Kramer v. Industrial Accident Commission

SHAW, J.

Certiorari to review the action of the Industrial Accident Commission in awarding benefits to Oscar Ohlsson, an employee of petitioner Henry J. Kramer.

The findings are, unfortunately, meager in detailing the facts upon which the commission based its conclusion. Such being the case, we may refer to the evidence, not to vary or contradict the findings of fact, but for the purpose of explaining or supplementing the same.

(Matter of Rheinwald,

168 App. Div. 425, [153 N. Y. Supp. 598].) It appears that Ohlsson was an employee of Kramer, who conducted a dancing academy in a building which was also used by him for the purpose of a residence. Adjoining the lot upon which this building stood was a lot, upon the rear of which there was a garage, reached by a driveway from the street, along which there grew some peach and palm trees, the branches of which overhung the driveway, thus interfering with the free use thereof, and some twenty-five feet from which was a

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growing fig tree. Kramer did not own this adjoining lot, but was permitted by the owner thereof to use the garage, and Ohlsson had been directed by Kramer to trim the branches of the palm and peach trees which overhung the driveway. On both lots were plots of grass, flowers, trees, and shrubbery. The evidence, without conflict, shows that Ohlsson was employed by Kramer in the capacity of a janitor, the duties of which position were to take charge of the rooms, sweep and dust the same, and in general keep them in order; and also employed as a gardener to look after and care for the grass, flowers, shrubbery, and trees growing upon both lots, and that he performed services in both capacities.

The commission found that Ohlsson was injured by accident “while in the employment of . . . Henry J. Kramer as a janitor of a dancing-hall and house and garden laborer.” (2) “That said accident and injury arose out of and happened in the course of said employment, and occurred while the said employee was performing service growing out of, incidental to, and in the course of his employment, and was as follows: While pruning a fig tree upon a lot adjacent to that occupied by his employer, and in part used by such employer, a garage used by such employer being located thereon and the driveway thereto on such property having along its border palm and peach trees which applicant had been instructed to. trim, applicant stepped upon and was pierced in the ankle by a palm thorn, which occasioned serious disability. That the pruning of such fig tree without specific instructions so to do, did not constitute misconduct on the part of the applicant or take him outside the scope of his employment, but was such an act as any employee might reasonably perform incidental to the course of his employment.”