Leonbruno v. Mills

Decision Date19 October 1920
Citation229 N.Y. 470,128 N.E. 711
CourtNew York Court of Appeals Court of Appeals


Proceedings by Salvatore Leonbruno under the Workmen's Compensation Law to obtain compensation for personal injuries, opposed by the Champlain Silk Mills, the employer, and the American Mutual Life Insurance Company, insurer. There was an award of compensation, which was affirmed by the Third Department of the Appellate Division of the Supreme Court (192 App. Div. 858,183 N. Y. Supp. 222), and the employer and insurer appeal.


Appeal from Supreme Court, Appellate Division, Third department.

Jeremiah F. Connor, of Oneida, for appellants.

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


The claimant while engaged in the performance of his duties in the employer's factory was struck by an apple which one of his fellow servants, a boy, was throwing in sport at another, and as a consequence lost the better part of the sight of one eye. He did not participate in the horseplay, and had no knowledge of it till injured. The question is whether the accident was one ‘arising out of and in the course of employment,’ within the meaning of the statute (Workmen's Compensation Law, § 3, subd. 7; Consol. Laws, c. 67).

That it arose ‘in the course of employment’ is unquestioned. That it arose ‘out of’ employment, we now hold. The claimant's presence in a factory in association with other workmen involved exposure to the risk of injury from the careless acts of those about him. He was brought by the conditions of his work ‘within the zone of special danger.’ Thom v. Sinclair, 1917 A. C. 127, 142. Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service. We think with Kalisch, J., in Hulley v. Moosbrugger, 87 N. J. Law, 103, 93 Atl. 79, that it was ‘but natural to expect them to deport themselves as young men and boys, replete with the activities of life and health. For workmen of that age or even of maturer years to indulge in a moment's diversion from work to joke with or play a prank upon a fellow workman, is a matter of common knowledge to every one who employs labor.’ 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; Matter of Redner v. Faber & Son, 223 N. Y. 379, 119 N. E. 842.

We think the precedents in this state, whatever variance of view there may be in other jurisdictions, sustain our present ruling. This case is not within the principle of Matter of De Filippis v. Falkenberg, 219 N. Y. 581, 114 N. E. 1064, and Matter of Stillwagon v. Callan Brothers, 224 N. Y. 714, 121 N. E. 893, where the claimant, joining in the horseplay, had stepped aside from the employment. Cf. Matter of Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766. This case is rather within the principle of Matter of Verschleiser v. Stern & Son, 229 N. Y. 192, 128 N. E. 126, where the claimant, while engaged in his work, was assaulted by fellow workmen, who wished to tease and harass him. Cf. Markell v. Green Felt Shoe Co., 221 N. Y. 493, 116 N. E. 1060;Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344.We do not overlook the cases in other jurisdictions. Hulley v. Moosbrugger, supra, was reversed by the New Jersey Court of Errors and Appeals in 88 L. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203. It is in accord, however, with a decision of the Supreme Court of Illinois. Pekin Cooperage Co. v. Industrial Board, 277 Ill. 53, 115 N. E. 128. English cases hostile to the award (Armitage v. Lancashire & Yorkshire Ry. Co., 1902, 2 K. B. 178; Fitzgerald v. Clarke & Son, ...

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132 cases
  • Crilly v. Ballou
    • United States
    • Michigan Supreme Court
    • July 15, 1958
    ...of the earlier doctrines persisted. It remained for Mr. Justice Cardozo, in his famous opinion in Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522 (involving the playful throwing of apples) to break completely with the common-law concepts theretofore held control......
  • Mutual Implement & Hardware Ins. Co. v. Pittman, 38192
    • United States
    • Mississippi Supreme Court
    • June 9, 1952
    ...605, 29 Yale Law Journal, 672. The claimant is entitled to the benefit of the act.' Another New York case, Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522, involved an award of compensation under the 'horseplay' doctrine, but the opinion, written by the late Jus......
  • Block v. Fruehauf Trailer Division Fruehauf Corp.
    • United States
    • Indiana Appellate Court
    • December 4, 1969
    ...pursuing designs of his own * * * would not be entitled to compensation.' Or as Judge Cardozo expresses it in Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711 (1920): 'This case is not within the principle of * * * (citing cases) where the claimant, joining in the horseplay, ha......
  • Hall v. EI Du Pont De Nemours & Co., Inc.
    • United States
    • U.S. District Court — Eastern District of New York
    • May 18, 1972
    ...The test of liability is the relation of the service to the injury, of the employment to the risk. Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 473, 128 N.E. 711, 712 (1920). A similar principle of enterprise liability is embedded in the doctrine of respondeat superior—an employer's vic......
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