121 N.E. 766 | NY | 1919
We are unable to see how the award in this case can be sustained. As found by the industrial commission the claimant was in the employ of defendant Menihan Company, which was engaged in the manufacture of shoes, and his duties consisted in marking soles with a rubber hand stamp. At the time of the accident he "had crossed the room in which he was working to talk to a fellow-employee who had been drafted and who would be required to leave work on account of the draft in a little while. Di Salvio wished to say good-by to the drafted man before he went to the front, and while leaning on the bench connected with the splitting machine which was being operated by said employee, the right arm * * * was caught in an unguarded cog-wheel, and he sustained the injuries * * * (for which the award has been made). At the time that * * * Di Salvio walked across the room to greet his fellow-employee, he had finished the work that had been assigned to him and was awaiting the arrival of more work."
In our opinion the accident did not in any degree arise out of or in the course of claimant's employment.
The courts have been liberal, as they should be, in so interpreting workmen's compensation statutes as to extend in many cases the relationship of employee to acts which seemed to be outside of the strict and ordinary lines of duty, as a basis for compensation. In accordance *126
with this policy it has been held that the accident arose out of and in the course of employment where an injury happened to an employee eating his dinner upon his employer's premises in accordance with express permission of the latter or usual custom (Mann v. Glastonbury Knitting Co.,
And this court perhaps went farther than any of these cases in extending the benefits of a compensation act when it held, as it did, in Matter of Waters v. Taylor Company (
In each of these cases an award was sustained because the court was able fairly to say that between the work for which the employee was engaged and the disputed act which led to the accident there was either naturally or as the result of some act of the employer or of custom a real relationship which brought the accident within the range of employment, and, therefore, it could be said to have arisen out of and in the course of the employment.
But in the present case we search in vain for any such feature or relationship. There was no connection between the employment for which claimant was engaged, of marking soles, and his trip across the shop to say good-by to a fellow-employee. This act did not enable him either directly or indirectly, in any tangible sense, the better to perform his work, discharge his duties or carry forward the interests of his employer. It was not a natural incident to the work for which he was hired. It did not grow out of any emergency where he was *128 justified in taking an unusual step to protect his employer's interests. It was simply and solely the expression of a private desire and the consummation of a personal purpose. However natural and even commendable his act may have been it was neither beneficial to his employer nor to himself in the way of completing and performing his work.
The impulse may be, not unnaturally, to say in justification of it that an employee ought not to be compelled to stand idly at his post while waiting for work and that claimant's deviation from his proper course was only by a few feet. But these reasons will not stand analysis. So far as the first one is concerned, as has been pointed out, it would doubtless be possible for an employee temporarily out of work, and if he could do so without interfering with his duties, to seek some proper and available place for rest without destroying his relation of employee. And so far as concerns the second one, the conduct of an employee in a crowded machine shop is not to be measured by mere distances. In this case claimant went far enough to exchange a perfectly safe occupation for a condition of danger and accident. After all other considerations, the controlling and inevitable question remains whether it is part of the employment of an employee in a shop, hired to perform simple and fixed duties, to leave these and visit his fellow-workmen on errands of a purely personal character utterly unconnected with his regular duties. We think that the answer to this question is self-evident unless we are to extend the relation of employment for purposes of the Compensation Act over areas which will not only be new but difficult to define by any certain or logical boundaries.
The tests of such a claim as this were succinctly stated by Judge POUND in Matter of Heitz v. Ruppert (
Claimant's injury does not survive these tests and his case comes within the principles of Matter of O'Toole (118 N.E. Rep. [Sup. Judicial Court of Massachusetts] 303), where it was held that accidental death occurring to a decedent who had temporarily left his employment to talk with a fellow-employee about personal matters could not be said to have arisen out of and in the course of his employment so as to become the basis for a claim; ofReed v. Great West. Rway. Co. (78 L.J.K.B. 31), where it was held that an engine driver who had left his engine while at rest and crossed a siding to receive from a friend a book unconnected with his duties, was not so engaged in his employment that an injury then received by him would be the basis for a claim under the Compensation Act; of Bischoff v. American Car FoundryCompany (157 N.W. Rep. [Supreme Court of Michigan] 34), where it was held that an employee who transgressed his instructions in order to assist a fellow-employee in the repair of a machine could not recover compensation for an accident then arising, although the injured employee thought that his acts were for the benefit of his employer; of Smith v. Lancashire, etc., Ry.Co. (1 W.C.C. 1), where a ticket collector having finished his duties tarried on the footboard of the car for a moment to speak to a passenger and was injured; of Spooner v. Detroit SaturdayNight Co. (153 N.W. Rep. [Supreme Court of Michigan] 657), where an employee who was injured while conveying some fellow-employees in an elevator to their work as a favor to them and which act was outside of his line of duty was denied workmen's compensation; ofMatter of Gifford v. Patterson, Inc. (
We think that the order of Appellate Division and award of the industrial commission must be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the industrial commission.
COLLIN, CUDDEBACK, HOGAN and McLAUGHLIN, JJ., concur; CHASE and CRANE, JJ., dissent.
Order reversed, etc.
