
    No. 104
    STATE ex CRABBE v. BARBAS et
    Hamilton Common Pleas
    Decided 1926
    1283. WORKMEN’S COMPENSATION — ;A waitress, entitled to food, who enters the kitchen and lights range after working hours against positive instructions of employer cannot recover for injuries received therefrom.
    Attorneys — C. C. Crabbe, Atty. Gen., Columbus, and C. W. Baker, Asst.. Atty. Gen., Cincinnati, for State ex; Joseph B. Derbes, Cincinnati, for Barbas et.
   ROETTINGER, J.

This action came into the Hamilton Common Pleas upon error proceedings from the Cincinnati Municipal Court, and is brought by the Attorney General on behalf of Alberta Osborne against Nick Barbas and Andrew Mar-ko, a partnership, to recover for alleged injuries claimed to have been received in the course of employment. The partnership although employing njore than seven people were not subscribers to the state insurance fund, so the action was brought by the Attorney General.

The duty of Osborne was that of waitress and included no cooking, for which she received $15 and board. On the day of the accident she went into the kitchen after the dinner hour to heat a piece of pie for herself. At this time the gas in the range was extinguished and the girl was told specifically to stay out of the kitchen except for the sole purpose of getting water. On the day of the accident the cook told her to stay away from the range but ,Lin spite of his orders she attempted to light Hit. An explosion followed, and she was in- * 'jured. Upon these statements of fact the «¡Court held:

1. Both sides cite 13 OA. 262 and have re-jlied thereon, paragraph 2 of the syllabus being exactly in point.

2. “Where a workman does such things as are usually and reasonably incidental to the work of the employee, including the taking of refreshment, rest and smoke which are not forbidden by the employer, etc. - - - -”

3. The case at bar is decided upon the words “and is not forbidden”; and the girl was not only’ generally forbidden but was expressly forbidden by an agent of her employer on the day of the injury.

4. It is clear that the girl had the right to consume the food, but the lighting of the stove, which was the proximate cause of her injury, being forbidden, was not incidental to her regular employment.

Judgment affirmed.  