I am unable to agree with the opinion for reversal. The employer reported that claimant was injured in his regular occupation. The Board has found that his injury arose "out of and in the course of his employment." His home and usual place of employment was at Watkins Glen, but he was sometimes sent out on the road by his employer to sell goods. When away from home the employer paid his expenses, including his meals, as part of his wages. He had no regular hours for taking his meals. On the day in question he was sent with a traveling salesman of a fertilizer company to sell fertilizers to farmers. The employer testified that "he had to catch his lunch when he could." His employment was continuous from the time he left his employer's place of business. During all that time he was in his master's service engaged in his business under the protection of the Workmen's Compensation Law (Cons. Laws, ch. 67). He was in the restaurant by reason of his employment, in the course of his duty to his employer, and in furtherance of the business in which he was engaged, just as he would have been if he had been compelled to step into a public toilet and had been injured while therein. (Cf. Matter of Dudenhausen v. Newcombe Oil Corp., 217 App. Div. 707; Special Bulletin No. 149, Department of Labor, p. 60.) Both were public places and to each of them he was compelled to go by nature. The employer knew that he would be compelled to go into a public place to eat while on the road in the course of his employment, and because he knew it, he agreed to pay for his meals as a part of his wages. He was in the restaurant solely because of his employment. If he had remained at his usual place of employment he would not have met with the injury. *Page 15
It was solely because he was obeying instructions that he was compelled to go into a public place for his meal. True, the employer did not know that he would go into the particular restaurant, but he knew that he would have to eat and go into some public place where food was supplied. While the risk was "unanticipated" and "infrequent," still the claimant was subjected to that risk in fulfilling his duty to his employer and carrying out his master's business. The risk was, therefore, an incident of the employment and covered by the statute enacted to afford protection to the servant while engaged in his employer's business. There existed a direct causal connection between the service which he was performing and the risk and resulting injury.
This case is quite different from one where an employee has a regular time for his meals which are not furnished by the employer. In such a case the interval allowed for meals is the servant's own time and he pays for his own meals.
The principles decided in Matter of Tannenbaum v. PerfectTailoring Co. (243 N.Y. 577) and Matter of Crippen v. PressCo. (254 N.Y. 535) are applicable here.
The award should be affirmed, with costs to claimant and disbursements to the State Industrial Board.
CRANE, LEHMAN and KELLOGG, JJ., concur with O'BRIEN, J.; HUBBS, J., dissents in opinion in which POUND, Ch. J., and CROUCH, J., concur.
Ordered accordingly. *Page 16