Claim of De Angelis v. Garfinkel Painting Co.

Bergan, P. J. Claimant, while working as a painter, was injured when a stone was thrown through a window breaking the pane. The stone and broken glass from the window both struck claimant in the face. Although the facts are entirely undisputed and the Workmen’s Compensation Board has found that “ the accident arose in the course of employment ”, it dismissed the claim at a matter of law because 1 ‘ it did not arise out of the employment ’ ’. The authority on which the board acted was Matter of McCarter v. La Rock (240 N. Y. 282 [1925]). Claimant in that case was injured by the explosion of an old shell in property adjoining the employer’s premises. The court held the accident did not arise out of the employment since the risk must be more than one “ utterly disconnected from and unrelated to the employment” and in which the risk “only causes” injury because the employee “happens to be in a certain position” (p. 289). The case at bar does not fall readily into the category established by that decision. The stone thrown through a window of the work premises, first damaging the premises and then injuring the employee both directly and by the broken material of the work premises itself, is quite a different thing from an injury caused by an old shell exploding in other premises and in which the work site plays no role as a causative factor in the causation of injury. Moreover, the presumption created by section 21 of the Workmen’s Compensation Law that the accident arose out of the employment, as well as in it, is not overcome by the somewhat equivocal facts in the record before us. (Matter of Humphrey v. Tietjen & Steffin Milk Co., 235 App. Div. 470, affd. 261 N. Y. 549.) What was said in Matter of Ramos v. Taxi Tr. Co. (276 App. Div. 101, 104) about Humphrey, that the facts on which the presumption rested were not there disputed applies with equal force to the case now here. In Bamos there was substantial controverting evidence to defeat the presumption. But here it is apparent, and perhaps likely, that the person who threw the stone into the closed window of the work prem [164] ises intended to damage the premises. Nothing in this record tends to defeat the presumption of section 21. Indeed, if the premises were set on fire, or blown up by an enemy of the owner, it could not seriously be argued that the claimant’s injury would not arise out of the employment. The case at bar is, indeed, precisely the kind of case in which the mandate of the statutory presumption ought to be effective. Besides all this, it seems clear from the subsequent trend of the New York decisions that the rule of McCarter has been so distinguished and circumscribed that it now retains little vitality and ought to be limited almost to its own peculiar facts. In Matter of Filitti v. Lerode Homes Corp. (244 N. Y. 291) a claim was sustained arising from a cornice falling from an adjoining building. The court regarded this as ‘ ‘ a risk which arose from working alongside or underneath a building” (p. 293). In Matter of Malena v. Leff (265 N. Y. 533) an explosion in an adjoining building caused a collapse of the wall of that building, which fell on the roof of the work premises causing claimant’s injury. An award was upheld on the authority of Filitti; McCarter was not referred to. The injury in the case before us, caused in part by the broken glass of the work premises itself, seems a stronger case for compensation than Malena. (See, also, Matter of Christiansen v. Hill Reproduction Co., 262 App. Div. 379, affd. 287 N. Y. 690; Matter of Santos v. Guemes, 270 App. Div. 1057, mot. for lv. to app. den. 296 N. Y. 1061; Matter of Groppe v. Penney Co., 272 App. Div. 851, mot. for lv. to app. den. 297 N. Y. 1035.) The decision should be reversed and the claim remitted to the board for its further consideration with costs to appellant against respondents employer and carrier.