Opinion
May 4, 1949.
Appeal from Workmen's Compensation Board.
Decedent's death was caused by poisoning as a result of his having drunk from a whiskey bottle, labeled whiskey, but which contained a solution of carbon tetrachloride, a poison. The occurrence took place in the "maintenance room" of the employer's plant during decedent's working hours. While decedent's place of work, as a trucker, was in "department 27", it adjoined the maintenance room and evidence supports the finding that by being present there on the occasion in question he did not separate from his employment. The time of the occasion was Saturday, 4:00 P.M., on December 30, 1944. Under the circumstances shown the open view presence of the whiskey bottle bearing its original label, but filled with a poisonous solution, gave rise to a risk and danger, and this had been brought about by authorized and other incidental and not unauthorized conduct of other employees. It follows that the evidence supports the finding that decedent in the course of his employment encountered a risk which arose out of it. In the conflict of evidence as to the conduct of decedent and his fellow employees which precipitated the fatal episode, there is evidence which supports the finding that it was caused by his having been made the "butt of a joke" played by his fellow employees and this justifies the decision that his death was due to injuries from an accident which arose out of and in the course of his employment. ( Matter of Leonbruno v. Champlain Silk Mills, 229 N.Y. 470; Matter of Industrial Comm. [ Siguin] v. McCarthy, 295 N.Y. 443.) We think the case here finds support within the doctrine stated by both of the cited cases. Because of the time and occasion — near the end of the workday in a holiday period — the current spirit of festivity was a natural condition the influence of which was bound to pervade the factory life. The immediate circumstances, as found, which induced decedent to drink from the whiskey bottle was an incident to his "risk of injury from the careless acts of those about him", and which risk is "not measured by the tendency of such acts to serve the master's business." ( Matter of Leonbruno v. Champlain Silk Mills, supra, pp. 471-472, 473.) As to the question whether the acts and intentions of decedent in mistakenly drinking the poison separated the accident from his employment, insofar as that is not answered in claimant's favor by the Leonbruno case ( supra), the award finds support in the Siguin case ( supra). This, because of evidence which supports the finding that "general drinking throughout the * * * plant * * * due to the approaching New Year holiday * * * was customary at that time of the year." Decision and awards affirmed, with costs to the Workmen's Compensation Board.
Regardless of any preholiday drinking in the plant, the fact remains that the death did not result from any drinking party. Assuming that deceased was the butt of a practical joke, there is not one scintilla of evidence to the effect that any such horseplay had ever been engaged in before, much less that it was known to the employer. It cannot be said, therefore, that the accident arose out of and in the course of his employment. ( Matter of Gaurin v. Bagley Sewall Co., 298 N.Y. 511.) I dissent and vote to reverse the award.