191 A.D. 300 | N.Y. App. Div. | 1920
The State Industrial Commission has made conclusions of fact that “ On March 17, 1919, the day on which Saul Kass sustained the injuries which resulted in his death on that date, he resided at No. 690 Willoughby avenue, Brooklyn, New York, and was employed as a traveling salesman by Hirschberg, Schütz & Company with principal office and place of business at No. 29 East 21st street, New York city; said company being engaged in the manufacture and sale of wholesale dress trimmings.” The evidence, which is undisputed, is that the decedent on the 15th day of March, 1919, while employed as a traveling salesman by the employer, hired a room at the Hotel Kimball at Dover, N. H.; that on the sixteenth of March he caused himself to be transferred to another room in the same hotel; that on the night of the sixteenth he left word at the office of the hotel that he was not to be disturbed on the morrow, as he desired to rest; that not appearing on Monday, and his door being found locked on Tuesday morning, the eighteenth, entrance was forced and the decedent was found dead in his bed, with a gás jet open and the gas flowing freely. A local coroner pronounced the death to be accidental gas poisoning, and the question presented upon this appeal is whether a traveling salesman, under the facts here disclosed, is within the protection of the Workmen’s Compensation Law.
While the Commission has found as a fact that the employer was “ engaged in the manufacture and sale of wholesale dress trimmings,” the only evidence we find in the record is that the firm of Hirschberg, Schütz & Co. was engaged in the business of “ wholesale dress trimmings,” which does not suggest manufacturing. The primary and usual meaning of “ wholesale ” is the sale of goods in gross to retailers, who sell to consumers (30 Am. & Eng. Ency. of Law [2d ed.], 518; Kenyon v. Knights Templars Aid Assn., 48 Hun, 278, 292), and we know of no reason for presuming that the business of “ wholesale
But assuming that the employer was a manufacturer of “ articles from textiles or fabrics,” and that the decedent was away from the plant in the employment of the employer, can it be said that a traveling salesman, retiring to a hotel and injured through the negligence of the management of the hotel, is a legitimate subject for compensation? A hotel, in contemplation of law, is a temporary home (15 Am. & Eng. Ency. of Law [2d ed.], 766, and authorities there cited), and it is difficult to understand how an employee of a manufacturing plant, going to his own home and retiring for the night, can be said to have sustained an injury within the definition of the statute. The act provides (§3, subd. 7, as amd. by Laws of 1917, chap. 705) that “ ‘ injury ’ and ‘ personal injury ’ mean only accidental injuries arising out of and in the course of employment,” and surely the accident here under consideration did not arise out of the employment. The accident arose out of the negligence, not of the master, but of a third party. It was not a whit different from an accident of the same character which might have happened at the decedent’s own home after his day’s work was done. While the statute, as amended by chapter 622 off the Laws of 1916, has enlarged the liability of employers, it has not had the effect of insuring their employees generally against those accidents which are common to mankind; it is only as to accidents “ arising out of and in the course of employment.” (Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401, 405.) The act does not afford compensation for injuries or misfortunes which merely are contemporaneous or coincident
The award appealed from should be reversed.
All concur.
Award reversed and claim dismissed.
