department store and used a delivery truck for business deliveries; the employer also owned a seven-passenger touring car primarily for family pleasure.
Describe the deceased's employment duties: as chauffeur he operated both the delivery truck (in connection with store business) and the touring car (primarily for family use).
Examine the facts of use: the touring car had been last used to take home a household servant unconnected to the store; although the touring car was sometimes used for deliveries when the truck was out of repair, those uses were occasional and incidental. The evidence did not support finding the touring car to be generally kept or used for store deliveries.
Characterize the nature of employment at the time of injury: because the deceased was repairing the touring car in preparation for a family pleasure ride on a Sunday, he was performing services disconnected from the employer's business (analogous to household service such as that of a cook or butler).
Apply precedent and statutory interpretation: relying on Matter of Sickles, the court concluded that injuries sustained while performing duties not connected with the hazardous business do not fall within the Workmen's Compensation Law's protection, even if the employee had other duties that were hazardous and business-related.
Reach the conclusion that the Commission's evidence did not justify treating the touring car's occasional business use as transforming the vehicle into a factor of substantial consequence in the conduct of the employer's business; therefore, the deceased was not engaged in hazardous employment carried on for pecuniary gain at the time of the injury.

Holding and Implications

Holding: The certified question is answered in the negative: the deceased was not engaged in a hazardous employment carried on by his employer for pecuniary gain at the time he received the fatal injuries.

Implications and direct effect:

The matter is remitted to the State Industrial Commission for further proceedings consistent with this decision.
The immediate consequence is that the claim, as framed by the statutory question, does not fall within the protection of the Workmen's Compensation Law under the facts found; the court applied an existing authority (Matter of Sickles) rather than announcing a new rule of law.

All members of the court concurred. The court's final pronouncement: "Question certified answered in the negative, and matter remitted to the Commission."

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Before STATE INDUSTRIAL COMMISSION. In the Matter of the Claim of KATHERINE WINCHESKI, Dependent Mother, for Compensation under the Workmen's Compensation Law for the Death of STANLEY WINCHESKI, v. SOLOMON MORRIS, Employer, and HARTFORD ACCIDENT AND INDEMNITY COMPANY, Insurance Carrier.

COCHRANE, J.:

The State Industrial Commission has certified the following question: "Was the said Stanley Wincheski at the time he received the injuries which resulted in his death engaged in a hazardous employment carried on by his employer for pecuniary gain, within the meaning of the Workmen's Compensation Law?"

The employer conducted a department store, and in connection therewith used an automobile delivery truck for delivering goods. He also owned a seven-passenger touring car for the pleasure of his family. The deceased was employed as a chauffeur, his duties being to operate both cars. On Sunday, September 17, 1916, he was repairing the touring car preparatory to taking the family of his employer out on a pleasure ride, when a gasoline torch was accidentally ignited and he received burns which caused his death. The last use which had been made of the touring car was on the previous Thursday when it had been used to take home a domestic servant employed in the household of the employer, which servant had no connection with the department store. On that occasion the car got out of repair and the deceased was engaged in overcoming this defect when he sustained his fatal injury. It appears that sometimes when the truck was out of repair the touring car was used in its place for the delivery of goods. Occasionally when the demands of the business so required, both automobiles were used at the same time for a like purpose. The evidence, however, does not warrant an inference that the touring car was generally kept or used for delivering goods from the store. Its primary and essential purpose was for the pleasure and convenience of the family. The Commission is not justified by the evidence in finding any other material facts than as above stated. It is absurd to maintain that this seven-passenger touring car, designed for pleasure and recreation, was owned and kept by the employer in connection with his department store. Its occasional use for delivering goods was merely incidental and in cases of emergency or extreme necessity, and it would be manifestly unjust to exaggerate this occasional and incidental use in such a way as to make it appear that the touring car was a factor of any substantial consequence or importance in the conduct of the employer's business. The employment of the deceased was doubtless of a two-fold nature; he rendered certain services in connection with his employer's business; he also rendered other services disconnected with his employer's business; as a chauffeur operating the automobile truck in delivering merchandise he was engaged in a hazardous employment conducted by the employer for pecuniary gain; as a chauffeur operating the touring car for the pleasure of his employer's family he was not engaged in a hazardous employment conducted for pecuniary gain. Very clearly at the time when he received his injuries he was engaged in the latter capacity. His status was similar to that of a cook or butler in his employer's household. In Matter of Sickles v. Ballston Refrigerating Storage Company ( 171 App. Div. 108) the claimant had duties to perform in connection with a hazardous business but he was injured while performing duties not so connected and it was held that the claim was not within the protection of the statute. That authority is applicable here.

The question certified should be answered in the negative, and the matter remitted to the Commission.

All concurred.

Question certified answered in the negative, and matter remitted to the Commission.

WINCHESKI v. MORRIS