Matter of Giliotti v. Hoffman Catering Co.

Pound, J. Michele Giliotti was employed as chef by the Hoffman Catering Co., Inc., which operated Hoffman’s Inn at Valley Stream, N. Y., at a weekly wage of $50 together with room and board. He was engaged, not as workmen often are, from day to day but for a definite term. His status was practically that of a domestic servant in whose case it is an implied part of the contract of the employment that the employee shall sleep on the premises. He slept in a special section of the hotel provided for the help in a room that was solely his. In the early morning of Monday, October 26, 1925, a fire occurred in the hotel from causes unknown. Giliotti had retired to his room at the end of the day’s work and while there was suffocated to death by the fire. Monday was his day off and he was at liberty to leave when his work on Sunday night was finished, but he might and often did remain in his room for the night. The accident happened during the period of his employment but that is not enough. The question is whether his death was due to an injury arising out of and during the course of his employment. (Matter of Heitz v. Ruppert, 218 N. Y. 148.) Much stress is laid on the fact that the condition of his clothing and of the bed indicated that he was dressing himself to leave the premises when the fire occurred and that under the rule laid down by this court in Matter of Lynch v. City of New York (242 N. Y. 115) his employment continued as long as he was preparing to leave the premises of his employer. The case does not rest on so narrow a foundation. The relation of employer and employee did not cease because the employee was off duty. There was a continuity of employment. Sleeping on the premises in a room provided by the employer in the servants’ quarters was an incident of the employment, mutually beneficial to *282 employer and employee, not a temporary suspension of it. The parties contemplated that Giliotti when not engaged in work should occupy his room because he was an employee. He was reasonably exercising a right which his contract of service authorized him to exercise. He did not become a boarder when he ceased to cook. Lord Dunedin in Davidson & Co. v. M’Robb ([1918] A. C. 304, 321) said: “It [in the course of employment] connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work — e. g., in the workman’s case the taking of meals during the hours of labor; in the servant’s, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master’s roof.” And Lord Atkinson in the same case said (p. 327): “ In the case of a sailor who lives on board his ship, or an indoor servant who fives in his master’s house, these words would of course cover and include things necessarily incidental to his service there— such as taking his meals, sleeping, resting, etc.” The accident which resulted in Gifiotti’s death, therefore; arose during the course of his employment. The case is plainly distinguishable from Philbin v. Hayes (11 B. W. C. C. 85). There the employee was a common laborer, paid by the hour. He rented sleeping accommodations in a hut provided by his employer. There was no continuity in the course of his employment. When his day’s work ended it was a matter of indifference to his employer where he lodged. It was held that he was not like a domestic servant, living in the hut upon any terms of contract for his employer’s benefit that he should be there. The more serious question is: Did the death arise out of his employment? He was injured not because he was engaged in some personal act, some private service to *283 himself, like taking a bath (Davidson v. Pansy Waist Co., 240 N. Y. 584), or doing his washing (Matter of Daly v. Bates & Roberts, 224 N. Y. 126), or changing his clothes, but because a fire broke out in the place where he was employed. Neither was the danger one common to all, shared by anybody and everybody in the vicinity of the fire, as in the case of the exploding shell and thfalling bomb. (Matter of McCarter v. La Rock, 240 N. Y. 282.) The danger from fire to which Giliotti was exposed attached specially to the premises where he was employed; it was peculiar to the situation and a risk to which his employment exposed him, in no way differing from the risk of injury from the collapse of the building. (Matter of Filitti v. Lerode Homes Corporation, 244 N. Y. 291.) If he had been on duty, no doubt could arise on this point. An accident due to fire springs from a risk peculiar to the particular locality of the work. If the employee were not in the burning building he would not be within the zone of danger. It follows that his employment called him into a place of potential danger from that source. Other jurisdictions have held that when an accident happens under such circumstances, it arises out of and during the course of the employment. (Holt Lumber Co. v. Industrial Comm., 168 Wis. 381.) It is of little consequence whether Giliotti had his trousers on or off or was preparing for bed or to leave the premises. He was where his employment took him at the time, and was exposed to a risk arising out of such employment. The order of the Appellate Division should be reversed and the award of the State Industrial Board reinstated, with costs in this court and the Appellate Division.