Salvio v. Menihan Co.

Decision Date07 January 1919
Citation121 N.E. 766,225 N.Y. 123
PartiesDI SALVIO v. MENIHAN CO. et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings under the Workmen's Compensation Act by Angelo Di Salvio to recover compensation for the loss of fingers, opposed by the Menihan Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. From an order of the Appellate Division (170 N. Y. Supp. 1076) unanimously affirming an award of the State Industrial Commission, the employer and the insurance carrier appeal. Reversed.

Chase and Crane, JJ., dissenting.

Jeremiah F. Connor, of New York City, for appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.


We are unable to see how the award in this case can be sustained. As found by the Industrial Commission, the claimant was in the employ of defendant Menihan Company, which was engaged in the manufacture of shoes, and his duties consisted in marking soles with a rubber hand stamp. At the time of the accident he ‘had crossed the room in which he was working to talk to a fellow employé who had been drafted and who would be required to leave work on account of the draft in a little while. Di Salvio wished to say good-by to the drafted man before he went to the front, and, while leaning on the bench connected with the splitting machine which was being operated by said employé, the right arm * * * was caught in an unguarded cogwheel, and he sustained the injuries * * * (for which he award has been made). At the time that * * * Di Salvio walked across the room to greet his fellow employé, he had finished the work that had been assigned to him and was awaiting the arrival of more work.’

[1] In our opinion the accident did not in any degree arise out of or in the course of claimant's employment.

The courts have been liberal, as they should be, in so interpreting workmen's compensation statutes as to extend in many cases the relationship of employé to acts which seemed to be outside of the strict and ordinary lines of duty, as a basis for compensation. In accordancewith this policy, it has been held that the accident ‘arose out of and in the course of employment’ where an injury happened to an employé eating his dinner upon his employer's premises in accordance with express permission of the latter or usual custom (Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368, L. R. A. 1916D, 86); or to a workman on a telegraph line who had taken refuge during a storm under a freight car and had gone to sleep (Moore v. Lehigh Valley R. R. Co., 217 N. Y. 627, 111 N. E. 1092); or to an employé injured while returning from a cabin on the premises of a railroad company to which employés were permitted to go to eat their meals (Earnshaw v. Lancashire, etc., Ry. Co., 5 B. W. C. C. 28); or to an employé injured by a falling wall while he was taking dinner on his employer's premises (Blovelt v. Sawyer, 6 B. W. C. C. 16); or to a lighterman, who, while waiting for the tide to ebb, went from his barge to a small boat a short distance therefrom to rest (May v. Isom, 7 B. W. C. C. 148); or to an employé who in accordance with a general practice left the composing room where be worked to go upon the roof and get fresh air on a hot night (Matter of Von Ette, 223 Mass. 56, 111 N. E. 696, L. R. A. 1916D, 641); or to an employé engaged in dumping cars who on a cold night during an interval of leisure for the purpose of protection laid down in a position where he was subsequently injured by a moving car (N. W. Iron Co. v. Industrial Commission, 160 Wis. 633, 152 N. W. 416); or even to an employé who was injured while getting down from a moving wagon where he properly belonged to pick up his pipe (McLauchlan v. Anderson, 4 B. W. C. C. 376); or to an employé who was injured in attempting to stop the runaway horse of his employer although his regular work was entirely unconnected with horses (Rees v. Thomas, 1 B. W. C. C. 9); or to an employé who as the result of reproof administered in his line of duty to a fellow workman was struck by the latter in the eye (Matter of Heitz v. Ruppert, 218 N. Y. 148, 112 N. E. 750, L. R. A. 1917A, 344).

And this court perhaps went farther than any of these cases in extending the benefits of a compensation act when it held, as it did, in Matter of Waters v. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347, that an employé was acting within the scope of his employment so as to be entitled to the benefits of the act when he left his strict line of employment in the attempt to rescue another workman, technically in the employ of an independent contractor, from a danger which threatened his life. We thus held on the broad principle that as between the employé and the employer ‘it must have been within the reasonable anticipation of his employer that his employés would do just as Waters did if the occasion arose, for it is quite inconceivable that any employer should expect or direct his employés to stand still while the life of a fellow workman working a few feet away was imperiled by such an accident as occurred here, and it seems to us that the accident arose out of his employment.’

In each of these cases an award was sustained because the court was able fairly to say that between the work for which the employé was engaged and the disputed act which...

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16 cases
  • Cassell v. United States Fidelity & Guaranty Co.
    • United States
    • Texas Supreme Court
    • 7 Abril 1926
    ...Callan Brothers 224 N. Y. 714, 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. This case is rather within the principle of Matter of Verschleiser v. Stern & Son 229 N. Y. 192, the claimant, while enga......
  • Sichterman v. Kent Storage Co.
    • United States
    • Michigan Supreme Court
    • 8 Febrero 1922
    ...New York court had gone further in the Waters Case than other courts had gone was recognized by that court in Matter of Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766, where, after reviewing cases from other jurisdictions, it said, referring to the Waters Case: ‘And this court perha......
  • Schweiss v. Indus. Comm'n
    • United States
    • Illinois Supreme Court
    • 9 Abril 1920
    ...might have a bearing on the question whether they were actually in the course of employment. See In re Stacy, supra; Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766; Bylow v. St. Regis Paper Co., supra; Nelson Construction Co. v. Industrial Com., supra; Bradbury on Workmen's Compensa......
  • Clark v. Voorhees
    • United States
    • New York Court of Appeals Court of Appeals
    • 19 Abril 1921 another part of the building in which he was employed, to speak to an employee who was about to leave the place (Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766). The conclusion thus reached renders it unnecessary to pass upon the other questions raised by the appellants. The orde......
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