Opinion
December 29, 1961
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board finding that claimant's accident and resulting injuries arose out of and in the course of his employment. Claimant was employed by respondent employer as a glass washer six days a week from 6:00 P.M. to 2:00 A.M. and was not subject to call outside of these hours. He received $4 per day plus room and board valued at $7.75 per week as compensation for his services. On October 1 claimant reported to work but was told by his superior who considered him inebriated that his services were not desired and that he should report the next day. He returned to his quarters in the basement of the staff house and after sleeping for two hours went to get cigarettes. On the way back to his room and while on the employer's premises he slipped on a melon rind and broke his wrist. The sole question on appeal is whether since claimant received his board and lodging at staff quarters specifically maintained by the employer for such purposes, as partial compensation for his services, any injury resulting from normal activities on the employer's premises would be considered to arise out of the employment relationship and thus be compensable. Appellants urge that the test is not whether claimant was upon the premises as part of his compensation but whether he was required to live on the premises or was living there for the convenience of the employer. It is clear that if the employee is required to live on the premises either by virtue of the contract of employment or by reason of the nature of the employment any injury resulting from normal activities on the premises is compensable. On the other hand if the employee is on the premises solely out of the kindness of the employer injuries are not compensable ( Matter of Groff v. Uzzilia, 1 A.D.2d 273, affd. 2 N.Y.2d 840; Matter of Medina v. Shore Road Hosp., 4 A.D.2d 974). We find Matter of Walker v. Narolewski ( 6 A.D.2d 735, affd. 7 N.Y.2d 835) controlling in this factual situation. In Walker ( supra) the court held that despite the fact that claimant was not subject to call, his residency on the employer's premises was for the employer's benefit as well as his own since his hours were long and room and board were furnished as part of his pay. Similarly in the instant case, since claimant received room and board as part pay under the terms of the employment contract and lived in staff quarters provided by the employer explicitly for its employees, claimant's residency as a practical matter was required ( Matter of Madigan v. United Hosp., 274 App. Div. 1077, motion for leave to appeal denied 299 N.Y. 799). Decision and award affirmed, with costs to the Workmen's Compensation Board. Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ., concur.