
    In the Matter of the Claim of Barney Kaplan, Respondent, v. Zodiac Watch Company et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 25, 1967;
    decided November 29, 1967.
    
      
      F. Walter Bliss for appellants.
    The finding that claimant sustained a causally related injury to his back arising out of and in the course of his employment is not sustained by the evidence. (Matter of Davidson v. Pansy Waist Co., 211 App. Div. 823, 240 N. Y. 584; Matter of Sexton v. Public Serv. Comm., 180 App. Div. 111; Matter of Pisko v. Mintz, 236 App. Div. 770, 262 N. Y. 176; Matter of Davis v. Newsweek Mag., 279 App. Div. 502, 305 N. Y. 20; Matter of Friedwald v. New York State Ins. Dept., 17 A D 2d 670; Matter of Orpin v. Brother & Co., 15 A D 2d 282; Matter of Seaman v. Hewlett Fire Dept., 8 A D 2d 573; Matter of Schreiber v. Revlon Prods. Corp., 5 A D 2d 207.)
    
      Louis J. Lefkowitz, Attorney-General (Morris N. Lissauer, Ruth Kessler Toch and Daniel Polansky of counsel), for Workmen’s Compensation Board, respondent.
    Substantial evidence supported the determination that claimant was engaged in reasonable activity when he fell and injured his back and that the injury sustained at that time constituted an accident which arose out of and in the course of his employment. (Matter of Fleer v. Glens Falls Ins. Co., 16 A D 2d 186; Matter of Block v. Camp Shows, 272 App. Div. 980; Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597; Matter of Daly v. State Ins. Fund, 284 App. Div. 174, 307 N. Y. 942; Matter of Schneider v. United Whelan Drug Stores, 284 App. Div. 1072; Matter of Miller v. Bartlett Tree Expert Co., 3 A D 2d 777, 3 N Y 2d 654; Matter of Toro v. 1700 First Ave. Corp., 16 A D 2d 852, 12 N Y 2d 1001; Matter of Davidson v. Pansy Waist Co., 240 N. Y. 584; Matter of Davis v. Newsweek Mag., 305 N. Y. 20; Matter of Friedwald v. New York State Ins. Dept. 17 A D 2d 670; Matter of Orpin v. Brother & Co., 15 A D 2d 282, 12 N Y 2d 749; Matter of Seaman v. Hewlett Fire Dept., 8 A D 2d 573; Matter of Dearing v. Union Free School, Tonawanda, 297 N. Y. 886; Matter of Behan v. County of Onondaga, 26 A D 2d 609, 18 N Y 2d 579; Matter of Martin v. Plaut, 267 App. Div. 929, 293 N. Y. 617; Matter of Underhill v. Keener, 233 App. Div. 779, 258 N. Y. 543; Bing v. Thunig, 2 N Y 2d 656.)
    
      Abraham Markhof for Barney Kaplan, respondent.
   Burke, J.

The sole issue before us on this appeal is whether claimant, who has already received disability insurance benefits, is also entitled to workmen’s compensation benefits on the ground that his injury arose out of as well as in the course of his employment.

The Appellate Division, in affirming the award of compensation to claimant by the Workmen’s Compensation Board, held that the board was warranted in finding as a question of fact that claimant’s injury was work connected, but where, as here, the facts are undisputed, only a question of law is presented (Matter of Martin v. Plant, 293 N. Y. 617, 618).

Claimant, employed as a traveling salesman, was in the course of his employment at a motel in Chicago when this accident occurred. He was due in Duluth, Minnesota, approximately 550 miles distant, two days later. The accident occurred at 8:30 in the morning, when, as claimant describes it, he was rushing to complete dressing so that he could begin his drive to Duluth before anticipated heavy traffic. In putting on his trousers his right leg got tangled in the trouser leg and he fell over backwards, suffering back injuries for which he now seeks compensation.

It is well settled that for compensation purposes an injury suffered by an employee while out of town on the business of his employer may be ‘ ‘ work connected ’ ’ even where the employee at the time of the accident was not actively engaged in the duties of his employment. Thus, we have upheld awards where the employee slipped in a bathtub (Matter of Miller v. Bartlett Tree Expert Co., 3 N Y 2d 654); was injured by a hairbrush bristle entering his eye when a train on which he was riding jolted (Matter of Lief v. Walser & Son, 272 N. Y. 542), or was subjected to some hazard peculiar to the place or region to which his employment necessitated he travel (Matter of Lepow v. Lepow Knitting Mills, 288 N. Y. 377 [region infested with deadly insects]; Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N. Y. 461 [claimant killed by unidentified Arab in military uniform in Israel]). Similarly, awards have been allowed in certain cases where injured employees were required to live at their place of employment. For example, in Matter of Underhill v. Keener (258 N. Y. 543) we upheld an award made to a hotel cook, resident on the premises, who fell down a stairway on her way to the bathroom after she had finished her work and retired to her room for the night. (See, also, Matter of Behan v. County of Onondaga, 26 A D 2d 609, mot. for Iv. to opp. den. 18 N Y 2d 579.) In all such cases, however, the claimant’s injury was due, at least in part, to an environmental factor which might reasonably be viewed as having some causal connection with the accident suffered by the employee who was conducting himself in a reasonable manner. (Compare Matter of Orpin v. Brother & Co., 15 A D 2d 282, affd. 12 N Y 2d 749, where claimant’s death by drowning in a hotel bathtub had been found to be due to his own negligence.)

In our view a line must be drawn at this point. Where an accident is attributable solely to the personal acts of the claimant, and cannot be attributed in any way to the environment into which the employee has been brought by his employment, the. provision of compensation for resulting injury or death hardly seems to come within the intent or purpose of the law. (See 1 Larson, Workmen’s Compensation Law, .§ 25.22.) As a matter of law such injury or death ought to be held noncompensable.

The cases involving household employees are of no help to claimant. With respect to such employees we have allowed a special exception, as Judge Thacher expressly recognized in Matter of Martin v. Plant (supra). There this court indicated that virtually any injury, no matter how personal the circumstance giving rise to the risk of such injury, would be compensable if suffered by a household employee. Such is the nature of domestic employment that this all embracive protection of the employee seems called for, but we are not inclined to extend such protection to other classes of employees whose activities and way of life are not so tightly circumscribed by the circumstances of their employment.

In this case the room which claimant occupied in no way contributed to the accident. The sole cause of the accident was claimant’s loss of balance while putting on his pants. The very same sort of accident could have as easily occurred at his home or at any other place. We do not see how this accident can reasonably be termed “work connected.”

Accordingly, the order appealed from should be reversed, without costs.

Bergan, J.

(dissenting). The rule that “ personal acts ” of an employee which otherwise fall within the range of employment are not compensable has not provided a satisfactory basis for meeting the statutory test whether an injury arises ‘ out of and in the course of employment ” (Workmen’s Compensation Law, § 2, subd. 7). And it has never been applied consistently.

In Matter of Lewis v. Knappen Tippetts Abbett Eng. Co. (304 N. Y. 461) it was held that when an employee was assigned to a foreign country to work, his recreational activities — there a sightseeing trip — fell Avithin the scope of employment. A similar decision was made in Matter of Scott v. U. S. O. Camp Shows (298 N. Y. 896) Avhere claimant, assigned to work in a foreign country, was returning to her place of work from a holiday in another foreign country when she was injured in an automobile accident (see, also, Matter of Lyons v. U. S. O. Camp Shows, 298 N. Y. 897).

In Matter of Daly v. State Ins. Fund (284 App. Div. 174, mot. for iv. to opp. den. 307 N. Y. 942), decedent, Avorking at a distance from home, Avas killed when taking an automobile ride at night to get some air. If these things Avere not “ personal acts ’ ’, it is not easy to suggest AAdiat Avould be.

The tendency of the cases has been to treat an employee working far from home as being in a very similar position to an employee working and living on the employer’s premises. That an injury has been due to ‘ personal acts ’ ’ has not been regarded as a ground for denial of compensation in such situations. A very recent example is Matter of Behan v. County of Onondaga (26 A D 2d 609, mot. for iv. to opp. den. 18 N Y 2d 579), Avhere an employee was injured when she slipped coming out of the bathroom and an award Avas upheld.

When an employer sends a worker far from home and thus removes him from his normal environment, the risk of injury in personal activity (as for example returning to a hotel from a restaurant after dinner [Matter of Schreiber v. Revlon Prods., 5 A D 2d 207]) should fall on the employment.

It is quite as logical and reasonable to hold this in a case such as the present one, as in the case of a Avorker who lives and works on the premises. In the present case during the time period involved, claimant lived and worked where the employer sent him. That was the ‘ ‘ premises ’ ’. And, since claimant perforce had to sleep and then had to dress to continue a journey in the employment, an injury in the course of doing1 this ought to he included within the scope of coverage.

Had claimant fallen while taking off an overcoat in the employer’s cloakroom after coming in from cold weather, it could scarcely he thought his injury was not in the course of employment. What happened here was certainly less of a ‘ ‘ personal act ’ ’ than the sightseeing trip considered within the scope of employment in Knappen-Tippetts {supra).

The order should be affirmed.

Judges Van Voorhis, Scileppi and Breitel concur with Judge Burke; Judge Bergan dissents and votes to affirm in an opinion in which Chief Judge Fuld and Judge Keating concur.

Order reversed.  