298 N.Y. 85 | NY | 1948
Lead Opinion
A decision of the Workmen's Compensation Board in claimant's favor has been affirmed — two justices dissenting — by the Appellate Division. The simple, yet at times abstruse, question for our determination is whether claimant suffered an injury "arising out of and in the course of" his employment (Workmen's Compensation Law, §
Rochester Manufacturing Company is engaged in the manufacture of pressure and liquid level indicators and thermometers. Claimant, thirty-eight years old, was one of its stockroom clerks. While at work on a day in January, 1946, he playfully threw a small piece of rubber tubing at a fellow-employee who was busy typewriting and then, to escape detection and avoid being seen, ducked, bending low. In so doing, he struck his nose on the handle of a hand truck and sustained rather serious lacerations, which culminated in a permanent facial disfigurement. *87
Liberally though the Workmen's Compensation Law is to be construed (§ 21), the courts must give heed to its provisions that the injury arise not only "in the course of" but also "out of" the employment. Thus, an employee who initiates or instigates a particular bit of horseplay — constituting a purposeful interference with the person and having no sanction in ordinary conduct — is not entitled to the protection of the statute (see, e.g., Matter of Gaurin v. Bagley Sewall Co.,
Perhaps, at some future time, new legislation may render industry responsible for all injuries sustained by employees upon the employer's premises during working hours; but, as the statute now stands, an injury is not compensable unless it is one "arising out of" as well as "in the course of" the employment.
We cannot say on the record before us whether claimant's act — which resulted in his injury — was a single, isolated act or one of a series of similar incidents generally participated in, *88 to the employer's knowledge, by employees, sufficient to regularize such conduct and stamp it as part and parcel of the employment. Accordingly, the matter should be remitted to the Workmen's Compensation Board so that further testimony may be taken on this subject.
The order of the Appellate Division and the award of the Workmen's Compensation Board should be reversed, with costs in this court and in the Appellate Division, and the claim remitted to the Workmen's Compensation Board for further proceedings not inconsistent with this opinion.
Dissenting Opinion
Claimant, in the course of his work for his employer, was walking through a storeroom when he playfully tossed a small piece of rubber at a girl working nearby. Claimant then suffered an injury when, ducking his head so that the girl would not see him, he hit his face on the handle of a truck belonging to the employer and standing in the storeroom. I cannot agree that the inconsequential, sportive act of claimant, in tossing the piece of rubber, was such a complete deviation from his employment that he is barred from receiving workmen's compensation even though he was on an errand for his employer at the time, was in the employer's place of business and received his injuries from a piece of equipment belonging to his employer. No decided case goes so far as to dismiss such a claim. The case which should be followed here, I think, is Matter of Miles v. Gibbs Hill,Inc. (
Nor can I agree that, to justify an award for injuries sustained from pranks or horseplay, it must be shown that the incident was one of a series, or pursuant to the custom in the particular place. The fact that such conduct is customary is one of the *89
reasons given in some cases, such as Matter of Industrial Comr.
(Siguin) v. McCarthy (
The order should be affirmed, with costs.
LOUGHRAN, Ch. J., LEWIS and THACHER, JJ., concur with FULD, J.; DYE, J., concurs for reversal but votes to dismiss the claim; DESMOND, J., dissents in opinion; CONWAY, J., taking no part.
Order reversed, etc.