Claim of Giliotti v. Hoffman Catering Co.

Davis, J.

(dissenting). If the act of the decedent in going to his room, removing the garb he was required to wear in the course of his employment and putting on his street clothes preparatory to going home, was a purely personal act unrelated to his employment, then his accidental death did not arise out of or occur in the course of his employment. If, on the other hand, his employment did not cease when his actual work in the kitchen ended, but continued until such a time as he had had a fair opportunity to leave his employer’s premises, then this award should be affirmed.

Decedent was told by his employer at one-ten a. m. to close up the kitchen. How long he was thus occupied is not disclosed. He was seen in his room dressing at one-thirty. According to *208the police report the fire started at about that time, although it was not discovered by the inmates of the house until about one-forty when it was then under way to such an extent that it barred the common method of egress to one or more of the occupants. The room decedent ordinarily occupied during the time he was off duty was furnished as a part of his wages. He did not make his home on the premises except as an employee. On this particular night the decedent was evidently preparing to go home, as was his custom on his day off. Did he then fall within the rule that going to and from the actual work on the employer’s premises is reasonably incidental to the employment? This rule connotes a reasonable opportunity to leave his employer’s place of business and go to a place from which he may direct his course to his own domicile.

His act in going to his room and changing from his working clothes was not definitely disassociated from his employment, nor was it positively one not inherent in the nature of such employment for it was required that he wear certain clothes in his work, unsuitable for the street. It can scarcely be said that he did not act with reasonable dispatch and method in leaving the performance of specific duties and proceeding to leave the premises of his employer by a way provided. It would seem that the purpose and method of his employment were not fulfilled until he had reasonable opportunity to reach the street. If at the time of the fire he had been changing his clothes in the kitchen or an adjoining room provided for that purpose, I think it could not be disputed that his death occurred in the course of his employment. His act in going to his room for the same purpose does not seem so remote or unrelated to his work as to change the application of the principle. There seems to have been no doubt oh this question on the part of the employer. It filled out October 30,1925, and filed an “ Employer’s first report of injury.” One question on the printed form was, “ Was he injured in regular occupation? ” The answer was “ Yes.”

It is a close case but I think it falls within the general scope and purpose of the Workmen’s Compensation Law, liberally construed. (Matter of Lynch v. City of New York, 242 N. Y. 115; Matter of Kowalek v. N. Y. Cons. R. R. Co., 229 id. 489, 492; Pope v. Merritt & Chapman D. & W. Co., 177 App. Div. 69; Bylow v. St. Regis Paper Co., 179 id. 555; Martin v. Met. Life Ins. Co., 197 id. 382; affd., 233 N. Y. 653.)

I favor affirmance.

McCann, J., concurs.

Award reversed and claim dismissed, with costs against the State Industrial Board.