Manigian v. Breeze Corp.

It was allegedly testified to by the petitioner that he was in the general employ of the respondent, the Breeze Corporation, and in the capacity as an assemblyman, doing general assembly work, for which he was paid by the hour. That in addition to his work in the nature of assemblying he was permitted by the respondent company to sell milk and soda water to other employees of the respondent company on the floor, working in the same room with the petitioner. That previous to the petitioner having this privilege of selling milk and soda water, his predecessor at the same bench had the same privilege; that he received a profit of one cent per bottle on the milk and soda water which he sold; that he was not in the milk business and did not sell milk to any one other than those employed on the floor in the room with him; that while lifting a box of milk bottles he fell, breaking a bottle which in turn cut his left forearm, causing the injuries in question. All of these facts were admitted by the respondent, the respondent contending that at the moment *444of the injury the petitioner was an independent contractor and not an employee of the respondent. From all of the testimony submitted, I find that the petitioner, on December 24th, 1941, was in the employ of the respondent; that the petitioner was employed as an assemblyman and by an established custom, ánd with the consent and special permission of the respondent, sold milk in the plant to employees while so employed; that such privilege of selling milk was primarily for the convenience and accommodation of the employees of the respondent; and that the petitioner received his wages independently of any momentary time expended or used in the sale of milk; and I find that at the time of the accident, the petitioner was in the employ of the respondent and that the accident arose from and out of his employment. I find that the petitioner, while so employed, injured his left forearm and hand while carrying milk bottles.

It is, therefore, * * * ordered that judgment shall- be entered in favor of the petitioner and against the respondent. * * *

John C. Wegner,

Deputy Commissioner.