284 A.D. 51 | N.Y. App. Div. | 1954
The Workmen’s Compensation Board has made an award of compensation to claimant for disability arising from a fractured leg. From this award the employer and its carrier have appealed.
The facts are simple and not in dispute. Claimant was a policeman employed by the City of Niagara Falls. At four o’clock in the afternoon of November 14, 1951, he reported to
Under rules and regulations adopted by the city all employees of the police force are deemed to be. always on duty subject to such relief therefrom as shall be allowed by proper authority, and have the same responsibility as to the suppression of disturbances and arrests of offenders as when on post duty. The chief of police of the city testified that policemen work in three shifts, and that claimant’s only assigned duty was that already indicated, but he was nevertheless considered to be on duty twenty-four hours a day. Relief under the regulation meant that a policeman was not supposed to leave the confines of the city without permission from his superior.
On this state of facts the board found claimant to be an outside policeman, subject to call twenty-four hours a day, and that hence his accident arose out of and during the course of his employment. We are constrained to disagree with this conclusion as a matter of law.
The statute uses the conjunctive in providing that only ‘ ‘ accidental injuries arising out of and in the course of employment ” are covered (Workmen’s Compensation Law, § 2, subd. 7). An award is justified only when the accident arises both ‘ ‘ out of ’ ’ and “ in the course of ” employment. In construing these terms it has been authoritatively held that the injury must be received while a workman is doing some duty he is employed to perform, and as a natural incident of his work (Matter of Heits v. Ruppert, 218 N. Y. 148). This general rule has been diluted with some refinements but none of these aid the claimant here.
Quite evidently the board places its decision on the simple grounds that claimant was an outside policeman and subject to call twenty-four hours a day. Outside workers whose work is of such a nature that they have no fixed place in which their work is done are usually covered from the time they leave home until they return (Matter of Theyken v. Diplomat Products, 268 N. Y. 658; Matter of Fronce v. Prosperity Co., 255 N. Y. 613; Matter of Faulkner v. Stratton-Amsterdam Corp., 245 N. Y. 542). This rule, however, does not cover outside employees who are required to report first to a place of business before they begin their work and check out at the same place when they retire at night (Matter of Bennett v. Marine Works, 273
The award should be reversed and the claim dismissed.
Foster, P. J., Bergan, Coon and Imrie, JJ., concur.
Award reversed and claim dismissed, without costs. [See 283 App. Div. 986.]