Stimell v. Remington Typewriter Co. — 210 A.D. 311

Majority

p. 311

Before State Industrial Board, Respondent. Leo Stimell,. Respondent, v. The Remington Typewriter Company and Another, Appellants.

Third Department,

September 26, 1924.

Headnote

Workmen’s compensation — injury arising out of and in course of employment — roof of building in which claimant was employed was used for recreation — claimant fell from ladder on side of water tank on roof — claimant while standing on ladder for purpose of having his picture taken was outside employment.

The claimant who was injured when he fell from a ladder on the side of a water tank on the roof of the building in which he was employed, did not receive an injury arising out of and in the course of his emnloyment, since it appears that while the roof was used by the employees for recreation, the claimant was, at the time of the accident, standing on the ladder, not for any purpose of recreation, but to pose for a picture of himself which was being taken at his request.

Appeal by the defendants, The Remington Typewriter Company and another, from an award of the State Industrial Board, made on the 29th day of February, 1924, and also from a further award made on the 5th day of March, 1924.

Robert H. Woody [E. F. Warrington of counsel], for the appellants.

Carl Sherman, Attorney-General [E. C. Aiken, Deputy Attorney- ' General, of counsel], for the respondents.

The claimant was a clerk in the mail department of his employer’s business, which was the selling of typewriters. On the roof of the building there was a space which the employer furnished to its employees for recreation. During the lunch hour this claimant went upon this roof, where there was a ladder extending up the side of a water tank, for use by the employer to repair or inspect the tank. Either one of the rungs broke, or he slipped, and fell a distance of some twenty-eight feet, suffering the injuries of which he complained. He went upon the ladder, not for any purpose of recreation, but to pose for a picture of himself, the picture to be taken at his request. The one question presented is whether or not the claimant suffered accidental injuries arising out of and in the course of his employment. I think that the claimant stepped outside his employment while doing a voluntary act, which proximately led to the accident and which act had no relation to his master’s interests. (Frost v. Franklin Mfg. Co., 204 App. Div. 700 .) We do not think it can be said that “ between the work for which the employee was engaged and the disputed

p. 312

act which led to the accident there was either naturally or as the result of some act of the employer or of custom a real relationship which brought the accident within the range of employment.” (Matter of Di Salvio v. Menihan Co., 225 N. Y. 123 , 127.) The circumstances are not parallel to those in Martin v. Metropolitan Life Ins. Co. ( 197 App. Div. 382 ) or Etherton v. Johnstown Knitting Mills Co. (184 id. 820).

I recommend that the award be reversed and the claim dismissed.

All concur.

Award reversed and claim dismissed, with costs against the State Industrial Board.

Cases cited

Claim of Di Salvio v. Menihan Co. 225 N. Y. 123 N.Y. 1919-01-07 at 127 p. 312