held that to warrant a recovery under our Workmen's Compensation Act it must appear that the employee's death was caused (1) by an accident (2) arising out, and (3) in the course, of his employment, and that all of these essential facts must be found by the trial judge, and must be contained in his written determination. [2] As a matter of fact the trial judge, in the case at bar, while determining that the deceased's injury occurred in the course of his employment, failed to find that it arose out of that employment or was the result of an accident. And, owing to the defense of interstate commerce, he would have to go a step farther and find whether at the time of the accident the deceased was engaged in interstate or intrastate commerce. As shown above, he noticed the point, but held that it was unnecessary to determine it. If he had held that decedent was engaged in interstate commerce, then he could not have awarded compensation under our Workmen's Compensation Act. See, Erie R. R. Co. vs. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057; Rounsaville vs. Central Railroad of N. J., 101 Atl. 182. On the contrary, if he had held that the deceased was engaged in intrastate commerce then he could have awarded compensation, if he found, as facts, that the deceased came to his death as the result of an accident arising out of and in the course of his employment. [3] The right of the Supreme Court to review a proceeding under the Workmen's Compensation Act is limited to questions of law, and it cannot review determnations of fact if there is evidence to support them. Dunnewald vs. Henry Steers, Inc., supra. Upon the authority of the Dunnewald Case the judgment of the Supreme Court affirming the judgment of the common pleas must be reversed, to the end that there may be a new trial and proper determination of the facts in the common pleas, either upon the evidence already put in, or such other evidence as the parties may see fit to offer. No costs will be allowed in this court. COURT OF APPEALS OF NEW YORK. GIFFORD VS. T. G. PATTERSON, INC., ET AL.* 1. WORKMEN'S COMPENSATION-PRESUMPTION. Workmen's Compensation Law (Consol. Laws, c. 67) § 21, presuming that injury was not caused by employee intentionally or from his intoxication, is inapplicable on question whether injury arose within the employment. 2. WORKMEN'S COMPENSATION-SCOPE OF EMPLOYMENT"ARISING OUT OF AND IN COURSE OF EMPLOYMENT." A night watchman, who went asleep and fell through an open doorway, held not injured within the line of his employment, under the Workmen's Compensation Act. Appeal from Supreme Court, Appellate Division, Third Department. Proceedings for workmen's compensation by Helen L, Gifford against T. G. Patterson, Incorporated, employer, and the Lumber Mutual Casualty Insurance Company, insurance carrier. From an order of the Appellate Division (165 N. Y. Supp. 1043), affirming an award by the State Industrial Commission, the employer and insurance carrier appeal by permission. Order reversed, and determination of Industrial Commission annulled. Jeremiah F. Connor, of New York City, for Appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for State Industrial Commission. Bernard J. Isecke, of New York City, for Claimant. CHASE, J. Charles W. Gifford, a night watchman employed by T. G. Patterson, Inc., a corporation engaged in the business of manufacturing packing boxes, received injuries July 9, 1916, which resulted in his death. A claim was filed by his widow for compensation under the Workmen's Compensation Law. The State Industrial Commission (two of the commissioners dissenting) made her an award. The determination of the Commission has been affirmed by the Appellate Division of the Supreme Court The material facts as found by the Commission are as follows: "* * * The duties of Charles W. Gifford were to watch the premises during the nighttime and to go around the building for that purpose and to regularly punch a time clock. In the front of the building there was a chute running from the second floor to the pavement, down which it was customary to send the goods to be put on the wagons. "(2) On said date, at about 1:45 a. m., Charles W. Gifford * Decision rendered, Nov. 20, 1917. 117 N. E. Rep. 946. was found by a policeman at the bottom of the chute lying in a pool of blood. Prior to being so found Charles W. Gifford had obtained a chair and was sitting in a doorway on the second floor at the top of the chute, it being a very warm night. He dozed off and lost his balance and fell out of the window down the chute, carrying with him the chair on which he had been sitting. The fall caused a fracture of the right femur and elbow and a gash in the head and an injury to the right hip. He was taken immediately to the hospital and died there on July 17th of shock occasioned by the said injury. The dozing in his chair by Charles W. Gifford just prior to the said fall was not an unreasonable act under the circumstances, and did not constitute an abandonment of his employment, but amounted, at the most, to negligence only. "(3) * "(4) The injuries which resulted in the death of Charles W. Gifford were accidental injuries and arose out of and in the course of his employment." [1] The statement in the last paragraph of the second finding and in the fourth finding are conclusions based upon such specific findings of fact. Such conclusions do not purport to be and are not in fact based upon presumptions authorized by section 21 of the Workmen's Comensation Law. * * * Matter of The duties and to go [2] We think that as matter of law the conclusions of the commission are not justified by the facts found. Glatzl vs. Stumpp, 220 N. Y. 71, 75, 114 N. E. 1053. of Gifford were to "watch the premises around the building for that purpose." The findings show that he abandoned his duty and after first obtaining a chair sat therein on the second floor of the building at an open doorway and sitting therein "dozed off" and fell down a chute and received the injuries from which he died. He was employed to watch the premises. Instead of doing so he prepared for himself a comfortable position and slept. If, in connection with his employment, he was authorized or permitted to procure a chair and spend a portion of his time therein "dozing off" in the doorway, it was not shown before the commission. His injury was not received as a natural incident of his work. It was not a risk connected with his employment or arising out of and in the course of his employment. The acts of Gifford as found by the Commission, instead of being in the course of his employment, were directly contrary to the object, and purpose for which he was employed. When an employee is injured through some act of his own, not an incident to his employment, and not authorized or induced by his employer in connection with his employment, the injury does not arise out of and in the course of his employment within the meaning of subdivision 7, section 3, of the Workmen's Compensation Law. See Matter of Heitz vs. Ruppert, 218 N. Y. 148, 112 N. E. 750 L. R. A. 1917A, 344; Matter of Saenger vs. Locke, 220 N. Y. 556, 116 N. E. 367; Spooner vs. Detroit Saturday Night Co., 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17. The order should be reversed and the determination of the State Industrial Commission annulled, with costs against the State Industrial Commission in this court and in the Appellate Division. Hiscock, C. J., and Cuddeback, McLaughlin, Crane, and Andrews, JJ., concur. Cardozo, J., not voting. Order reversed, etc. SUPREME COURT OF NEW YORK. STATE INDUSTRIAL COMMISSION VS. MCCORMICK ET AL. IN RE CASELLA ET AL.* 1. WORKMEN'S COMPENSATION-CONSTRUCTION OF ACT. Workmen's Compensation Law (Consol. Laws, c. 67) § 17, as amended by Laws 1916, c. 622, § 5, providing that compensation to alien nonresidents shall be the same as for residents, except that dependents in any foreign country shall be limited to surviving wife or child or children, or, if there be no surviving wife or child or children, to surviving wife or mother, or grandfather or grandmother, whom the employee has supported for the period of two years prior to the date of the accident, except that the Commission may at its option, or on the application of the insurer shall, commute future installments by paying onehalf of the commuted amounts of such instalments, does not grant compensation, but limits grants otherwise made. 2. WORKMEN'S COMPENSATION-CONSTRUCTION OF ACT. While, under Workmen's Compensation Law, § 16, subd. 4, providing for compensation to parent or grandparent if dependent, dependency at the time of the accident is the controlling feature, under section 17, as to compensation of alien nonresidents, support of such applicants for the year prior to the accident controls. 3. WORKMEN'S COMPENSATION ACTS "OR." CONSTRUCTION Under Workmen's Compensation Law, § 17, as amended by Laws 1916, c. 622, § 5, providing compensation for an alien nonresident father "or" mother, the word "or" does not restrict compensation to one parent, if both have been supported as required, but means "either," so that * Decision rendered, Nov. 14, 1917. 167 N. Y. Supp. 564. each alien nonresident dependent upon parent is entitled to 121⁄2 per cent of the deceased employee's wages. Lyon and Sewell, JJ., dissenting. Appeal from State Industrial Commission. Application by Maddelana Casella and another for compensation for the death of Giovanni Babino, employee, opposed by Thomas E. McCormick and the Casualty Company of America. From an award of the Industrial Commission in favor of the applicants, the employer and the Superintendent of Insurance, as liquidator of the insurer, appeal. Affirmed. Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ. Moses James Wright, of New York City (Edgar Pitske, of New York City, of counsel), for Appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents. Robert W. Bonynge, of New York City, for State Industrial Commission. KELLOGG, P. J. [1-3] Section 17 does not grant any compensation; it is a limitation upon grants otherwise made. Section 16, subdivision 4, provides a compensation of 25 per cent of the average wages "for the suport of each parent or grandparent of the deceased, if dependent upon him at the time of the accident." Dependency at the time of the accident is the controlling feature there. Section 17 provides that nonresident aliens shall have the same compensation as resident aliens, except that dpendents residing in a foreign country are limited. It omits any provisions for brothers and sisters, and does not provide for all dependent fathers, mothers, grandfathers, or gradnmothers. The compensation is limited to those who, for the period of one year prior to the accident, have been supported in whole or in part by the employee. Here "support," in whole or in part for the year, is the controlling feature. I cannot feel that the use of the word "or" is intended to restrict the compensation to one parent, if both have been supported for the time stated. The "or" is probably used to cover the same ground as the word "either" in the previous section; that is, the compensation of 25 per cent is not for both parents, but for each one. Otherwise it is difficult to tell which one is to receive the award, and if the award is to the grandfather, and he dies, apparently the dependent grandmother is left without support. To cover the legislative intent, "or" is frequently construed to mean “and.” I can find no intent in this provision to omit either the grandfather or the grandmother, and feel that they are both included. The section, however, in effect, limits the compensation to one-half the amount which residents would receive. If both grandparents were supported by the empolyee, the award to each would be based upon 121⁄2 per cent of the wages. If the section is construed otherwise, one is to receive 122 per cent of the Vol. I-Comp. 29. |