Claim of Penzara v. Maffia Bros.

Appeal by employers and their insurance carrier from an award of the Workmen’s Compensation Board granting disability compensation to claimant for an eye injury. The employers operated an automobile supply and machine shop, and claimant was employed as a handy man. In the course of his work he repaired automobiles. His regular hours of employment were from 9:30 a.m., to 5:30 P.M. On May 23, 1951, during an interval when there was no work available on a customer’s car, claimant was bending a piece of steel in a vise owned by the employers for use on his own car. A piece of spring steel slipped from the vise and injured his left eye. Appellants’ sole contention is that the injury did not arise out of and in the course of employment. Claimant was required to remain upon the employers’ premises during such “ slack ” intervals, and had customarily been permitted to use the employers’ tools and do work upon his own car when not otherwise occupied. This was with the knowledge and consent of the employers, and had been a common practice. At the time the accident oecured claimant was waiting for a job to be done for his employers. The nature of claimant’s employment, the requirement that he remain upon the employers’ premises, and the long-sanctioned practice of using the employers’ tools for personal work during regular working hours, gave rise to the risk which brought about his injury. The accident was an incident of his employment, and the board has found that it arose out of and in the course of his employment. We think the evidence permits such a finding. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.