Frost v. H. H. Franklin Manufacturing Co.

Hinman, J.:

We cannot see how the award in this case can be sustained. The claimant was in charge of the tool storage department of the H. H. Franklin Manufacturing Company’s automobile factory at Syracuse, N. Y. His occupation required him to occupy a small room from which he passed out tools to the workmen and received tools from them through a window, in connection with which window there was a shelf upon which the tools and materials were placed as they were handed out or received by the claimant. While claimant was engaged in writing out an order for some materials on this window shelf for a workman, another workman by the name of Randall came up and asked for wire. The claimant took some wire in his left hand and handed it over to Randall who had a file in his hand with which he started to file off a piece of the wire of the necessary length while standing at the window. Almost simultaneously with the act of handing out the wire, claimant “greeted the said fellow employee [Randall] by pulling the peak of his cap down over his eyes, and the said fellow employee in attempting to lift the said cap from over his eyes with the same hand in which he held a file, the said file flew from its handle and struck claimant in the right eye.” Claimant sustained loss of sight of the eye and the State Industrial Board has made an award, holding that it was an accidental injury arising out of and in the course of his employment. It is undisputed that it was a perfectly friendly act of greeting on the part of the claimant when he pulled the peak of Randall’s cap down over Randall’s eyes.

The referee who heard this case has endeavored to sustain the award upon the theory that the proximate '• cause of the accident was the faulty file and upon the theory that if it had not slipped out of the handle no accident would have occurred. We think, however, that the accident only flowed as a continuance of the primary act of the claimant who voluntarily stepped aside from his employment to satisfy a purely personal desire. It was, therefore, not an accidental injury arising out of his employment.

The cases are readily harmonized if we examine them to see whether in the particular case the injured employee would be deemed to have stepped aside from his employment by committing a voluntary act which proximately led to the accident, an act which had no relation to the protection or promotion of the master’s interests but which was of a purely personal character, to satisfy a purely personal grievance, pleasure or other desire! If so he was not entitled to compensation. (Stillwagon v. Callan Brothers, Inc., 183 App. Div. 141; Griffin v. Roberson & Son, 176 id. 6; Matter of Di Salvio v. Menihan Co., 225 N. Y. 123; Matter of Scholtzhauer v. C. & L. Lunch Co., 233 id. 12.) If his act was an involuntary reaction to a situation not initiated by himself, he could recover, provided the situation arose out of the doing of something in the interest of his employer. (Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter of Verschleiser v. Stern & Son, 229 id. 192; Matter of Markell v. Green Felt Shoe Co., 221 id. 493; Matter of Knocks v. Metal Packing Corp., 231 id. 78.) And if he was innocently engaged in his work and not a participant in any sense in the affair out of which he received his injury, an affair which could be considered a factory condition reasonably to be expected, one of the perils of the service, even though not a matter tending to serve the master’s business, such injured workman could recover. (Matter oLeonbruno v. Champlain Silk Mills, 229 N. Y. 470.)

The injury to the claimant in this case was the natural consequence of his own voluntary act, not related to the master’s interests but purely personal in character and a departure from his employment when in a spirit of playfulness and friendly greeting' he pulled Randall’s cap over his eyes. This initiated the involuntary act of Randall by causing the latter to suddenly raise his hands toward his cap to readjust it. The looseness of the file in the handle was a purely secondary cause. If Randall, the innocent party, had been the one injured by having the file strike him in the eye, a different question would have been presented since in that case no charge could have been laid against Randall of having stepped out of his employment.

The award should be reversed, with costs against the State Industrial Board, and the claim dismissed.

H. T. Kellogg, Acting P. J., and Van Kirk, J., concur; Kiley, J., dissents, with a memorandum, in which Hasbrouck, J., concurs.