"In the course of employment" is a different thing from "during the period of employment." It connotes the idea that the employee is doing something which is part of his service to his *Page 284 employer, or incidental thereto. (Davidson Co. v. M'Robb ([1918] A.C. 304.) Ordinarily, sleeping upon the premises of the employer, in a house or room furnished or leased by him, forms no part of such service. In Philbin v. Hayes (11 B.W.C.C. 85) the employer furnished huts, with sleeping accommodations, for his employees, at a nominal charge per night. During a severe wind storm a hut, in which an employee was sleeping, was blown down and the employee was injured. It was held that he was not in the course of his employment. In Murphy v. Ludlum Steel Co. (182 App. Div. 139; affd., 227 N.Y. 634) an employee was supplied with a house, upon the premises of his employer, in which he lived and for which he paid rent. He was killed while going from the house to the factory of his employer upon the same premises. It was held that he was not in the course of his employment. It can make no difference that in these cases the employee was not given the use of his house as a part of his compensation. Clearly, the enjoyment of compensation by a servant does not involve a service performed for the master. If it were otherwise, a servant would be in the "course of his employment" when drinking intoxicating liquors purchased with his wages or attending at a theatre upon a ticket so purchased. Whether an employee receives money from his employer with which to rent a house from him, or, in lieu of moneys, receives the use of the house and a diminished wage from his employer, the case must be the same. In either event the enjoyment of the use is the enjoyment in part of the wage, a personal privilege rather than a servant's duty. It has been so held in two cases decided at the Appellate Division. (Matter of Lauterbach v. Jarett, 189 App. Div. 303, and McQuivey v. International Railway Co., 210 App. Div. 507. ) In the former, a janitress of an apartment building, who received the free use of an apartment therein, as a part of her compensation, was injured by the falling of *Page 285 plaster from her kitchen ceiling. In the latter, an employee was burned to death while sleeping in the paint shop of his employer, the use of which was furnished free of charge. In each case it was held that the employee was not in the course of his employment. Of course a contract of employment may require the presence of the employee upon the premises at all times, in which case a service to the master is involved whenever the servant is present. The question must always be: Was the servant enjoying a privilege or performing a required service by remaining upon the premises? Thus, in the McQuivey case the court said: "Moreover, sleeping in the paint shop, whether permitted or not, was a mere privilege extended, and did not involve a service to the employer." In the case of a domestic servant, such as a waitress, a butler, a valet, a ladies' maid, it may be inferred from the well-known nature of the employment, without a special contract term so providing, that the employee is required to live upon the premises, in order that at all times he or she may be subject to call to perform some household duty, whether in the middle of the day or in the middle of the night. In the case of a hotel chef it seems to me that no such inference can be indulged. His place of work is in the kitchen. His service begins when he goes to the kitchen in the morning and ends when he leaves it at night. It does not appear in the case at bar that the employee, a chef in a restaurant, was subject to call or required to cook, when called, during the night. Yet to cook was his sole duty. Even the appellant, in his brief, says of this employee: "On each one of these nights, when he crossed the threshold of his room, after his day's work was done, he ceased to be covered by the act, as he had retired to his temporary home." For the reasons stated, I do not agree that the employee was in the course of his employment by reason of his presence in a bedroom furnished by the master when the accident occurred. *Page 286
An accident does not "arise out of the employment" merely because the presence of the employee at the scene of an accident is occasioned thereby. (Matter of McCarter v. La Rock,240 N.Y. 282; Allcock v. Rogers, 11 B.W.C.C. 149.) An accident which occurs must spring from one of the risks peculiar to the particular locality of the work. "An injury does not arise out of the employment unless the hazard causing it is, within rational apprehension, an attribute of or peculiar to the specific duties of the employment." (By COLLIN, J., in Matter of Kowalek v.N.Y. Consol. R.R. Co., 229 N.Y. 489.) Of an employee injured by the falling of a cornice of a building adjoining a pit where he was digging, it was said by Judge CRANE in Matter of Filitti v.Lerode Homes Corp. (244 N.Y. 291): "The danger from the falling cornice attached to the spot where the claimant was at work; it was peculiar to the situation, and a risk which arose from working alongside or underneath a building." Of an employee who had been struck in the eye by an apple thrown in fun by a fellow-employee, it was said by CARDOZO, J., in Matter ofLeonbruno v. Champlain Silk Mills (229 N.Y. 470): "He was brought by the conditions of his work `within the zone of special danger.'" Again, it was said: "Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service." In Matter of McCarter v. La Rock (supra) this court said that it was thoroughly committed "to an interpretation of our present statute which requires as the basis for an award a causal connection, apparent to a reasonable mind upon consideration of all the circumstances, between the conditions under which the work is required to be performed and the resulting injury; injury from an accident which need not have been foreseen or expected but which after the event must appear to have had its origin in a risk incidental to the employment and to have flowed from that *Page 287 source as a rational consequence, and that there must be more than a mere location of the employee in the pathway of an accident entirely disconnected from his employment." In the case at bar the employee was killed by the burning of a building in a room in which he was present at the time of the fire. The cause of the fire is unknown. It does not appear that the building was of a peculiarly inflammable nature or that the fire arose from a defective stove, furnace, chimney, electric wire or other device, which subjected the building to a peculiar fire risk. The fire may have come from a spark alighting on the roof, or a lighted match or cigarette left upon the premises, or from many other causes not involving a risk inherent in the building. It did not appear "after the event" that the fire "had its origin in a risk incidental to the employment" or that it "flowed from that source as a rational consequence." It would be otherwise in the case of an injury from a falling building. In such a fall there is necessarily involved a structural weakness inherent in and peculiar to the building. It cannot be said, without proof, that a building which burns necessarily catches fire through some fire hazard inherent therein and peculiar thereto. For this reason I do not think that the accident was one which arose out of the employment.
I, therefore, favor an affirmance.
CARDOZO, Ch. J., CRANE, LEHMAN and O'BRIEN, JJ., concur with POUND, J.; KELLOGG, J., dissents in opinion in which ANDREWS, J., concurs.
Ordered accordingly. *Page 288