Martin v. Metropolitan Life Insurance

Smith, J.:

The action is for negligence. The plaintiff was employed by the defendant in its tracing department on the eleventh floor of its building, No. 1 Madison avenue, New York city. This is a large building occupying the entire block, owned by defendant, and occupied both by the defendant and by tenants. Elevator service is maintained in the building for the use of employees and others, and it was in connection with the use of one of these elevators that the plaintiff was injured.

It seems to have been assumed upon the trial that the defendant was included among the employers who were contemplated by the Workmen’s Compensation Law, and that it employed more than four people, who were thus engaged in a hazardous employment within the protection of the act, and defendant thus employing more than four people in a hazardous employment, all of the employees are brought within the protection of the act. (Krinsky v. Ward, 193 App. Div. 557; Matter of Europe v. Addison Amusements, 231 N. Y. 105.)

The main question argued is as to whether this injury happened while in the defendant’s employ and arising out of such employment. The. work of the plaintiff was upon the eleventh floor. Upon the twelfth floor there was a luncheon furnished free to all the employees. There was no elevator service between the eleventh and twelfth floors. The employees were given thirty-five minutes to procure their luncheon, either within the building or without, or, for such use as they might make of the time if they did not care to procure luncheon. Upon the day in. question the plaintiff went from the eleventh to the twelfth floor, procured her luncheon, came back to the eleventh floor, went to her desk and got her pocketbook and started down the elevator. The exact purpose for which she came down perhaps is not clear. There is some evidence that her purpose was a personal one, in order to get a birthday present for her sister, whose birthday was the succeeding day. This, however, I do not deem to be very material, in view of the construction which I have placed upon the statute in question. While the statute requires that in order to come within the act the injury must arise out of and in the course of the employment, it necessarily covers any act done as incidental to that employment. ..(See § 10; Id. § 3, subd. 7, as amd. by Laws of 1917, chap. 705.) In this case with the service performed upon the eleventh floor, the defendant was required, incident to the employment, to furnish elevator service which would make a safe entrance and a safe exit to her place of employment. The fact that this elevator was used by other people and by tenants, or the public, does 'not matter, as long as it is furnished by the defendant, and as long as it is necessary to the performance of the plaintiff’s work. The plaintiff was coming down the elevator and by reason of the negligence of the operator of the elevator, as she was about to get out, the elevator started up and caused her injuries, for1 which she complains. It cannot matter if the plaintiff was coming from the building for an individual or personal purpose; when she leaves the building at night and goes to her home that is for a personal purpose. The defendant is bound to furnish a safe entrance and a safe exit at any time that her service is not required. In fact, if the employment be not deemed to extend over the noon recess, the defendant could require the plaintiff to leave the building. That safe entrance and safe exit which the defendant is required to furnish in addition to this employment is a safe exit at any time for any purpose when the plaintiff’s time is not demanded under her contract in the defendant’s building. This case is clearly distinguishable from Pierson v. Interborough Rapid Transit Co. (184 App. Div. 678; affd., 227 N. Y. 666), because that was not a necessary exit, but one which Pierson was at liberty to choose or not, as he might elect. It was there held that in his choice of the use of the elevated railroad for a personal purpose he was not continuing in the employment. The same distinction exists in Matter of Kowalek v. New York Consolidated R. R. Co. (229 N. Y. 489). There is no case holding that where by reason of the necessities of the situation the defendant is required to furnish access and exit, that such access and exit are not necessarily incidental to the work performed, and an injury occurring in connection therewith is not an injury which is covered by the Workmen’s Compensation Law. The case of Ross v. John Hancock Mutual Life Ins. Co. (222 Mass. 560) is distinguishable because the elevator was not there being used as an exit from the building, but was being used for the purpose of going' from one floor to another in the building to accomplish an individual purpose", and not in the business of the defendant. That case would seem to be in harmony with Matter of DiSalvio v. Menihan Co., decided by our Court of Appeals (225 N. Y. 123).

In the Kowalek Case (229 N. Y. 489) the rule is stated: “It is a general rule that if an employee is injured on the premises of the employer in going, with reasonable dispatch and method, to or from actual performance of the specific duties of the employment by a way provided by the employer or reasonably used by the employee, compensation must be awarded. The going to and from the actual work and the risk involved in it are reasonably incidental to the employment.”

In the Pierson Case (184 App. Div. 678; affd., 227 N. Y. 666), upon which the plaintiff relies, Mr. Justice Shearn said: “ Furthermore, it seems right that a motorman or guard who has been taken to the end of the line and is compelled to lay off for two hours or so before the next run should be protected by the act in the case of an injury sustained while in the precincts of the company awaiting his next tour of duty. There would, of course, be no question but that a motorman who had thus gone to the end of his line and who was provided a waiting place a few stations removed and who rode on the train to that waiting place and was injured on the way would be said to have sustained an injury growing out of and in the course of his employment.”

In White v. Slattery Co. (236 Mass. 28) the employee was going out of the building to get some theatre tickets, using an elevator provided for the employees. The opinion of the court in part reads: “The only reasonable inference of which these facts and the evidence are susceptible is that the injury to the plaintiff arose out of and in the course of her employment. When she entered the store on her way to work and pursued the proper course to the place of her labors, while in the performance of her duties as an employee and until she left the store by the ordinary means of exit, she was engaged in the pursuit of her employment, entitled to the protection and subject to the limitations of the Workmen’s Compensation Act.” And further: “ The plaintiff was leaving the store of her employer with the purpose of doing an errand on her own account having no relation to her employment. That fact is of no consequence under these circumstances. She was doing it on her own time and not on her employer’s time. She was in this particular in the same condition she would have been in leaving the store at the" end of her labor for the day. She had a right under the terms of her employment to go out at the lunch hour on her own affairs. She was as much within the scope of her employment as were any of the employees in.the cases cited where they have been held within the protection of the act.” (See Latter’s Case, 130 N. E. Rep. [Mass.] 637.)

It seems to be conceded that if the plaintiff had been going to her work and had been injured in this elevator, she would come within the Workmen’s Compensation Law and I do not understand the plaintiff’s counsel to contend if she were leaving her employment at the end of the day that she would not be within the Workmen’s Compensation Law. The distinction upon which he insists is that she was leaving at this particular time on a personal errand. But within the White case in Massachusetts, _ that distinction is held not to alter the rule of law, and this holding is well supported by sound reason, because the employer not only contracted to furnish her a safe entrance, but a safe exit whenever she had occasion, or had the right to leave the premises, whether for further work on behalf of her employer or for her own purposes.

In my judgment the plaintiff is covered by the Workmen’s Compensation Law and cannot recover in an action for negligence.

The judgment is, therefore, reversed, with costs, and the complaint dismissed, with costs.

Clarke, P. J., Laughlin and Merrell, JJ., concur; Page, J., dissents.