Feldman v. A. B. C. Vending Corp.

Citation238 N.Y.S.2d 667,188 N.E.2d 905,12 N.Y.2d 223
Parties, 188 N.E.2d 905 Claim of Rose FELDMAN, Claimant-Respondent, v. A. B. C. VENDING CORP. et al., Appellants. Workmen's Compensation Board, Respondent.
Decision Date21 February 1963
CourtNew York Court of Appeals

Anne G. Kafka and Charles J. Jones, New York City, for appellants.

Nelson S. Anthony and David Marcus, New York City, for claimant-respondent.

No appearance for Workmen's Compensation Board, respondent.

FOSTER, Judge.

This is a death claim under the Workmen's Compensation Law, Consol.Laws, c. 67, § 1 et seq. The Referee disallowed the claim on the ground that the accident did not arise out of and in the course of the employment. A majority of a board panel (three members) affirmed the decision of the Referee on the ground that the decedent had abandoned his employment. One member dissented. The Appellate Division with one dissent reversed the board, on the ground there was no substantial evidence to sustain the determination of the board, and remitted the claim. On appeal to this court, appellants filed a stipulation for order absolute.

The record is scanty, but no dispute as to the facts appears. Decedent was working in a newsstand located on a subway platform at 8th Avenue and 42nd Street, New York City. Only two witnesses were sworn at the hearing, a fellow employee named Zucker and the decedent's widow. The latter knew nothing about the accident. Zucker testified that, while he and decedent were in the stand, a person came over to decedent and kept repeating that there was smoke and a fire there. Decedent went out of the stand to investigate and, while looking down at the tracks from a point about opposite the middle of the stand, he was struck by a subway train and instantly killed. Zucker also testified that the employer had an oral rule forbidding any attendant leaving the stand while on duty. This was to prevent larceny. He had been informed of the rule but he could not say whether the decedent had also been so instructed. No instructions had been given with regard to a fire at or near the premises, but a pail of water was kept in the stand at all times.

The employer produced no witnesses and on this meagre testimony the board found that decedent abandoned his employment to satisfy his own curiosity, and hence the accident did not arise out of and in the course of the employment. The board, of course, is final within the ambit of factual determination if it has some substantial evidence to sustain its determination. It may be that the board could find by inference that decedent had knowledge of the oral rule testified to by his fellow employee. But the violation of a rule does not necessarily lead to the conclusion that an employee abandoned his employment. There are authoritative cases the other way (Matter of Burns v. Merritt Engineering Co., 302 N.Y. 131, 96 N.E.2d 739, and cases therein cited). Indeed, it can be said with some assurance that there can be no absolutes where employers' work rules are concerned. Larson in his work on...

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4 cases
  • Durrah v. Washington Metropolitan Area Transit Authority
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 30 Abril 1985
    ...340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483 (1951); Green v. DeFuria, 19 N.J. 290, 116 A.2d 19 (1955); Feldman v. A.B.C. Vending Corp., 12 N.Y.2d 223, 188 N.E.2d 905, 238 N.Y.S.2d 667 (1963); Clynes v. Dobler Brewing Co., 285 A.D. 72, 136 N.Y.S.2d 525 (1954), aff'd, 308 N.Y. 1022, 127 N.E.2d 8......
  • People v. Roman
    • United States
    • New York Court of Appeals Court of Appeals
    • 21 Febrero 1963
  • Patterson v. State Acc. Ins. Fund Corp.
    • United States
    • Oregon Court of Appeals
    • 28 Septiembre 1983
    ...work-related to be compensable. Cf. Mtr. of Feldman v. A.B.C. Vending, 16 A.D.2d 189, 226 N.Y.S.2d 892 (1962); aff'd 12 N.Y.2d 223, 238 N.Y.S.2d 667, 188 N.E.2d 905 (1963) (deceased violated rule restricting him to employer's premises to investigate a nearby fire, compensation allowed); Gre......
  • Orbon v. Pine Lane Poultry
    • United States
    • New York Supreme Court — Appellate Division
    • 24 Julio 1980
    ...would have countenanced a departure from the rules so that aid could be given to a coemployee (Matter of Feldman v. A. B. C. Vending Corp., 12 N.Y.2d 223, 238 N.Y.S.2d 667, 188 N.E.2d 905). Claimant's actions could also be seen as intended to benefit the employer in that claimant was attemp......

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