Martin v. Plaut

• Decision Date: 30 December 1944
• Citation: 59 N.E.2d 429,293 N.Y. 617
• Parties: MARTIN v. PLAUT et al.
• Court: New York Court of Appeals Court of Appeals

293 N.Y. 617

59 N.E.2d 429

MARTIN

v.PLAUT et al.

Court of Appeals of New York.

Dec. 30, 1944.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Workmen's Compensation Law by Mary E. Martin, claimant, opposed by Edward Plaut, employer, and the Indemnity Insurance Company of North America, insurer. From an order of the Appellate Division, 267 App.Div. 929, 47 N.Y.S.2d 11, unanimously affirming an award of compensation by the State Industrial Board, the employer and insurer appeal by permission of the Court of Appeals.

Affirmed. James I. McGuire and George A. Garvey, both of New York City for appellants.

Nathaniel L. Goldstein, Atty. Gen. (Roy Wiedersum, of New York City, of counsel), for respondent.

THACHER, Judge.

Claimant, employed as a cook, was injured when she fell as she turned suddenly to pick up some of her clothes while dressing one morning in a bedroom furnished in her employer's home for her use. What caused her to fall she could not say unless it was the quickness of her movement. She had just left her bed and was dressing to go out and do her work. She was not conscious of having tripped over anything. Under the terms of her employment she slept and had her breakfast in the home but went out for lunch and dinner.

Upon these facts, which are not in dispute, we must determine whether her injuries were compensable under the Workmen's Compensation Law and decision turns upon whether they arose ‘out of and in the course of’ her employment as a domestic servant living in her master's home. The facts being undisputed, this is a question of law. Dennis v. A. J. White & Co. (1917) A.C. 479 (House of Lords).

It being part of her employment to sleep and to live in the household, it was in the natural course of her employment to arise and dress in order to commence her daily work. We have held that a cook employed in a hotel at a weekly wage with room and board was entitled to compensation for injuries suffered in a fall on the way from her bedroom to the bathroom early in the morning before she had commenced her work, Underhill v. Keener, 258 N.Y. 543, 180 N.E. 325; but a laundress employed upon similar terms in a hotel, who also enjoyed the privilege of using her employer's laundry after hours to do her own laundry work, was denied compensation for accidental injuries suffered while doing such work after hours, Daly v. Bates & Roberts, 224 N.Y. 126, 120 N.E. 118; and in Hall v. City of New York, 282 N.Y. 708, 26 N.E.2d 822, a nurse employed in a city-owned hospital, who was injured by falling in a tub in which she was bathing, was denied compensation. In the Daly case, supra, we held that the claimant's employment did not require her presence in the laundry at the time she was injured and that the activities out of which her injuries arose were neither part of nor incidental to her employment. Examination of the record in that case discloses that the laundress received her injuries while she was employed by Bates & Roberts, properietors of the Murray Hill Hotel, who were engaged in the operation of a power laundry in connection with such hotel, where she was employed to work during fixed hours of each day. It was customary for the employees in the laundry to do their own washing there in the evening and it was while she was engaged in doing her personal laundry after hours that the claimant sustained her injuries. The employment in that case obviously had little in common with domestic service in a private household.

In the Hall case, supra, it appeared that the nurse was ‘not in service’ on the day when she fell in the tub while taking a bath. For these reasons it could not be said in the Daly case or in the Hall case that the injuries arose out of or in the course of the employment. That was not the situation in Giliotti v. Hoffman Catering Co., 246 N.Y. 279, 158 N.E. 621, 56 A.L.R. 500, nor in Underhill v. Keener, supra, which was decided upon the authority of the Guilotti case. In the Giliotti case the decedent was employed as a chef at a weekly wage with room and board. We said that his status was practically that of a domestic servant and that his sleeping on the premises in a room provided by his employer was an incident of his employment mutually beneficial to employer and employee and not a temporary suspension of it. A fire occurred on the premises and the chef was suffocated in his sleep. His accidental death was held to be compensable. It is true he was not injured because he was engaged in some purely personal act, like taking a bath or doing his washing or changing his clothes, as was the claimant in this case, and we are urged to deny compensation because the accident here happened while claimant was dressing in the privacy of her own room.

Nothing could have been more personal than the call of nature in the Underhill case, supra, and yet that case was decided on the authority of the Giliotti case, where compensation was awarded. The statements in the Giliotti opinion, to the effect that the claimant was not injured while taking a bath or doing his washing or changing his clothes, are not rulings that injuries occurring at such times are not compensable, although such rulings were made in Davidson v. Pansy Waist Co., 240 N.Y. 584, 148 N.E. 715, and Daly v. Bates & Roberts, supra.

No doubt the personal quality of the act causing injury may be important, and in many cases decisive, in determining that the injury did not arise out of and in the course of employment, for in almost every employment purely personal acts have no connection with the employment. This was the situation in the Davidson case, supra, involving the employment of a traveling salesman who was injured by falling in a hotel abthroom. But in domestic service, where the servant lives in and is a part of the household, there are many activities incidental to the employment of a purely personal and private character, such as eating and sleeping and living under the master's roof. Accidents in such employment are domestic. They happen anywhere in the house, not by reason of exposure to risks peculiarly inherent in...