Claim of Smallwood v. Market Haulage, Inc.

Herlihy, P. J.

These are appeals by the employer Market Haulage, Inc. and its insurance carrier from decisions of the Workmen’s Compensation Board, filed October 30, 1970, February 8,1972 and May 26,1972.

Claimant was injured on July 20, 1966 while unloading a. freight car at a warehouse operated by the Grand Union Company at Mt. Kisco, New York. He filed a claim for compensation on November 9, 1966 listing his employer as Grand Union, and alleging the injury occurred during this employment. Grand Union submitted an employer’s report of accident dated October 5, 1966, wherein it described claimant’s job as a temporary warehouseman, and reported that the accident occurred while claimant was unloading a freight car. After several hearings, the Referee, on or about April 20, 1967, found accident, notice and causal relationship, and made awards to claimant.

On October 3,1968, Consolidated Mutual Insurance Company, the compensation carrier for Grand Union, alleged that Market Haulage, Inc. was responsible, in part, for the liability by reason of a general and special employment relationship. Thereafter, Market Haulage, Inc. and its carrier, General Fire and Insurance Company, were placed on notice for a hearing scheduled on May 8,1969. From the record, it appears that Market Haulage was obligated to load Grand Union’s products into tractor-trailers and deliver them to Grand Union’s retail outlets.

Claimant was initially employed by Market Haulage to load the trailers at the Grand Union warehouse.

It is undisputed that claimant was injured while he was unloading a freight car for Grand Union on Grand Union’s premises. It is also undisputed tho,t Market Haulage was a trucking company, and its employees loaded products from a loading platform on its trucks for delivery to Grand Union stores. The bookkeeper for Market Haulage testified that its employees did not unload freight cars when working for Market Haulage.

The hoard found that the claimant was jointly employed by both Market Haulage Company and the Grand Union Company ”.

*457At the hearing before the board panel upon the appeal to it, the claimant testified that his foreman at Market Haulage would send him over to report to the Grand Union foreman for work when Market Haulage had no work. The record establishes that Market Haulage was the dominant and initial employer of the claimant at the warehouse premises. The offering of causal employment by Grand Union would appear to coincide with the contract requirement between the two employers that Market Haulage have available sufficient employees for transportation services at the Mt. Kisco site. The claimant also testified before the board panel that on one or two occasions he had been directed to return to work for Market Haulage after having commenced work for Grand Union.

The record contains evidence that claimant’s actual employment by Grand Union was at the direction of his superior in Ms employment with Market Haulage. Upon that basis and upon the foregoing facts, it clearly appears that, while the claimant was at the employment premises of Mt. Basco, he was under the simultaneous control of both employers as he had been sMfted from one to the other during the course of a working day and that the furnishing of adequate employment opportunity to the claimant was mutually beneficial to both Grand Union and Market Haulage for the performance of the Market Haulage contract. While the record establishes that the dual employment is separate and distinct in terms of knowing at all times who the literal employer was, the record does sustain the inference that the employment opportunity at the Mt. Bisco site for the claimant was actually for the benefit of both employers.

The decisions should be affirmed, with one bill of costs to respondents filing briefs.