Finnegan v. Same
| Decision Date | 23 November 1937 |
| Parties | FINNEGAN v. BIEHN et al. FINNEGAN et al. v. SAME. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Proceedings under the Workmen's Compensation Law (Consol.Laws, c. 67) in the matter of the claims of Annie Finnegan and of Annie Finnegan and Lillian Mary Chambers, for the deaths of Joseph Burns and Catherine Burns, against Annie E. Biehn and another. From an order of the Appellate Division of the Supreme Court in the Third judicial District, entered March 17, 1937, 250 App.Div. 791, 293 N.Y.S. 806, reversing awards of the State Industrial Board and directing dismissal of the claim, the State Industrial Board appeals.
Order of the Appellate Division reversed, and the awards of the Industrial Board reinstated. Appeal from Supreme Court, Appellate Division, Third department.
John J. Bennett, Jr., Atty. Gen. (Roy Wiedersum, Asst. Atty. Gen., of counsel), for appellant.
F. A. W. Ireland, of New York City, for respondents.
Joseph and Catherine Burns, husband and wife, were employed as janitors of a tenement house, which contained no central heating system. They received as compensation a small monthly wage and the use of an apartment in the building. Both died as the result of burns suffered in a fire which occurred on January 1, 1935, when an oil heater, which they were using to keep their apartment warm, was accidentally overturned. At the time of the fire, all the tenants had vacated the building, and the decedents were remaining on the premises in order to watch the building and to perform general duties of supervision until the building was closed and padlocked in preparation for demolition.
The Industrial Board granted awards, but the Appellate Division, two justices dissenting, has reversed and dismissed the claims on the ground that there was no evidence to support the finding that the accident arose out of the employment.
Death or injuries resulting from fire have been held to arise out of and in the course of the employment when the employee is on 24-hour duty, even though the employee was asleep or not actively engaged in his work at the time of the fire. Matter of Giliotti v. Hoffman Catering Co., 246 N.Y. 279, 158 N.E. 621, 56 A.L.R. 500. The employee is required to remain on the premises, and injuries connected with the place he is bound to occupy are compensable. Not all injuries which occur on the premises, however, arise out of the employment. Injuries due to the acts of the employee disassociated from his employment are not compensable. ‘The difficulty lies in drawing the line between that which is a risk growing out of the employment and that which is solely personal to the employee.’ Matter of Pisko v. Mintz, 262 N.Y. 176, 179, ...
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