Matter of Johnson v. Smith

O’Brien, J. The claimant J. M. Johnson was employed by H. M. Smith of Watkins Glen, who conducts a coal yard and sells agricultural implements, farm produce and fertilizer. His duties were multifarious and included, according to his expression, ,! -anything from clerical work down to a coal heaver.” His wages were twenty-five dollars a week and a commission on the sale of coal. While working at Watkins Glen, he was allowed an hour off at noon and he paid for his lunch. When out of town on business for his employer, he used his discretion relating to the time and place for eating, but all his expenses on such journeys were borne by the employer. On one of these trips he went to Montour Falls to sell fertilizer and lunched at Beardsley’s restaurant. The cook was a typhoid carrier and from the food which he there consumed he contracted the disease. The question whether an accidental injury occurred is not argued by appellant and accordingly we do not volunteer an answer; *13 The sole issue presented is whether claimant’s disability arose out of and in the course of his employment. Claimant was entitled to an hour for lunch. While at Watkins Glen the time usually began at noon and he was free to eat at home or anywhere he pleased. During that time he quit work and his course of employment temporarily ceased. Any disability which might have been inflicted would not have arisen out of his employment and would not have been compensable. (Matter of Clark v. Voorhees, 231 N. Y. 14, 17; Matter of Carroll v. Verway Printing Co., 254 N. Y. 598; Matter of Cunningham v. Hunterspoint Lumber & Supply Co., 256 N. Y. 574.) The rule may be different in cases where the employee is always on duty and subject to call (Matter of Crippen v. Press Co., 254 N. Y. 535), or in instances where the employer requests or customarily permits him to eat upon the premises or in a place provided for him. (See Matter of McInerney v. Buffalo & Susquehanna R. R. Corp., 225 N. Y. 130, 133.) An equally clear distinction is made when the employee is engaged not only in the personal act of eating but has entered a restaurant for the purpose of promoting the interest of his employer by interviewing prospective customers. (Matter of Tannenbaum v. Perfect Tailoring Co., 243 N. Y. 577.) The fact that when at Montour Falls claimant could select his time for lunch and that he would be reimbursed for his expense cannot establish any substantial difference in principle from his status at Watkins Glen. On neither occasion while eating was he engaged in his employer’s business. His act at one place was as exclusively personal as at the other. For the time being he was resolved into an individual exempt from duties as an employee. He was a free man and could eat when and where he chose. During the time that he selected, his employer exerted no authority over him and derived no benefit from his acts. The order of the Appellate Division and the award of *14 the State Industrial Board should be reversed and the claim dismissed, with costs in this court and in the Appellate Division against the State Industrial Board.