Leonbruno v. Mills

• Decision Date: 19 October 1920
• Citation: 229 N.Y. 470,128 N.E. 711
• Parties: LEONBRUNO v. CHAMPLAIN SILK MILLS et al.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 470

128 N.E. 711

LEONBRUNO

v.CHAMPLAIN SILK MILLS et al.

Court of Appeals of New York.

Oct. 19, 1920.

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.

Affirmed.

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.

CARDOZO, J.

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, ...