Schlener v. American News Co.

210 A.D. 511, 206 N.Y.S. 561, 1924 N.Y. App. Div. LEXIS 6777

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1924
• Status: Published

Opinions

Cochrane, P. J.:

While claimant was at work wrapping paper bundles for train delivery at five a. m., an intoxicated fellow-servant asked him for the loan of $1. This was refused by claimant and as he kept at his work with his head turned from the fellow-servant the latter cut him with a knife causing a facial disfigurement for which an award of $750 has been made. The fellow-servant, although in the service of the employer, had not been working for eight days, apparently because of his intoxicated condition. The only point raised against the award is that the case is not distinguishable from Matter of Scholtzhauer v. C. & L. Lunch Co. (233 N. Y. 12), where a waitress was shot by a negro fellow-servant who had invited her to go^ut with him one evening and who was angry because of her statement to a third employee “ that she would not go out with a negro.” We think the two cases are not similar. In that case the employment “ brought the two persons together ” but that fact was held to have no “ bearing on the injury.” Here the assault was due to the intoxication of a fellow-employee. In that view of the case it may be said in the language of the opinion in the case cited that the injury was “ directly traceable to and connected with the employment.” It is true that the assailant had not been working for eight days but he was nevertheless continued in the service of the employer and his presence at five o’clock in the morning was evidently because he thought that as an employee he had a right to,be there. The employer in the report of injury describes the assailant as a “ driver.” He was continued in the employment after the assault. Where an employee is assaulted by' an intoxicated fellow-employee and the assault is due to the fact of intoxication it would seem that the occurrence arose “ out of ” as well as “ in the course of ” the employment. It is to be observed that in the Scholtzhauer Case (supra) it was not the refusal of the waitress to accept the invitation of the negro which aroused his anger but her statement to another employee of her reason for such refusal and the repetition of such statement to the negro. That feature of that case was brought out by Mr. Justice Hinman in Rosmuth v. American Radiator Co. (201 App. Div. 207), and in respect thereto he says: “ In that sense she initiated the assault.” Here the claimant did nothing to initiate the assault. On the contrary, it would not have occurred had the assailant not been intoxicated. It was due solely to that fact. It was the work of the claimant which brought him into the presence of this intoxicated person and exposed him to the risk arising from such intoxication. “ He was brought by the conditions of his work ‘ within the zone of special danger.’ ” (Matter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; Matter of Verschleiser v. Stern & Son, Id. 192; Matter of Katz v. Kadans & Co., 232 id. 420.)

The award should be affirmed, with costs to the State Industrial Board.

All concur, except Van Kirk, J., dissenting with an opinion in which McCann, J., concurs.