Claim of Gifford v. T. G. Patterson, Inc.

Chase, J. Charles W. Gifford, a night watchman, employed by T. G. Patterson, Inc., a corporation engaged in the business of manufacturing packing boxes, received injuries July 9, 1916, which resulted in his death. A claim was filed by his widow for compensation under the Workmen’s Compensation Law. The state industrial commission (two of the commissioners dissenting) made her an award. The determination of the commission has been affirmed by the Appellate Division of the Supreme Court. The material facts as found by the commission are as follows: “ * * *. The duties of Charles W. Gifford were to watch the premises during the night time and to go around the building for that purpose and to regularly punch a time clock. In the front of the building there was a chute running from the second floor to the pavement, down which it was customary to send the goods to be put on the wagons. “2. On said date, at about 1.45 A. m. Charles W. Gifford was found by a policeman at the bottom of the chute lying in a pool of blood. Prior to being so found Charles W. Gifford had obtained a chair and was sitting *7 in a doorway on the second floor at the top of the chute, it being a very warm night. He dozed off and lost his balance and fell out of the window down the chute, carrying with him the chair on which he had been sitting. The fall caused a fracture of the right femur and elbow and a gash in the head and an injury to the right hip. He was taken immediately to the hospital and died there on July 17th of shock occasioned by. the said injury. The dozing in his chair by Charles W. Gifford just prior to the said fall was not an unreasonable act under the circumstances and did not constitute an abandonment of his employment, but amounted, at the most, to negligence only. “ 3. * * * “ 4. The injuries which resulted in the death of Charles W. Gifford were accidental injuries and arose out of and in the course of his employment.” The statement in the last paragraph of the second finding and in the fourth finding are conclusions based upon specific findings of fact. Such conclusions do not purport to be and are not in fact based upon presumptions authorized by section 21 of the Workmen’s Compensation Law. We think that as matter of law the conclusions of the commission are not justified by the facts found. (Matter of Glatzl v. Stumpp, 220 N. Y. 71, 75.) The duties of Gifford were to “ watch the premises * * * and to go around the building for that purpose.” The findings show that he abandoned his duty and after first'obtaining a chair sat therein on. the second floor of the building at an open doorway and sitting therein “ dozed off ” and fell down a chute and received the injuries from which he died. He was employed to watch the premises. Instead of doing so he prepared for himself a comfortable position and slept. If, in connection with his employment, he was authorized or permitted to procure a chair *8 and spend a portion of his time therein “ dozing off ” in the doorway, it was not shown before the commission. His injury was not received as a natural incident of his work. It was not a risk connected with his employment or arising out of and in the course of his employment. The acts of Gifford as found by the commission, instead of being in the course of his employment, were directly contrary to the object and purpose for which he was employed. When an employee is injured through some act of his own, not an incident to his employment, and not authorized or induced by his employer in connection with his employment, the injury does not arise out of and in the course of his employment within the meaning of subdivision 7, section 3 of the Workmen’s Compensation Law. (See Matter of Heitz v. Rupperl, 218 N. Y. 148; Matter of Saenger v. Locke, 220 N. Y. 556; Spooner v. Detroit Saturday Night Co., 153 N. W. Repr. 657.) The order should be reversed and the determination of the state industrial commission annulled, with costs against the state industrial commission in this court and in the Appellate Division. His cock, Ch. J,, Cuddeback, McLaughlin, Crane and Andrews, JJ., concur; Cardozo, J., not voting. Older reversed, etc.