Scholtzhauer v. C.&L. Lunch Co.

• Decision Date: 28 February 1922
• Citation: 233 N.Y. 12,134 N.E. 701
• Parties: SCHOLTZHAUER et al. v. C. & L. LUNCH CO. et al.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 12

134 N.E. 701

SCHOLTZHAUER et al.

v.C. & L. LUNCH CO. et al.

Court of Appeals of New York.

Feb. 28, 1922.

Proceeding by Bertha Scholtzhauer and others under the Workmen's Compensation Law for conpensation for the death of Irma D. Scholtzhauer, opposed by the C. & L. Lunch Company, employer, and the Zurich General Accident & Liability Insurance Company, insurance carrier. Award for named claimant by the Industrial Board was affirmed by the Appellate Division (-- App. Div. --, 188 N. Y. Supp. 949), and the employer and insurance carrier appeal.

Order of Appellate Division and determination of the Industrial Board reversed and claim dismissed.

See, also, -- App. Div. --, 189 N. Y. Supp. 954.

Crane, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third department.

Charles B. Sullivan, of Albany, and Alfred W. Andrews, of New York City, for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondents.

McLAUGHLIN, J.

On the 28th of June, 1919, Irma D. Scholtzhauer, daughter of the claimant, was employed as a waitress by the C. & L. Lunch Company, at 2246 Broadway, New York City. There was employed at the same time, by the same company, a colored dishwasher by the name of Arthurs. About 6 o'clock in the afternoon of the day named Arthurs invited the daughter to go out with him that evening. She declined the invitation and stated to another employee that she would not go out with a negro. Her statement to this effect having been repeated to Arthurs, made him very angry. Shortly thereafter, when the daughter took some dishes to the place where Arthurs was working and pushed them through an opening in the partition between the restaurant and the kitchen, he drew a pistol and shot her, and immediately ran from the kitchen to the restaurant, again shot her, and she died shortly thereafter. Claims for compensation were filed by the mother and two sisters of the deceased, on the ground that they were dependents. The claims of the sisters were not allowed, but that of the mother was. An appeal was taken by the employer and insurance carrier to the Appellate Division, Third Department, where the determination of the Industrial Board was unanimously affirmed. Permission was thereafter given to appeal to this court.

To justify the State Industrial Board in making an award, the injury complained of must have arisen both out of and in the course of the employment. It must have been received while the employee was doing the work for which he was employed, and in addition thereto such injury must be a natural incident to 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. Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344. An award cannot be made where the accident results from the chances of life in general to which the injured person was exposed in common with all mankind rather than as an employee. Heitz v. Ruppert, supra, 218 N. Y. 152, 112 N. E. 750, L. R. A. 1917A, 344; Craske v. Wigan, [1909] L. R. 2 K. B. 635; Thom v. Sinclair, [1917] App. Cas. 137; Dennis v. White & Co., [1917] App. Cas. 479; Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N. W. 665, L. R. A. 1916A, 22, Ann. Cas. 1916A, 386.

The authorities cited by the respondent are not in...