Claim of Wiarda v. Wiarda

281 A.D. 999, 120 N.Y.S.2d 509, 1953 N.Y. App. Div. LEXIS 4048

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1953
• Status: Published

Opinion

Employer and his insurance carrier appeal from a decision and award by Workmen’s Compensation Board in claimant’s favor. The sole issue is whether the accidental injuries arose out of and in the course of employment. Claimant was in the employ of his father as a chauffeur and companion. In addition to weekly wages he received board and lodging at the home of his father where the accident occurred. In the employment as a companion claimant was on call by his father-employer at any time, twenty-four hours a day. On the evening before the accident claimant and a sister went out to visit another sister. When they returned to the home about 2:00 a.m. the following morning, the father was still up. At the latter’s request claimant conversed with him until about 4:00 a.m. After the conversation claimant proceeded upstairs to go to bed, but returned to speak to his sister. Reascending, he slipped near the top of the stairs, fell to the bottom landing and sustained the injuries for which the award has been made. Appellants urge that, when the conversation with the father was completed, claimant reverted to the status of a member of the family and there was no continuity of employment. He was required to live on the premises. His hours of employment were not limited in number. It cannot be said that the act of returning downstairs after the conclusion of the conversation with the father was a personal act entirely disassociated from the employment as claimant was still subject to call at any time thereafter. The evidence sustains the finding of the board. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Brewster, Bergan, Coon and Imrie, JJ.