Claim of Orpin v. D. P. Brother & Co.

Reynolds, J. Decedent was employed under a personal services contract by D. P. Brother & Co., Inc., as a piano player in an orchestra which was to tour the United States as part of an advertising program. In October, 1955, when decedent’s death occurred, the orchestra was appearing at the Hilton Hotel in Port Worth, Texas. Decedent worked until the week end of October 8 and then left to visit some friends in Dallas. He returned to the hotel Monday morning at approximately 7:30 a.m. but failed to attend a rehearsal scheduled for 9:30 a.m. His body was found later that morning in his hotel room in a bathtub, which was filled to the overflow. An autopsy was performed and it was determined that death was caused by asphyxiation due to drowning. According to the report of a toxicologist, an analysis of decedent’s blood revealed a blood alcohol level of 342 milligrams per cent. The report further indicated that when the alcohol content of the blood in any individual reached 250 milligrams per cent or higher, the individual is intoxicated. Evidence was introduced on behalf of claimant that decedent was under the jurisdiction of the employer while on tour; that he was subject to call at all times; and that the employer arranged for hotel accommodations. In Davis v. Newsweek Mag. (305 N. Y. 20, 26-27) the Court of Appeals, reviewing the compensation cases dealing with the question of what activities of an employee away from home resulting in accidents arise out of and in the course of his employment, stated: “ Careful examination of these cases reveals that there is one operative factor common to all. In each and every instance the employee has been directed, as part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time. In those circumstances, the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment.” [284] Appellant attempts to bring the facts of the present case within the reach of the above statement. However, the court in Davis also pointed out that ‘ ‘ there can be no compensation for injuries arising out of purely personal activities not directly related to the employment. ” (p. 26.) The board, in the instant case, found that the taking of a bath was purely a personal act, which bore no relationship to decedent’s employment as a musician and was not caused by reason of his being at the hotel. We agree. The facts in Matter of Davidson v. Pansy Waist Co. (240 N. Y. 584) (cited by the Court of Appeals in Davis, supra, for the rule that an accident resulting from purely personal pursuits is not compensable) are very similar to those in the instant case. (Cf. Matter of Seaman v. Hewlett Fire Dept., 8 A D 2d 573.) The decision should be affirmed, without costs.