first appeal the carrier stated that the injured employee was "looking on " but upon the second the Commission's amended findings stated, that he was "walking past." The order affirming the award was affirmed by the Court of Appeals without opinion, two judges dissenting (226 N. Y. Rep. 700). The Appellate Division's first opinion is as follows:

LAURINO V. DONOVAN, 183 App. Div. 168, May 8, 1918.

COCHRANE, J.: The claimant was doing his master's work. His fellowservant, Earle, by whose act he was injured on March 2, 1917, was not in the commission of such act doing the work of the master or representing him in any sense whatever. He brought into the garage where the claimant was at work a percussion cap which he had found somewhere not on the premises of the employer, and with which he was experimenting when it exploded injuring the plaintiff. Both men were chauffeurs, and the percussion cap which occasioned the injury had nothing to do with their employment. Earle in experimenting with it was merely gratifying his curiosity. The injury, therefore, did not arise "out of " the employment. (Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 10; Id. § 3, subd. 7, as amd. by Laws of 1916, chap. 622.) I do not think the case is distinguishable in principle from Matter of De Filippis v. Falkenberg (170 App. Div. 153; affd., 219 N. Y. 581) and Matter of Saenger v. Locke (220 id. 556). As stated in the case last cited: "The injury must be received 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 connected with the work." Such is not this case, and hence I

favor a reversal.

All concurred, except JOHN M. KELLOGG, P. J., and WOODWARD, J.. dissenting. Award reversed and claim dismissed.

The Appellate Division's second opinion is as follows:

LAURINO V. DONOVAN, 186 App. Div. 387, Jan. 8, 1919.

LYON, J.: This is an appeal from an award of the State Industrial Commission for the loss of an eye. On March 2, 1917, the claimant and one William Earl were employed as chauffeurs by John E. Donovan. They had been that afternoon directed by him to clean up the garage and cars. The premises of the employer consisted of a garage, dock, stable, blacksmith shop and machine shop. Laurino and other employees of Donovan had been hauling coal to the dock that forenoon. There was a pile of coal on the dock about 200 feet from the garage. Earl found an explosive cap with a copper wire attachment in the pile of coal. He brought it into the garage and was attempting to remove the wire from the cap when it exploded and struck Laurino, who was passing in the performance of his work, in the right eye, destroying the sight. The Commission awarded Laurino compensation for the loss of an eye, from which award this appeal has been taken.

Upon a former appeal the award was reversed and the claim dismissed. (183 App. Div. 169.) Upon application the order was modified, and the

claim remitted to the Commission for a further hearing. The evidence then was that the cap was found somewhere not on the premises of the employer. The evidence now is that Earl found the cap in the employer's coal then on the dock. It was the duty of Earl to acquaint his employer with the fact that he had found the cap in the coal. His failure so to do might result in the cap being put into the furnace of the employer, which might bring about an explosion, severely damaging the employer's property, and endangering life. The appellant contends that the accident did not arise out of claimant's employment. It was perhaps careless for Earl to experiment with the cap, but it was neither a sportive nor a willful act. The claimant suffered injury from Earl's acts while claimant was about his employer's business. He was engaged in the discharge of his duties when the explosion occurred. He was injured through the carelessness and neglect of a fellowworkman which was an incidental risk of his employment.

The award should be affirmed. Award unanimously affirmed.

Neither curiosity nor carelessness of the injured employee figured in the Laurino case according to the final findings. Both appear to have figured in the second garage accident. In this second accident a foreman called an automobile washer into his office to look at a revolver that had been found in an automobile. As he was passing the revolver to the washer it went off and killed him. The Commission awarded death benefits to the washer's widow and children (S. D. R., vol. 19, p. 442) but the Appellate Division reversed the award and dismissed the claim. In this garage accident, the court, in opinion, finds that the washer as well as the foreman was gratifying curiosity. It says nothing of the duty of the foreman to care for a loaded revolver found upon his employer's premises or of his carelessness in pointing the revolver at the washer as he handed it to him. It finds that an invitation from a foreman to his subordinate is not a command. The opinion is as follows:

CULHANE V. ECONOMIC GARAGE, 188 App. Div. 1, May 20, 1919.

COCHRANE, J.: The employer operated a public garage. The employee was employed to wash automobiles. The Commission has made findings as follows "On October 18, 1918, William F. Culhane was working for his employer at his employer's plant. While engaged in the regular course of his employment he was directed by the foreman in charge of the garage to examine an automatic revolver which had been found in one of the automobiles. While obeying the order of his superior, and while hoding out his hand to receive the pistol, and while the pistol was still in the possession of the foreman, it accidentally discharged and a bullet therefrom entered the chest of William F. Culhane, causing his death ten minutes later."

The foregoing findings are entirely unsupported by the evidence. Day was the foreman in charge of the garage having authority to give orders to the deceased in connection with the business. From this fact it has been assumed that whatever he said to Culhane was an order exacting from him obedience. The revolver that caused the fatal accident was in an automobile

*

which was taken to the garage. At the request of the chauffeur the revolver was taken from the automobile by Day, the foreman, and placed in a desk in the office for safekeeping. That was about two o'clock in the afternoon. It appears from the evidence that thereafter Day had no duties in respect to the revolver until such time as it might be called for by the chauffeur or owner of the car. The accident occurred after eleven o'clock. The only testimony in the case as to how it happened was given by Day and is as follows: "Q. And when next did you see the pistol? A. When I called my friend in to show it to him. Q. Did you have anything to do with that pistol as far as your work was concerned? A. Nothing at all—only just happened to pull open the drawer, and I called Will in to show it to him. Q. Will is Mr. Culhane? A. Mr. Culhane, yes. Q. Where was he when you called him in? A. He was coming in the door of the garage after being out to his supper; he had supper right in the garage and he went out to have a glass of beer after supper. Q. It was the door between the main part of the garage and the office? A. Yes, sir, a big wicker door. Q. What did you say to him and what did he say to you? A. I heard him and John Rhine coming in, and I says, 'Come in here, Bill. Want to show you a pistol I took out of a Massachusetts car to-day,' and he took it and put it against his shoulder and says, 'That's a nice one - let's look at it,' and I was just about to lay it onto his hand when she went off - it was just about slipping off of my hand onto his. Q. You had general supervision over him - told him what he must do? A. I didn't tell him what he must do - I just asked him to come in and look at the pistol."

---

It clearly appears, therefore, that Day was not acting in his capacity as foreman when he asked the deceased to enter the office for the purpose of looking at the revolver. That was not a command but an invitation. The deceased was under no obligation to comply. For his refusal to do so he could not have been lawfully discharged. Had Day invited Culhane to go across the street to examine the revolver and the accident had there occurred it certainly could not be said that either man was engaged in the performance of a duty he owed his employer. The case does not differ materially because the accident happened on the premises of the employer. Or if the two men had been engaged in a game of cards in the office and while thus engaged the accident had occurred the case would not be materially different. In either of the supposed cases both men would have been engaged outside of their duty. The two men were gratifying their curiosity in respect to the revolver and were doing nothing to further the interest of their employer. In Matter of Saenger v. Locke (220 N. Y. 556) it was said: "The injury must be received 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 connected with the work." Such is not the case here. The respondent cites the case of Laurino v. Donovan

(186 App. Div. 387). The distinction between that case and this is sufficiently indicated by a single sentence from the opinion: "He was engaged in the discharge of his duties when the explosion occurred." In the instant case neither Day nor Culhane was so engaged. They had both temporarily departed therefrom to serve a purpose of their own.

In Matter of Di Salvio v. Menihan Company (225 N. Y. 123) the injured employee crossed the room in which he was working to say good-bye to a fellow-employee who had been drafted into the military service, and while doing so was injured by machinery. The court said: "There was no connection between the employment for which claimant was engaged, of marking soles, and his trip across the shop to say good-bye 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 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." The circumstance that Day was the foreman of Culhane does not affect the situation. Day was not acting in the discharge of his duties as foreman or carrying forward the interests of his employer but with Culhane was engaged in the consummation of a purpose personal to each of them. Culhane was not obeying an order of Day in any proper view of the occurrence. To draw such an inference as that the occurrence must be warped out of its true significance.

The award should be reversed and the claim dismissed. All concurred. Award reversed and claim dismissed.

20. HORSEPLAY

According to court decisions, unintentional injury of an employee due to horseplay of a fellow employee, as well as unintentional injury due to curiosity or mistake of a fellow employee, is not compensatable. Horseplay of a fellow employee, unlike carelessness or negligence of a fellow employee, is not incidental to the employment. The court decisions have not distinguished between horseplay that injures an employee who is going industriously about his employer's work and horseplay which the injured employee has abandoned his employer's work to initiate or to participate in, as the Appellate Division has done relative to curiosity in the garage accidents. Horseplay and mistake precedents are cited as authority in the Culhane curiosity opinion.

Horseplay, of which the injured employee was innocent figured in the assault cases of Mariano and Verschleiser noticed above. Horseplay initiated by the injured employee resulted in his death in Gurian v. Moss Theatrical Enterprise, Bul., vol. 4, p. 25, Sept.

29, 1918. Earlier horseplay decisions are in Bulletin 81, pages 95-98, and Bulletin 87, page 165.

A boy employee having met death in an elevator accident, his employer charged, upon appeal, that he was skylarking with another boy at the time; the Appellate Division affirmed death benefits to the boy's relatives unanimously and without opinion: Slutsky v. Ludwig-Baumann & Co., Death Case No. 300522, Apr. 25, 1919; App. Div., Nov. 12, 1919.

21. SLIPPING ON EMPLOYER'S FLOORS OR STAIRS Instances of court affirmation of awards for accidents due to slipping on the employers' stairs or floors have been given in Bulletin 81, page 197, and Bulletin 87, page 158. The principle of these cases is noticed and applied in the opinion in the later stairway slipping case of Etherton v. Johnson Knitting Mills Co., text of which appears above, page 104.

22. SLIPPING ON PUBLIC HIGHWAY

If the work of an employee for his employer, or the employer's commands, involve the traversing of a public highway by the employee, an accident to him from ordinary street risks is compensatable. The New York courts have so decided, with rejection of certain English precedents, in Redner v. Faber and Son. The opinion of the Appellate Division in this leading case has been given in Bulletin 87, pages 156-158; also the opinion of the Court of Appeals in the similar stairway slipping case of Grieb v. Hammerle, pages 149-151. The opinion of the Court of Appeals in the Redner case is as follows:

REDNER V. FABER & SON, 223 N. Y. 379, May 14, 1918.

CUDDEBACK, J.: The industrial commission has awarded Georgiana Alice Redner compensation for damages sustained by the death of her husband, Charles W. Redner. The findings of the commission, which have been unanimously affirmed at the Appellate Division, show that on January 20, 1916, the deceased, Redner, was employed by H. C. Faber & Son Company, a corporation engaged in the business of manufacturing trunks on Meadow street, in the city of Utica. On the opposite side of Meadow street, diagonally across from the Faber plant, was another trunk factory operated by A. W. Winship Company. Both corporations had the same stockholders and were under the same management.