Lampert v. Siemons

• Decision Date: 23 March 1923
• Citation: 139 N.E. 278,235 N.Y. 311
• Parties: LAMPERT v. SIEMONS et al.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 311

139 N.E. 278

LAMPERT

v.SIEMONS et al.

Court of Appeals of New York.

March 23, 1923.

Proceeding by Sigmund Lampert under the Workmen's Compensation Law, for compensation for injuries, opposed by Charles Siemons, employer, and the Allied Mutual Liability Insurance Company, insurance carrier. Award of State Industrial Board for claimant affirmed by the Appellate Division of the Supreme Court (203 App. Div. 264,197 N. Y. Supp. 25), and the employer and insurance carrier appeal.

Order of Appellate Division reversed, and award of State Industrial Board set aside, and claim dismissed.

Appeal from Supreme Court, Appellate Division, Third Department.

John Preston Phillips and Arthur Butler Graham, both of New York City, for appellants.

Carl Sherman, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

CRANE, J.

Sigmund Lampert, the claimant, lived at 2 Allen street in the city of New York and worked for Charles F. Siemons, Inc., at 134 West Thirty-Ninth street. He was in charge of the operating and finishing room. During the month of February, 1921, all the employees of this concern, with the exception of the heads of the departments, were out on a strike. Lampert continued at work, realizing, however, that it was dangerous for him to do so. He sought protection from his employer in going to and from his work. Mr. Siemons, the presidentof the company, ordered or requested the general manager, Herman D. Gottlieb, to accompany Lampert from the factory to his home at night and to call for him in the morning and come with him to his place of work. This Gottlieb did until the day of February 28, when he failed to come because of detention at home. Lampert started out from 2 Allen street, where he lived, on this morning without Gottlieb and was met near the stairs to the elevated railroad at Canal and Allen streets by one of the strikers who assaulted him, causing permanent injury to his eye.

The claimant has been awarded compensation, as the State Industrial Board and the Appellate Division were of the opinion that these injuries arose out of and in the course of Lampert's employment. That they arose out of his employment is conceded; whether they were received in the course of his employment is the point in question.

Had there been no strike, Lampert's employment would have ended when he left the factory at 134 West Thirty-Ninth street. His work was indoor work as foreman of the operating room. There was no work for Lampert to do for his employer after he left the factory at night and before he reached there in the morning. Therefore, all the authorities agree that, while going to and from his work, Lampert, if injured, would not come under the Workmen's Compensation Law (Consol. Laws, c. 67), as such injury would not have arisen in the course of his employment. Tallon v. Interborough Rapid Transit Co., 232 N. Y. 410, 134 N. E. 327, 21 A. L. R. 1218;Matter of Schultz v. Champion Welding & Manufacturing Co., 230 N. Y. 309, 130 N. E. 304;Matter of Kowalek v. New York Consol. R. R. Co., 229 N. Y. 489, 128 N. E. 888;Matter of McInerney v. Buffalo & S. R. Corp., 225 N. Y. 130, 121 N. E. 806; Walters v. Staveley Coal & Iron Co., Ltd., 4 B. W. C. C. 303, House of Lords, 1911.

There is a line of cases which hold that an employee injured while on the streets or in a conveyance may recover compensation. These are cases where the nature of the claimant's work took him to and in the place where he was injured, and where at the time he was actually engaged in doing that for which he was paid (Matter of Redner v. H. C. Faber & Son, 223 N. Y. 379, 119 N. E. 842); also compensation has been allowed where the employee was injured while traveling to and from his work in a conveyance furnished by the employer under the contract of employment and the necessities of the situation. (Matter of Littler v. George A. Fuller Co., 223 N. Y. 369, 119 N. E. 554). In this case, however, Lampert was not doing...