Claim of De Clemente v. New York State Railways

246 A.D. 649

Opinion

Appeal by employer and insurance carrier from award to claimant on account of disability. Claimant and a fellow workman named Cassano had arguments with another workman named Bonsanti concerning Cassano’s misconduct with Bonsanti’s wife. After such an argument Bonsanti left the job, went home and got his shot gun and shot and killed Cassano and then shot and wounded the claimant De Clemente. All of the evidence including the direct testimony of Bonsanti is to the effect that he shot Cassano and De Clemente because of this trouble about Bonsanti’s wife and that the shooting had nothing at all to do with the work on the job. There is no evidence in the record to sustain the finding of the Industrial Board that the injuries sustained by claimant arose out of the employment. Award reversed, with costs to the appellant-carrier against the Industrial Board and claim dismissed. Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ., concur.