F. INCIDENTALNESS OF INJURIES

The question of incidentalness or nonincidentalness, under the phrase "arising out of and in the course of," Workmen's Compensation Law, § 3, subd. 7, and § 10, continues to be the pivotal point for a large number of contested compensation claims. The following topics and cases are consecutive upon like topics and cases of Bulletins 81 and 87.

1. ONE OCCUPATION INCIDENTAL TO ANOTHER

The effect of amendment of the definition of an employee, Workman's Compensation Law, § 3, subd. 4, by L. 1916, ch. 622, has been set forth with interpretative cases in Bulletin 87, pages 110-112.

a. Desk or Clerical Work

Office employment in a factory was covered by the Workmen's Compensation Law even as it stood prior to the above-cited amendment. The Appellate Division, Fourth Department, has unanimously so held in the following opinion reversing a judgment for $11,000 in favor of such an employee injured by collapse of a chair in 1915.

JOYCE V. EASTMAN KODAK Co., 182 App. Div. 354, Mar. 20, 1918. KRUSE, P. J.: The plaintiff worked in one of defendant's factories and was hurt while so employed. She was sitting in a chair sorting time cards; one of the legs of the chair was loose in the socket; it gave way; she went down to the floor and was injured on October 19, 1915. She seeks to recover damages for injuries so sustained. She contends that the defendant was negligent in furnishing the defective chair. The defendant denies the charge and urges that she knew, or should have known, the condition of the chair before she used it and voluntarily took the chances in using it, and furthermore, that in any event her only remedy is under the Workmen's Compensation Law.

The defendant makes photographic cameras and supplies. The Workmen's Compensation Law classes employment in that work as hazardous. (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 2, group 23.) The defendant had made provisions before the accident for securing payment of compensation for injuries to its employees and their dependents in one of the ways provided by section 50 of the act (as amd. by Laws of 1914, chap. 316).

The factory in which the plaintiff worked had about 200 employees in its several departments. Besides those who planned and supervised the business

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and artisans whose work entered directly into the construction of photographic cameras and supplies, there were desk-workers, elevatormen, janitors, watchmen, and others whose work was not so directly connected with the actual making of cameras and supplies. The plaintiff belonged to the latter class. She was employed in the cost and payroll department and her work was largely clerical; she did no work which directly entered into the construction of cameras and supplies.

The question is whether she was engaged in a hazardous employment within the meaning of this act. In Matter of Larsen v. Paine Drug Co. (218 N. Y. 252) it appeared that the employer was engaged in the manufacture of drugs and chemicals. The injured employee was a porter, elevator and handy man and at the time of the accident was putting up a small shelf at the foot of the elevator and lost his balance and fell down the elevator shaft. He did not take any part in the actual manufacture of drugs and chemicals. The Court of Appeals held that he was entitled to an award under the Workmen's Compensation Law. We think this case is within the reasoning of the decision in that case. If her employment was fairly incidental to the manufacture of photographic cameras and supplies, her claim is covered by the act. We think it was; and the defendant having made provisions for the payment of compensation for the accidental injuries of its employees as provided by the act, the plaintiff's remedy thereunder is exclusive. (Shanahan v. Monarch Engineering Co., 219 N. Y. 469.) The judgment and order should, therefore, be reversed and the complaint dismissed. All concurred. Judgment and order reversed and complaint

dismissed with costs.

b. Traveling Salesmanship

The Commission and the courts do not appear to have explicitly stated that injury to a traveling salesman upon his travels has been covered by the amendment of 1916 to § 3, subd. 4, but seem to have assumed that such is the case in certain instances. In Brown v. Parsons, Case No. S-261, May 10, 1918; 186 App. Div. 927, Nov. 13, 1918, and Meyer v. Meyer & Lange, S. D. R., vol. 17, p. 576, Bul., vol. 3, p. 217, May 29, 1918, awards to traveling salesmen for street injuries not connected with operation of vehicles appear to have been contested for nonincidentalness of accidents occurring upon public highways and to have been made and upheld upon authority of the Court of Appeals decision in Redner v. Faber & Son, text of which appears below, page 131. In the Brown case a traveling salesman for a bakers' supplies concern broke his leg in alighting from a street car; in the Meyer case a salesman injured himself by slipping in the street while on his way to collect a bill.

The courts have affirmed without opinion an award to the dependents of a salesman and demonstrator of chemicals killed

by explosion of an ammonia tank while in the plant of a prospective customer: Cain v. United Breeders Co., Death File No. 21072, July 18, 1917; 181 App. Div. 963, Dec. 28, 1917; 224 N. Y. 569, June 14, 1918.

Other cases of accidents to salesmen are: Johnston v. Ajax Rubber Co., S. D. R., vol. 18, p. 606, Bul., vol. 4, p. 91, Dec. 23, 1918; Gordon v. Salwen & Co., Bul., vol. 4, p. 119; and Kass v. Herschberg, Schutz & Co., S. D. R., vol. 21, p. 292, July 3, 1919; App. Div., argued Jan. 7, 1920. In the Kass case award was made for death of a traveling salesman from gas poison while asleep in a hotel bedroom.

c. Waitress in Munition Plant Restaurant

A waitress in a public restaurant maintained by a corporation engaged in manufacturing explosives was run down and injured by an automobile on a private street within the enclosure of her employer's premises; the Commission awarded her compensation, one Commissioner dissenting, and the employer took appeal: McCaffery v. Du Pont de Nemours & Co., S. D. R., vol. 20, p. 373, April 4, 1919; App. Div. -, reversed on extra-territorial grounds, Nov. 21, 1919.

2. SUBSIDIARY OR ADJUNCTIVE WORK

The Compensation Law excepts farm laborers from coverage. Farming and kindred occupations may be compensatable, however, when incidental or subsidiary to other occupations. The Appellate Division, unanimously and without opinion, has affirmed an award to a canning factory operative who was unintentionally injured by a fork thrust of a co-employee while he was gathering beans that had been grown by the factory for canning purposes: Clarke v. Sherman, S. D. R., vol. 15, p. 602, Feb. 15, 1918; 184 App. Div. 921, May 21, 1918. The Commission, citing the Clarke case, awarded compensation to an employee injured by fall of a ladder while he was gathering apples for his employer. The theory of the award was that gathering the apples was incidental to pruning the trees, which in turn was incidental to buying an abandoned farm and putting it into useful and presentable shape for purpose of sale at a profit, which still further in turn was incidental to a general contractor business of building, painting, decorating and grading. The injured

employee's main work for his employer had been helping to erect or repair the farm buildings. The Appellate Division affirmed the award unanimously and with opinion: O'Dell v. Bowman, S. D. R., vol. 19, p. 523, Bul., vol. 4, p. 166, April 9, 1919; 189 App. Div. 386, Nov. 12, 1919. The opinion is given below, page 146.

While threshing grain is not within the compensation law's list of hazardous employments, such threshing may be incidental to milling, which is within the list, and accordingly, may be within the law's coverage. The Appellate Division intimated as much in reversing the award and remanding the case of Vincent v. Taylor Bros., text of its opinion in which is in Bulletin 87, pages 80, 81. Upon rehearing the case the Commission found that the main business of the thresher operators was operation of a mill and that Vincent had worked in the mill one day out of the twenty of his employment. Upon these new findings the Appellate Division affirmed compensation to him: Vincent v. Taylor Bros., File No. 16862, March 21, 1918; 185 App. Div. 901, July 2, 1918.

Cleaning up and caring for premises is incidental to the hazardous business that is being conducted upon them: Laurino v. Donovan, below, p. 127.

Repairing an automobile is incidental to operating it: Kender v. Reineking, S. D. R., vol. 19, p. 485, Bul., vol. 4, p. 143, Feb. 25, 1919; 188 App. Div. 984, June 30, 1919.

3. COMING TO OR LEAVING WORK

According to court decisions, as a general rule accidental injuries to employees coming to or leaving work, in order to be compensatable, must occur (1) upon the employer's premises or at his plant, (2) within a reasonable time before beginning or after quitting work and (3) without intervening pursuit other than the employment. Illustrative cases decided prior to May, 1918, have been presented in Bulletin 81, pages 74-82, 195-197; and in Bulletin 87, pages 117-139. On December 9, 1919, the Court of Appeals affirmed the Appellate Division's judgment in Murphy v. Ludlum Steel Co., described in Bulletin 87, pages 126, 127, 253. Cases decided since are presented here.

a. Non-compensatable Cases

An accident upon the employer's premises to an employee coming to or quitting work is not compensatable if it does not occur within reasonable distance of the point of work. In the following railroad case the employee had quit work and had traveled considerably more than half a mile upon the railroad's right of way before meeting with his accident. The Appellate Division had affirmed an award to his widow unanimously and without opinion. (184 App. Div. 917). In reversing the award Judge Hiscock, speaking for the Court of Appeals, said: "The fact that an employee is on the 'premises' of his employer when those premises consist of a railroad right of way or yards does not have the significance which it naturally would have in the case of an ordinary manufacturing plant. We know that such rights of way extend indefinitely and that such yards are of no standard size but run from small areas to large tracts extending over many miles." The opinion in full is as follows:

MCINERNEY V. BUFFALO & SUSQUEHANNA R. R. CORP., 225 N. Y. 130, Jan. 7, 1919.

HISCOCK, Ch. J.: What we regard as the determinative facts which have been found in this case, aside from formal ones, are to the effect that the deceased workman was in the employ of defendant as a car inspector in one of its yards; that he was accustomed to go for his dinner to his home, which was not on the defendant's premises, on weekdays taking the highway and on Sundays walking on the railroad right of way in order to avoid exposing himself in his working clothes to the view of people on the highway; that he took this route "without objection" on the part of his employer and in so doing "violated no enforced rule; " that on Sundays he received pay for eleven hours which included the one which he was permitted to take for dinner; that on the day in question, which was Sunday, as he was thus going to dinner he received injuries causing death by falling from a trestle which was "within the limits of the railroad yards in which yard he performed certain of his duties."

The Industrial Commission further found as a conclusion that the accident to deceased arose out of and in the course of his employment," but since we have findings of the specific circumstances which gave rise to the accident, these are to control rather than the general conclusion drawn from them by the commission.

Tested by the general character of the undertaking in which the deceased was engaged at the time of the accident, the latter did not arise in the course of or spring out of his employment. Such a trip of an employee as he was taking is not under ordinary circumstances part of the employment. It is true that it has been held many times that where an employer requests