Claim of Davis v. Newsweek Magazine

Froessel, J.

Claimant is the widow of one Harry Davis, hereinafter called decedent. They were married on October 2, 1948, and had no children. On May 16, 1949, decedent, while at a vacation resort in Biloxi, Mississippi, came to his death as *23 the result of diving in shallow water from the end of a long pier. His claimant widow was awarded compensation below. She remarried on December 31,1949.

The sole issue presented by this appeal is whether or not the accidental death arose out of and in the course of his employment. Decedent was science editor of Newsweek, with offices in New York City. Besides working at his desk, he would visit places of scientific interest and attend meetings, preparatory to writing articles for his employer, which he sometimes did at home. His employment called for thirty-five hours of work per week.

In the spring of 1949, he and claimant contemplated a vacation trip west — they “had never been around the United States ” — during which he planned as part of their vacation to visit places of scientific interest throughout the country by automobile. He then proposed to his employer that his allotted vacation of four weeks be extended in order that he might visit additional scientific developments as background material for use in his work. He was granted an additional four weeks, and thus the entire eight weeks were combined as a vacation and business trip to the west coast. In addition to paying his salary, his employer agreed to pay the nominal amount of $200 toward the expenses of the trip. It was contemplated that decedent might send in articles for publication during the course of the trip, although apparently not required to do so. A tentative itinerary was left with the employer so that decedent might be contacted for either personal or business reasons should occasion arise.

In the course of their trip, claimant and decedent visited the atomic energy project at Oak Bidge, Tennessee, after which they started on their way to San Antonio, Texas, to visit the Southern Besearch Institute. On the second day of that journey, they stopped at Biloxi, Mississippi, a “gulf port vacation spot”, not scheduled on his itinerary and for which they had no reservations. No scientific investigation had been planned there or elsewhere in that State. Upon arriving at the hotel, decedent, being hot and tired, prepared to take a swim. Instead of entering the water from the beach, he chose to engage in a hazardous act — to dive from a pier in unfamiliar water, as aforesaid— as a result of which he suffered injuries from which he died,

*24 The Appellate Division, in sustaining the board’s determination that decedent was in the regular course of his employment when he was drowned, and that the accidental injuries and death arose out of and in course of his employment, stated that said employment, or a phase of it, was that of a tourist, which exposed bim to the risks incident to that status, and that his attempt to get relief from his fatigue following a long journey in hot weather might be regarded as a reasonable act in the course of his employment, since, had it been successful, it would have been of some benefit to his employer, in that decedent might more promptly have sent a better article.

We find ourselves unable to concur in that reasoning. To be compensable, an injury must arise out of the employment as well as in the course thereof (Matter of Wilson v. General Motors Corp., 298 N. Y. 468, 472; Matter of Clark v. Voorhees, 231 N. Y. 14, 17). Since decedent was traveling between places of scientific interest when he was killed, it may in a broad sense be said to have been in the course of his employment. His travels, however, though finally twofold in purpose, were predominantly in furtherance of the personally motivated vacation trip, except for which he would not have gone (Matter of Marks v. Gray, 251 N. Y. 90). His status as a tourist was personal and unrelated to his employment, for he was a science editor, not a travel writer; risks peculiar to tourist activity could not fairly be said to arise out of his employment. Upon the facts here shown, only risks arising out of his inspections of scientific sites and travel thereto could possibly give rise to compensable injuries.

Neither was the death compensable simply because the employer might derive some incidental benefit from decedent’s attempt to refresh himself in this manner. A slight and momentary deviation from the work routine for an accustomed and accepted purpose (Matter of Montgomery v. Bartholomay Milk Co., 260 N. Y. 664; Matter of McLellan v. International Paper Co., 269 App. Div. 800, motion for leave to appeal dismissed 294 N. Y. 967) must be distinguished from purely personal activity, however much such activity may incidentally benefit the employer (Matter of Marks v. Gray, supra; Matter of Chetney v. Manning Co., 273 N. Y. 82; Tallon v. Interborough R. T. Co., 232 N. Y. 410; Matter of Kowalek v, New York Cons, R. R. Co., 229 N. Y. *25 489; 1 Larson’s Workmen’s Compensation Law [1952], § 15). If the factory worker who is injured, on his way to work may not be compensated therefor, how could we justify the award herein on the tenuous basis that decedent’s swim may have been of “some benefit” to his employer in enabling him to write a better article f If that is to be deemed a sufficient nexus between the employment and the injury, then one may say that in the ordinary effort of living a man continually makes himself ready for his employer’s service and thus should be compensated for whatever injury befalls him.

The risks inherent in travel may, of course, arise out of the employment where such travel is a necessary incident thereof (Matter of Landrum v. Congress Motor Corp., 301 N. Y. 544; Matter of Kleid v. Carr Bros., 300 N. Y. 270; Matter of Lief v. Walzer & Son, 272 N. Y. 542; Matter of Theyken v. Diplomat Products, 268 N. Y. 658; Matter of Crowell v. American Fruit Growers, 253 N. Y. 543; Matter of Gibbs v. Macy & Co., 242 N. Y. 551; Matter of Harby v. Marwell Bros., 235 N. Y. 504; Matter of Katz v. Kadans & Co., 232 N. Y. 420). Moreover, when the travel is essentially part of the employment, the risk remains an incident thereof even though the employee may have turned his steps toward a place of refreshment, for the employment continues until the necessary travel is concluded (Matter of Laubeck v. Toc’s Products Co., 286 N. Y. 577). When such travel is performed in foreign lands, where strange customs or abnormal conditions prevail, the risk involved in traveling from a place of reasonable personal diversion to the appointed place for service may also come within the coverage afforded by the employer’s compensation insurance (Matter of Scott v. U. S. O. Camp Shows, 298 N. Y. 896; Matter of Lyons v. U. S. O. Camp Shows, 298 N. Y. 897; Matter of Tushinsky v. National Broadcasting Co., 265 App. Div. 301, appeal dismissed 292 N. Y. 595).

Such coverage has also been considered to include risks arising out of the inherent nature of the place to which the employment takes the employee, without regard to the particular circumstances in which the injury occurred. Thus awards have been upheld where the employee was bitten by a disease-bearing insect indigenous to a tropical country (Matter of Lepow v. Lepow *26 Knitting Mills, 288 N. Y. 377), or has been struck by a bullet fired during a skirmish in a country at war (Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N. Y. 461). Similarly, one whose employment takes him to a hotel may recover compensation for injuries sustained in a conflagration (Matter of Blake v. Grand Union Co., 277 App. Div. 914, motion for leave to appeal denied 301 N. Y. 813; Matter of Commissioner of Taxation & Finance [Buck] v. Katherine Gibbs School, 277 App. Div. 126, motion for leave to appeal denied 301 N. Y. 813), or one required to reside in certain premises may recover for injuries resulting from fire or other condition rendering the premises inherently dangerous (Matter of Finnegan v. Biehn, 276 N. Y. 50; Matter of Giliotti v. Hoffman Catering Co., 246 N. Y. 279; Matter of Underhill v. Keener, 258 N. Y. 543). So where one whose work necessarily takes him outdoors in all kinds of weather is exposed to the risk of lightning (Matter of Many v. Bradford, 266 N. Y. 558) or heat prostration (Matter of Hughes v. St. Patrick’s Cathedral, 245 N. Y. 201). It is also true that recreational or other normally personal activity may sometimes become so intimately related to the employment as to create risks incidental thereto (Matter of Dodge v. Wm. J. Keller, Inc., 304 N. Y. 792; Matter of Brown v. United Services for Air, 298 N. Y. 901; Matter of Bollard v. Engel, 278 N. Y. 463).

These authorities must be read, however, in the light of the basic principle that there can be no compensation for injuries arising out of purely personal activities not directly related to the employment. In other words, each case depends upon its facts (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37). As already noted, the risk of travel may be compensable even though it is travel to a place of rest or refreshment, so long as travel is part of the work routine. But an accident happening at such place, resulting solely from the personal pursuits therein undertaken, is not compensable (Matter of Goldman v. John Hancock Mut. Life Ins. Co., 276 N. Y. 582; Matter of Johnson v. Smith, 263 N. Y. 10; Matter of Davidson v. Pansy Waist Co., 240 N. Y. 584). Neither is an injury resulting from recreational activity compensable, where such activity is carried on on the employee’s own time and off the employer’s premises, though *27 the employer has sanctioned and given financial assistance to such activity (Matter of Wilson v. General Motors Corp., supra).

W'e think it is quite clear that decedent, in engaging in the hazardous act of diving off the pier in strange waters for a swim, was indulging in a personal recreational activity in nowise related to his employment, except as all such activity, in refreshing mind and body, better fits the individual for his daily labors. His death was not “work-connected”, it did not occur in such a way as to bring it within any of the categories above mentioned, in which awards have been allowed; it did not, therefore, arise “ out of and in the course of the employment ” and is not compensable.

There is one other group of cases in which compensation was allowed of which note may be taken, not because they are apposite but because they may appear to be so upon a cursory reading. Some of these appear to pertain to travel or street risks, others to recreational activity during travel (Matter of Crippen v. Press Co., 254 N. Y. 535 [employer furnished hotel room during a strike and instructed claimant to stay in vicinity — assaulted, presumably by striker]; Matter of Madura v. City of New York, 238 N. Y. 214 [claimant ordered to wait under tree during storm— struck by lightning]; Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597, motion for leave to appeal denied 302 N. Y. 950 [bus driver’s duties required that he wait for fishing party — injured on boat while following custom of going out with fishing party]; Matter of De Santis v. U. S. O. Camp Shows, 275 App. Div. 880, motion for leave to appeal denied 299 N. Y. 798 [musician required to wait in San Francisco until called to ship for embarkation — struck by automobile while crossing street]; Matter of Block v. Camp Shows, 272 App. Div. 980, motion for leave to appeal denied 297 N. Y. 1032 [theatrical manager required to wait in Monroe, Louisiana, for transportation back to air base — injured in fall down steps while going into barbershop for haircut]; Matter of Gabunas v. Pan American Airways, 279 App. Div. 697 [air line stewardess required to wait in Lisbon during enforced layover of assigned aircraft — injured while cycling] ). Careful examination of these cases reveals that there is one operative factor common to all. In each and every instance the employee had been directed, as *28 part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time. In those circumstances, the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment. In the Be Santis and Gabunas cases (supra), the area in which the employee was required to wait embraced a city, but it was so delineated by the employer, and consequently those cases do not in any way represent an extension of or departure from the rule. The operative factor present in those cases is not present in the case at bar.

For the reasons above set forth, the order of the Appellate Division should be reversed, and the award of the Workmen’s Compensation Board annulled, with costs in this court and in the Appellate Division, and the claim dismissed.