Indus. Com'r v. McCarthy

• Decision Date: 23 July 1946
• Citation: 68 N.E.2d 434,295 N.Y. 443
• Parties: INDUSTRIAL COM'R et al. v. McCARTHY et al.
• Court: New York Court of Appeals Court of Appeals

295 N.Y. 443

68 N.E.2d 434

INDUSTRIAL COM'R et al.

v.McCARTHY et al.

Court of Appeals of New York.

July 23, 1946.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Act in the matter of the claims of the Industrial Commissioner and Department of Taxation and Finance, and the claim of Ovile Siguin, as the father of John Siguin, deceased, against Adrian McCarthy and another. A decision and awards of the State Industrial Board, now Workmen's Compensation Board, made under the Workmen's Compensation Law, Consol.Laws, c. 67, against the employer individually and its insurance carrier, the Merchants Mutual Casualty Company, were affirmed by the Appellate Division of the Supreme Court by order entered May 17, 1945, 269 App.Div. 793, 55 N.Y.S.2d 15, and the employer and insurance carrier appeal.

Modified and affirmed as modified. Arthur J. Murphy, of Albany, and Gerald A. Gleason, of Buffalo, for appellants.

Nathaniel L. Goldstein, Atty. Gen. (Roy Wiedersum, of Albany, Gilbert M. Landy, of White Plains, and Emmeline E. Ferris, of New York City, of counsel), for Workmen's Compensation Board, respondent.

FULD, Judge.

For seven months prior to December 24, 1942, John Siguin, seventeen years old, had been employed as a waiter in appellant-employer's restaurant in Massena, New York. On that day, he was accidentally killed while working in the restaurant.

The primary question posed is whether Siguin's injury and consequent death arose ‘out of and in the course of the employment’ within the meaning of the Workmen's Compensation Law, Consol.Laws, c. 67. The Industrial Board now the Workmen's Compensation Board held that it did, and the Appellate Division unanimously affirmed.

During the time of Siguin's employment, it had been more or less customary and usual and this was known to appellant-employer that whenever two employees passed, each would ‘make a pass' take a friendly tap or blow at the other.

Upon the day in question, December 24, 1942, Siguin came into the kitchen, conversed in amicable fashion with Demers another seventeen-year-old boy employed at the restaurant and then, on leaving, made pass at Demers. As Demers turned to avoid the blow, a knife which he held in his other hand accidentally struck Siguin in the left side, penetrated his heart and caused his death.

In the light of the record, it was but natural to expect appellant's employees to deport themselves as boys and young men full of life and health as they did. Indulgence in a moment's diversion a moment spent making a friendly pass at a fellow employee had long been part and parcel, an incident, of the employment. The risks thereby engendered were risks of the employment. There can no longer be any question in this State, at least that injuries resulting therefrom arise ‘out of * * * the employment’ within the meaning of the Workmen's Compensation Law. Levy v. World-Telegram Corp., 285 N.Y. 533, 32 N.E.2d 827;Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522;Verschleiser v. Joseph Stern & Son, 229 N.Y. 192, 128 N.E. 126;Markell v. Daniel Green Felt Shoe Co., 221 N.Y. 493, 116 N.E. 1060;Mason v. Nassau Riding Academy, 250 App.Div. 802, 294 N.Y.S. 172;Donovan v. Bush Terminal Co., 255 App.Div. 737, 6 N.Y.S.2d 860;Heitz v. Ruppert, 218 N.Y. 148, 112 N.E. 750, L.R.A.1917A, 344. We need do no more than repeat what Judge Cardozo said in the Leonbruno case, supra, 229 N.Y. at pages 472, 473, 128 N.E. at page 711, 13 A.L.R. 522: ‘The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment. Thom v. Sinclair, supra (1917) A.C. 127; Redner v. (H. C.) Faber & Son, 223 N.Y. 379, 119 N.E. 842.

‘* * * The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master's business. Many things that have no such tendency are done by workmen every day. * * * The test of liability is the relations of the service to the injury, of the employment to the risk.’

Nor can there be any doubt that the injury arose ‘in the course of the employment.’ The long-continuing custom and practice to which we have called attention strongly indicating as it does that there was no abandonment, serves to distinguish the present case from those wherein the instigator of a fight or the initiator of horseplay was held not entitled to compensation. Frost v. H. H. Franklin Manufacturing Co., 236 N.Y. 649, 142 N.E. 319, affirming 204 App.Div. 700, 198 N.Y.S. 521;Stillwagon v. Callan Bros., 224 N.Y. 714, 121 N.E. 893, affirming 183 App.Div. 141, 170 N.Y.S. 677;Griffin v. A. Roberson & Son, 176 App.Div. 6, 162 N.Y.S. 313. In each of those cases, there was a single isolated incident which originated solely and entirely in the injured employee's own act; there was not as here a continued series of related and similar incidents participated in by all the employees In view of that fact, Siguin can scarcely be said to have ‘instigated’ and ‘initiated’ the horseplay within the meaning of the above cases. Moreover, both the Stillwagon and Griffin cases involved fights actually commenced in anger and animosity so that as the Appellate Division explicitly stated in the former case (183 App.Div. at pages 144, 145, 170 N.Y.S. at page 678) the injuries complained of fell within the statutory exception, being ‘occasioned * * * by wilful intention of the injured employee to bring about the injury or death of himself or another.’ Workmen's Compensation Law, s 10.

Since Siguin's fatal injury arose ‘out of and in the course of’ his employment the determinations below upon this question were correct and the award against appellant-carrier should be affirmed.

The second question raised only by appellant-employer, since he alone is affected relates to the propriety of the award against him individually for the benefit of special funds under the Workmen's Compensation Law.

That award was made pursuant to section 14-a of the Workmen's Compensation Law, which provides, in part, that ‘compensation and death benefits * * * shall be double the amount otherwise payable if the injured employee at the time of the accident is a minor under eighteen years of age employed, permitted or suffered to work in violation of any provision of the labor law’ and that the employer alone is to be liable for such increased compensation or death benefits. Concededly, Siguin was under eighteen, and in violation of section 131 of the...