Claim of Andrews v. Emporium Forestry Co.

Davis, J. On November 17, 1926, Leonard Andrews was in the general employment of the Emporium Forestry Company at Conifer, N. Y., as assistant planing mill foreman. His duties were to see that the machines were running properly, inspect the finished [328] product, fix up the knives as they became dull, to assist in repairing machinery, and in directing the workmen. Every night after supper he returned to the mill to assist the night foreman in getting started. On the night in question, Andrews had returned to the mill. It does not clearly appear whether he had finished his usual duties or whether they had not yet been begun. At any rate, as he was standing at a store, he noticed that smoke and sparks were coming out of the chimney of his home. Evidently thinking that there was a fire, he ran to his home, a distance of about one-eighth of a mile up grade. He was a large, heavy man fifty-two years of age. He arrived there exhausted, and it may be assumed that his death on December 2, 1926, was the result of pulmonary embolism, contributed to by dilatation of the heart, caused by the unusual strain and excitement in running to his home. There is no practical dispute in the facts. We disregard the admissions made in the “ Employer’s First Report ” for the reason that the report was made out at the request of the employee by a man to whom no authority was given. The only question requiring discussion is, Did the death of the employee result from an accident which arose out of and in the course of his employment? Conifer is a small unincorporated village, consisting of a saw mill, planing mill, machine shop, lumber yard, hotel, and dwelling houses. There is no municipal government. All of the buildings (including the residences) except the school building are owned by the employer. Apparently the residences are rented to employees for their exclusive use. There is a water system furnishing a supply of water for domestic purposes and for fire protection; and a system of fire hydrants is maintained, together with necessary appliances for fighting fire, all owned by the employer. There is also a fire alarm system. Certain of the employees have been organized into a fire company in charge of officers by whom they were given fire drills from time' to time, and directed in fighting fires. Their duties are to turn out whenever an alarm of fire is given. These men are given extra pay for their services whenever called upon to perform such duties. Andrews did not belong to this fire company. In common with other officers and employees, he did turn out at times when there was a fire and sometimes rendered assistance. For this he received no special pay, nor did he lose pay for the time he was absent from his duties. There was nothing in his contract óf employment which required him to assist at fires; and so far as it appears, the employer did not direct his work on such occasions. At the time he made this unusual exertion that led to his death there had been no alarm, and he was not acting in the line of his [329] regular or special employment regarding his duties at the mill; nor does it appear that he was in any way furthering the interests of his employer. His act was based upon the mistaken impression that the house in which he resided, owned by his employer, was in grave danger. When he reached home it was apparent there had been no great risk. His wife testified that the chimney was hot and that she threw some salt in the stove and that stopped the blazing of the chimney. Andrews gave no alarm and it is quite evident that his purpose in hastening to his home was to look after the safety of his wife and to protect his own property. The determination as to whether the act of an employee at any given time falls within the scope of his employment or the fine of his duty, must depend upon the surrounding facts and circumstances of the particular case under consideration. The law recognizes that an employee is an independent and responsible being, with capacity which the employer cannot efface or control, to engage in projects of his own and exercise freedom about his own affairs which takes him out of the scope of his employment and absolves the employer from responsibility for his acts. (18 R. C. L. § 254, p. 795.) If he engages in performing duties in behalf of his employer, even if it is outside the usual hours of labor, he is furthering the interests of his employer and the latter not only is responsible for his acts but becomes liable for compensation under the statute, if an accident befalls the employee during the course of this extra employment. (Matter of Grieb v. Hammerle, 222 N. Y. 382; and see note, 7 A. L. R. 1078.) However, if the employee has departed from his ordinary line of duty and engages in an enterprise which is only remotely if at all related to his employment, and while thus engaged suffers from an accident, he may not recover compensation for the reason that the accident did not arise out of and occur in the course of his employment. (Matter of DeVoe v. New York State Railways, 218 N. Y. 318; Cole v. Fleischmann Manufacturing Co., 189 App. Div. 306.) There may be no absolute presumption that the accident occurred in the course of employment, but the facts must be established from which the inference of compensable injury arising out of and in course of employment may logically be drawn. (Joseph v. United Kimono Co., 194 App. Div. 568.) Our decision in Matter of Thompson v. City of Binghamton (218 App. Div. 451) is urged upon our attention as controlling in the decision of this case. We think the facts are substantially different, so that it may be distinguished. In the Thompson case the employee was the janitor of the school and was required to go to the school building when the fire alarm was sounded. There was aiv alarm, although in fact there was no fire, and the employee went [330] to the schoolhouse in an automobile. He hurried into the building and rushed downstairs into the boiler room; two alarm bells were ringing. He attempted to disconnect the electric system; he was greatly excited and was taken with a heart attack resulting in his death. In performing his duty-, Thompson had no personal interest to serve but was acting in behalf of his employer. The chief controversy in that case was as to whether his death was caused by an accident. Without discussion it was stated (p. 453): “ His injury was sustained while he was in the line of his duty; that is, in the course of his employment, and it fell upon him because of what occurred within the field of his employment, and because of what he did to serve the interest of his employer.” In this case, as has been stated, there was no alarm and no fire; and there is nothing but conjecture upon which to base a conclusion that the employee rushed to his own home in the interest of his employer, rather than for the purpose of protecting the safety of his wife and preventing injury to his property. The finding that Andrews was engaged in his regular course of employment at the time of the accident is without evidence to support it. The award should be reversed and the claim dismissed, with costs against the State Industrial Board. Van Kirk, P. J., Hinman and Whitmyer, JJ., concur; Hasbrouck, J., dissents with an opinion.