Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Harry H. Kingsley, Claimant, Respondent, for Compensation to Himself under the Workmen’s Compensation Law, v. William F. Donovan, Employer, and the Fidelity and Casualty Company of New York, Insurance Carrier, Appellants.
Third Department,
November 10, 1915.
Workmen’s Compensation Law—injury while cleaning motor cycle — property of employee used in master’s business.
An employee who was injured while cleaning a motor cycle which, although owned by him personally, he used in his master’s business with his knowledge and consent, is entitled to an award under the Workman’s Compensation Law.
Smith, P. J., dissented.
Appeal by William F. Donovan and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 28th day of January, 1915.
. The facts are stated in finding 2 of the Commission, as follows: “On said date, and for some time prior thereto, said Kingsley had come to his work on a motor cycle which was owned by himself, and had used the said motor cycle for going to and from jobs, with the knowledge and consent of his employer; but was not paid extra for the use of the motor cycle by the employer. On said date he arrived at his employer’s place of business at seven a. m. to start work, and placed his motor cycle against a tree on the property adjoining the *829premises of his employer and started to clean the clutch so that the machine might he in proper working order for the day. While so doing he caught his fingers in the chain guard, which resulted in the traumatic amputation of the distal phalanges of the first and second fingers of the right hand.” The Commission also finds that the injuries arose out of and in the course of his employment. This finding of fact is attacked as against the evidence.
Dickinson & Duffey [Henry A. Dickinson of counsel], for the appellants.
Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy, of counsel], and Jeremiah E. Connor, for the Workmen’s Compensation Commission.
Kellogg, J.:
The appellants contend that the accident was not one arising out of and in the course of the employment. There is some evidence • tending to prove those facts, and under sections 20 and 21 of the Workmen’s Compensation Law the decision of the Commission is conclusive upon the facts. Clearly if the motor cycle was only used for the convenience of the claimant in bringing him to and from his place of work, the case would not be within the act. But the evidence shows that from time to time it was used in the business in going to and from the work off the premises, and. that at other times when it had been cared for during working hours no question had been raised by the employer. It could not be used in the business unless kept in proper condition. The fact that the workman was engaged upon it near the place of business and during business hours, and that it was frequently used in the business, do not make the findings of the Commission unreasonable. The award is, therefore, affirmed.
All concurred, except Smith, P. J., dissenting.
Award affirmed.