Opinion
March 6, 1918.
Clement Lee [ H. Walter Lee of counsel], for the appellants.
Merton E. Lewis, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.
The employer was a manufacturer of malt liquors, which business is classified as hazardous within group 27 of section 2 of the Workmen's Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1917, chap. 705). Charles Spang, the employee, was a collector and while in the performance of his duties as such collector on July 5, 1917, in a saloon away from the plant of his employer he was shot and killed. The shooting was intentional and the purpose thereof was to secure the money which Spang had on his person belonging to his employer.
Under subdivision 4 of section 3 of the Workmen's Compensation Law, as amended by chapter 622 of the Laws of 1916 and chapter 705 of the Laws of 1917, Spang at the time of his death was within the protection of the act. The amendment of 1916 was intended to include an employee "in the service of an employer carrying on a hazardous employment, even though such employee is not actually engaged in a hazardous employment." ( Matter of Dose v. Moehle Lithographic Co., 221 N.Y. 401.) And by the plain language of the statute it is immaterial whether the shooting of Spang occurred at the plant of the employer "or in the course of his employment away from the plant." He was clearly "in the course of his employment" at the time of his injury.
The fact that the death of Spang was intentionally caused does not defeat the claim. He was killed as an incident of his employment because he had in his possession money belonging to his employer, which it was the purpose of his slayer to feloniously appropriate. An injury caused deliberately and willfully by a third party may be an "accidental injury" within the meaning of the act from the viewpoint of the employer and employee. (Workmen's Compensation Law, § 29, as amd. by Laws of 1917, chap. 705; Hellman v. Manning Sand Paper Co., 176 App. Div. 127; affd., 221 N.Y. 492; Matter of Carbone v. Loft, 219 id. 579; Dietz v. Solomonwitz, 179 App. Div. 560; Yume v. Knickerbocker Portland Cement Co., 3 State Dept. Rep. 353; affd., 169 App. Div. 905; Slane v. Cording Salzman, 11 State Dept. Rep. 631; affd., 179 App. Div. 952; Griffin v. Roberson Son, 176 id. 6; Matter of Heitz v. Ruppert, 218 N.Y. 148.)
The award should be affirmed.
Award unanimously affirmed.