Claim of Davidson v. Pansy Waist Co. — 240 N.Y. 584

Majority

p. 584

In the Matter of the Claim of David Davidson, Respondent, against Pansy Waist Company et al., Appellants. State Industrial Board, Respondent.

(Argued February 25, 1925;

decided March 5, 1925.)

Headnote

Workmen’s Compensation Law ■ — • master and servant ■ — • salesman injured while making himself ready to work — when not entitled to compensation.

Making himself ready to perform his regular daily work cannot be said to be part of the employment of a salesman where it does not appear that he might not have prepared himself in exactly the same way if engaged in any other employment or vocation.

Davidson v. Pansy Waist Co., 211 App. Div. 823 , reversed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 2, 1924, affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. Claimant, a traveling salesman, in the course of his employment stopped at the city of Detroit and engaged a room and bath at a hotel. During the day he used the room to display his line of merchandise. On the day of the injury he arose in the morning, fixed his samples to get ready for the day while dressed in his pajamas and then went into the bathroom to take a bath. He slipped in the bathroom, grabbed the lever on the shower, fell and was scalded by boiling water from the shower.

James J. Scully, Everett F. Warrington, Herbert F. Hastings, Jr., and Robert H. Woody for appellants.

Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents.

While it may be that at the time the claimant sustained his injuries he was making himself ready to perform his regular daily work as a salesman, such preparation cannot be said to be part of his employ

p. 585

ment and it does not appear that he might not have prepared himself in exactly the same way if engaged in any other employment or vocation. The injury did not arise out of and in the course of his employment.

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

His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Orders reversed, etc.