8. BUILDING FIRE FOR WARMTH

The

An employee was helping to load gravel upon wagons from a gravel bank. While waiting for a wagon he started an open-air wood fire for warmth. A spark destroyed one of his eyes. Commission granted compensation to him upon the recommendation of Commissioner Lyon, who said:

MALANDRINO v. SOUTHERN NEW YORK POWER AND R. R. CORP., S. D. R., vol. 20, p. 438, Bul., vol. 5, p. 28, July 1, 1919.

LYON, Commissioner: There is a good deal of controversy over the question whether in building a fire, the claimant did anything more than to follow a not uncommon custom among the workmen in this sand bank on these cold mornings, it apparently being conceded that if it was customary for the workmen to build these fires, then the accident arose out of and in the course of the employment. It is stated that the men had been forbidden to build these fires and had been allowed the privilege of using a greenhouse in the near vicinity for the purpose of having a warm place in which to eat their lunch and of warming themselves, but the testimony on this point also leaves the matter very much in dispute. There is evidence in the record from which a finding might be made that the claimant was only following the custom in building the fire which was the cause of his accident, but the testimony upon which such a finding could be made is not very convincing because it is strenuously denied by various witnesses who are in position to know. I, therefore, put my decision on the broad ground that a workman does not take himself out of the scope of his employment within the meaning of the Compensation Law when he does upon his employer's plant the things which an ordinary workman may be expected to do for his own convenience or comfort, as, for instance, preparing food, securing drink or attending to calls of nature. Such seems to have been the view of the courts in cases like that of Chludzinski v. Standard Oil Company (176 App. Div. 87), where an employee on his employer's plant entered a building which so far as the evidence shows, no duty to his master required him to enter, and the case of Etherton v. Johnstown Knitting Mills (184 App. Div. 820), where an employee going to the basement of the employer's plant to put a bottle of tea on the boiler in order to have it kept warm for her mid-day lunch, slipped and fell on the stairway. In neither of these cases can it be said that the act which the employee was doing contributed directly to the benefit of the employer or to the furtherance of the work in hand. It is true that many cases have been decided on the ground that the specific thing being done when the accident happened was directly in furtherance of the employer's work or of his interests, but I do not think this is the exclusive ground on which a finding can be made that the accident arose out of the employment.

The decisions in both of these cases referred to above, in my opinion, have to rest upon the proposition that an employee has the right to do in the course of his employment the common things which men generally do under such circumstances. It seems to me to have been the most natural thing in the world for these workmen on this cold morning when they had nothing to do in the absence of the teams that were drawing the sand and gravel, to

attempt some sort of artificial warmth and that the employer might anticipate that they would do so. It is true that the building of the fire did not, except in a very remote degree, further the general purposes of the employer, but certainly the employer ought not and probably did not object to his workmen making themselves as comfortable as possible in the intervals when their work was not pressing, and it seems to me that, on these general principles, inasmuch as this employee was injured in the course of his employment and on the employer's plant while doing something which is not expressly forbidden but might have been anticipated by the employer, he has not taken himself out from under the protection of the statute and I advise an award for loss of the eye.

PERKINS and MITCHELL, Commissioners, concur.

The Appellate Division heard argument in the Malandrino case, January 13, 1920.

9. RELIEF OF NATURE

The courts have affirmed benefits for two unwitnessed accidental deaths in which the employees were possibly seeking relief of nature. In one case an elevator operator fell down the elevator shaft: White v. Argus Co., S. D. R., vol. 15, p. 632, Mar. 13, 1918; 186 App. Div. 924, Nov. 13, 1918; in the other, a street sweeper stepped between two railroad freight cars and was run down by them upon their sudden starting: Krawczyk v. MacNamara, Death Claim, No. 26810, Feb. 28, 1918; 187 App. Div. 911, Jan. 8, 1919; 226 N. Y. Rep. 567, Mar. 11, 1919. Earlier cases are given in Bulletin 81, pages 197, 198, and Bulletin 87, page 160.

10. WAITING, RESTING OR SLEEPING

Accidents happen during leisure or idle moments due to waiting for work, shutting down of machinery and other causes; or during rest intervals, regular or intermittent, occurring with or without the employer's consent and approval. Occasionally an employee falls asleep and is hurt while sleeping. Compensation of two idle moment cases has been noted in Bulletin 87, pages 153, 156; also denial of compensation in two cases of falling asleep, with texts of court opinions, pages 154-156. Affirmation of award for death of a laborer injured while standing on the street awaiting arrival of the truck that it was his duty to load has been noted in the Downey case, below, page 126.

In contrast with the sleeping cases of Bulletin 87, pages 154156, awards have been affirmed for accidents to employees while asleep in Abrial v. Greasonia Paper Mills, S. D. R., vol. 17, p. 571, Bul., vol. 3, p. 217, May 29, 1918; 185 App. Div. 920,

In

Sept. 26, 1918, and Sumpter v. N. Y. Consolidated R. R. Co., Death File, No. 877, July 3, 1918; 187 App. Div. 911, Jan. 8, 1919. In the Abrial case, a superintendent had told the injured employee to take a rest from his long and exhaustive work. the Sumpter case, a railway station porter died apparently of asphyxiation while taking a nap in a locker room and, the accident being without witness, the employer was at disadvantage of the law's presumptions.

A lumber handler was awaiting arrival of his employers' truck at a railroad freight car which he was to help unload. He went to a telephone to ascertain from his employers when the truck would arrive. Shortly after the telephone conversation a train ran down and killed him not far from the place of telephoning and the freight car. The Commission awarded death benefits to his widow. The accident having occurred without witness, the Appellate Division said that the presumptions of the law favored the award. It unanimously affirmed the award, with opinion, as follows:

SMITH V. OESTERHELD & SON, 189 App. Div. 384, Nov. 12, 1919.

H. T. KELLOGG, J.: On the day that the deceased was killed he had gone, at about seven in the morning, to the private railroad yard of the Hurlburt Motor Company in the city of New York, to unload a carload of lumber. This yard lay to the west of Third avenue, while the yard of the Central Railroad of New Jersey lay to the east of that avenue. The trucks which were to remove the lumber did not arrive, so at about eight o'clock the deceased telephoned to the office of his employer inquiring the cause of delay. He was told that the trucks were on their way. The first truck arrived and was loaded about ten o'clock. The deceased again telephoned to his employer, asking when the next truck would arrive, and was advised that it would be one o'clock before it came. At about ten-thirty a telephone message came in to the employer announcing that the deceased had been run over and killed in the yards of the Central Railroad of New Jersey. Shortly before the deceased was killed he was seen crossing the tracks of that railroad on the easterly side of Third avenue, evidently heading for the railroad offices. It is not known definitely from what point the deceased had sent in the telephone calls to his employer, but there was a telephone at the offices of the railroad near the place where the deceased was killed. The Commission assumed that the deceased was on his way to telephone his employer once more when he was struck and killed. No one knows the purpose to serve which the deceased had gone upon the railroad lands. He may have gone there in aid of his master or upon business or pleasure of his own. There being no substantial evidence to indicate the contrary, it must be presumed that his journey was made to serve his master, and that he was killed by an accident arising out

of and in the course of his employment.

(Matter of Driscoll v. Gillen & Sons Lighterage, Inc., 226 N. Y. 568, affg. 187 App. Div. 908.) The award should be affirmed. Award unanimously affirmed.

11. OPENING A WINDOW

A druggist's employee, making glycerite of tannin, cut his little finger while opening a window to let the fumes escape. Upon appeal from an award for loss of the finger from ensuing infection the insurance carrier protested that opening a window was an ordinary act not specially applicable to the hazardous work in process. The Appellate Division reversed the award and dismissed the claim upon the ground that the employment was not hazardous: Freess v. Kleinau, S. D. R., vol. 21, p. 179, May 27, 1919; App. Div. -, Dec. 29, 1919. Opinion in the Freess case is given above, page 67.

12. DOING OWN LAUNDRY WORK

An employee in a hotel laundry, together with other hotel employees, received board, room, stipulated wage and permission to use the laundry after hours for laundering her own clothes. While in the laundry one evening washing her clothes, she broke her wrist. The Commission awarded compensation to her upon theory that in doing her own laundry work she was "in some sense working out her own payment," and that her case was "somewhat analogous to the case where an employee, after business hours, goes to his employer's premises for the purpose of collecting wages and receives an injury" (S. D. R., vol. 14, p. 618, Bul., vol. 3, p. 9). The Appellate Division affirmed the award without opinion, two justices dissenting (183 App. Div. 914). But the Court of Appeals reversed it and dismissed the claim, with opinion, saying that her evening laundry work with her own clothes was "entirely disassociated with the work of her employer." The opinion is as follows:

DALY V. BATES & ROBERTS, 224 N. Y. 126, July 12, 1918. HOGAN, J.: The employer is engaged in conducting a hotel in the city of New York. The claimant was employed as a laundress in the hotel. Her hours of employment were usually from 7:15 A. M. to 5 or 5:30 P. M. As compensation for her labor claimant received as wages a money consideration, boarding and lodging and the privilege after the regular working hours of the day to use the plant of the employer to do her laundry work.

On March 12, 1917, the claimant finished her work at half past four o'clock in the afternoon. During the evening, while she was engaged in the laundry doing her personal laundry she sustained injury to her wrist. The Industrial Commission determined the injury was accidental and arose out of and in the course of her employment and made an award therefor. Upon appeal the determination of the Commission was affirmed by the Appellate Division.

In Matter of Heitz v. Ruppert (218 N. Y. 148, 151) we sought to establish general principles applicable to a construction of subdivision 7 of section 3 of the Workmen's Compensation Law, a recitation of which will bear repetition here: "the statute does not provide an insurance against every accident happening to the workman while he is engaged in the employment. The words arising out of and in the course of employment' are conjunctive, and relief can be had under the act only when the accident arose both out of' and in the course of' employment. The injury must be received (1) while the workman is doing the duty he is employed to perform, and also (2) as a natural incident of the work. It must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly con. nected with the work."

Applying the principles stated to the case at bar, we are led to the conclusion that the injury to claimant did not arise from or in the course of her employment. She was employed to perform the laundry work of her employer. Such employment was to be performed within established hours. On the day in question claimant had completed her labors for her employer some few hours before the happening of the accident. Her duty to her employer did not require her presence in the laundry again until the following morning. The accident occurred in the evening while she was engaged in doing work personal to herself. At that time she was not engaged in the performance of any duty she was employed to perform, or directly connected with or incidental to the work of the employer, but her labor there was entirely disassociated with the work of her employer. The fact that she was permitted to use the laundry for her personal benefit did not change the relation of the parties. (Brienen v. Wisconsin Public Service Comm., 163 N. W. Rep. 182.) Had the claimant remained in her room in the hotel and engaged her time in mending her clothing, and while so engaged met with an accident by reason of using a scissors, it could scarcely be held that such injury would arise out of and in the course of her employment or was incidental thereto. (Matter of De Filippis, 170 App. Div. 153; affd., 219 N. Y. 581; Hallett's Case [Mass., May 28, 1918], 119 N. E. Rep. 673; Griffith v. Robbins, Court of Appeal, England, December 14, 1916, 10 Butterworth's Workmen's Compensation Cases, 92.)

In the latter case a girl employed as a parlor maid was sitting in the kitchen, occupying her spare time in mending a rent in her dress. Hearing a bell rung by her mistress, she left the darning needle in her dress and went to answer the bell. In walking to the door she managed in some way to drive the needle into her knee, breaking it off short, causing her serious injury. An award was made in her favor, which was reversed by the Court of Appeal of England, and it was there held there was no evidence to show that the injury was due to any risk incidental to her employment and that the accident did not arise out of her employment.