189 A.D. 306 | N.Y. App. Div. | 1919
Walter Cole, the deceased employee, ceased working at twenty minutes after eleven o’clock in the evening. Twenty minutes thereafter a fire broke out in one of the buildings of the employer’s plant and burned all night. About four o’clock in the morning Cole was assisting other firemen to extinguish the fire when the walls of the building collapsed and he was buried' thereunder and killed. Compensation has been awarded to his mother and is resisted on the ground that the accident did not arise out of or in the course of the employment.
The Commission has made inconsistent findings. It has found that Cole did not leave the premises of the employer after he ceased his usual employment on the night in question. It also adopts as part of its findings the facts stated in the opinion of the Commission. In such opinion it is stated that it cannot be definitely ascertained whether or not the
Cole was an associate member of a volunteer fire department in the village of Peekskill where the fire occurred. When a vacancy occurred in the active membership of the department it was filled by one of the associate members. Associate membership conferred certain privileges but did not involve the obligation of responding to alarms of fire. Such members, however, frequently did render voluntary assistance in fighting fires and their usefulness in that particular enhanced the probabilities of their appointment to active membership when vacancies occurred in the latter body. It appears that after the death of Cole the village paid the sum of $1,500 under section 205 of the General Municipal Law (as amd. by Laws of 1914, chap. 400), which provides for such payment in the ease of an active member of a volunteer fire company who “ dies from injuries incurred while in the performance of his duties as such fireman.” As stated, Cole was not an “ active ” member of the company but the village recognized the fact that he was performing the duties of an active member and acknowledged its liability accordingly.
Reliance is placed by the respondent on the case of Matter of Grieb v. Hammerle (222 N. Y. 382). In that case emphasis is given to the fact that the employer specially requested the particular service which the employee was rendering out of his regular working hours at the time when he was injured and which was of the same nature he was accustomed to perform for his employer. Here there was no request. The employer was not at liberty to make such a request nor to accept or reject the services of any person in extinguishing the fire when
It seems to me that the accident to Cole did not arise out of or in the course of his employment nor was it incidental thereto. The accident occurred while he was rendering services as a fireman and while he was subject to the control and direction of the chief engineer of the fire department and not of his employer. The fact that the fire occurred on the premises of his employer was a coincidence. If it had occurred elsewhere the legal aspect of the case would not be different. Cole may have responded more willingly because the fire was on his employer’s premises. It is impossible to determine whether he did or not. It is immaterial. No duty required him to act. No request to do so came from his employer. His allegiance and duty were to the organization with which he was acting, and to the orders, direction and control of its chief engineer alone he was subject.
We do not hold that if the deceased pursuant to a request of his employer had acted as a fireman with the acquiescence of the chief engineer of the fire department and subject to his orders liability would not exist on the part of the appellants. But such request by the employer was not expressed and the circumstances clearly are not such as to justify an inference of an implied request even assuming that an implied request would create liability against the appellants.
It appears furthermore that the employer paid the family of the deceased $1,000 after the accident, which was not considered in making the award. But independently of that fact for the reasons heretofore stated the claim should be dismissed.
All concurred, except John M. Kellogg, P. J., dissenting.
Award reversed and claim dismissed.