Claim of Lepow v. Lepow Knitting Mills, Inc.

Bliss, J.

(dissenting). The claimant’s husband was a traveling salesman for the employer which was engaged in the business of wholesaling and exporting ladies’ “ ready-to-wear.” On October 12, 1938, he left New York on a business trip to Capetown, South Africa, where he arrived on November 4, 1938. Thereafter ■ he traveled from place to place in South Africa and Southern Rhodesia taking orders which he forwarded by mail to his employer. On December 28, 1938, he died in South Africa from malignant tertian malaria which he contracted from the bite of a certain mosquito prevalent in the tropics. The employer admitted in its first report that the decedent contracted the disease while working and the proof shows that the decedent was in South Africa solely on business and not on any mission of his own. The period of incubation for the disease is from one to two weeks so that deceased was bitten at some time between December fourteenth and December twenty-first. During this period he was working continuously for his employer as his reports which were subsequently received in New York showed.

. Decedent died as the result of a risk peculiar to his employment and to which he was exposed by his employment. His death arose out of his employment. We are told, however, that the award cannot be sustained because the proof does not show whether *217or not he was bitten while he was actually at work. I do not concur in such a narrow construction of the Workmen’s Compensation Law. Deceased’s mission was solely one of business. He was engaged in the interest of his employer from the time he left New York until his death and he died as the result of such employment. Had the ship on which he traveled sunk while he was asleep and he had been drowned, there would be no doubt about bis death being the result of an accident arising out of and in the course of his employment. So here, the exposure which resulted in his death was not caused by any personal act of his own and such risk was incidental and peculiar to his employment. (Matter of Lief v. Walzer & Son, 248 App. Div. 651; affd., 272 N. Y. 542; Matter of Giliotti v. Hoffman Catering Co., 246 id. 279.) It was not an isolated, fortuitous occurrence of the kind which may happen anywhere and to which all persons alike are exposed without relation to the fact that the employment brought the deceased to the place of occurrence. It arose out of this deceased’s particular contract which took him to a location where he was peculiarly subject to a risk resulting in his death and is thus analogous to a street risk. There was inherent in the course of and arising out of the performance of his contract in the tropics a risk attendant upon his place of travel quite as much as there are other recognized risks arising out of mode of travel generally where travel is required by the contract of employment.

The Workmen’s Compensation Law protects the employee in such a case as this. Under section 21 it must be presumed that this claim comes within the statute. Proof of the accident will give rise to the statutory presumption only where some connection appears between the accident and the employment. (Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459.) Here we have a direct connection between the accident and the employment in that the accident and death resulted directly from a risk to' which the employment exposed the decedent.

I, therefore, dissent and vote to affirm.

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