158 N.E. 621 | NY | 1927
Lead Opinion
Michele Giliotti was employed as chef by the Hoffman Catering Co., Inc., which operated Hoffman's Inn at Valley Stream, N.Y., at a weekly wage of $50 together with room and board. He was engaged, not as workmen often are, from day to day but for a definite term. His status was practically that of a domestic servant in whose case it is an implied part of the contract of the employment that the employee shall sleep on the premises. He slept in a special section of the hotel provided for the help in a room that was solely his. In the early morning of Monday, October 26, 1925, a fire occurred in the hotel from causes unknown. Giliotti had retired to his room at the end of the day's work and while there was suffocated to death by the fire. Monday was his day off and he was at liberty to leave when his work on Sunday night was finished, but he might and often did remain in his room for the night.
The accident happened during the period of his employment but that is not enough. The question is whether his death was due to an injury arising out of and during the course of his employment. (Matter of Heitz v. Ruppert,
Much stress is laid on the fact that the condition of his clothing and of the bed indicated that he was dressing himself to leave the premises when the fire occurred and that under the rule laid down by this court in Matter of Lynch v. City of NewYork (
The more serious question is: Did the death arise out of his employment? He was injured not because he was engaged in some personal act, some private service to *283
himself, like taking a bath (Davidson v. Pansy Waist Co.,
Other jurisdictions have held that when an accident happens under such circumstances, it arises out of and during the course of the employment. (Holt Lumber Co. v. Industrial Comm.,
The order of the Appellate Division should be reversed and the award of the State Industrial Board reinstated, with costs in this court and the Appellate Division.
Dissenting Opinion
"In the course of employment" is a different thing from "during the period of employment." It connotes the idea that the employee is doing something which is part of his service to his *284
employer, or incidental thereto. (Davidson Co. v. M'Robb
([1918] A.C. 304.) Ordinarily, sleeping upon the premises of the employer, in a house or room furnished or leased by him, forms no part of such service. In Philbin v. Hayes (11 B.W.C.C. 85) the employer furnished huts, with sleeping accommodations, for his employees, at a nominal charge per night. During a severe wind storm a hut, in which an employee was sleeping, was blown down and the employee was injured. It was held that he was not in the course of his employment. In Murphy v. Ludlum Steel Co.
(
An accident does not "arise out of the employment" merely because the presence of the employee at the scene of an accident is occasioned thereby. (Matter of McCarter v. La Rock,
I, therefore, favor an affirmance.
CARDOZO, Ch. J., CRANE, LEHMAN and O'BRIEN, JJ., concur with POUND, J.; KELLOGG, J., dissents in opinion in which ANDREWS, J., concurs.
Ordered accordingly. *288