Claim of McDermott v. S. A. Healy Co.

Appeal by the employer and carrier from an award of disability compensation. Appellants contend that claimant’s accidental injuries did not arise out of and in the course of his employment. No other question is presented by this appeal. The employer was in the construction business and employed claimant as a watchman at a storage shanty on one of its job sites. Claimant’s hours of employment were supposed to terminate at 12 o’clock, midnight. At about 11:20 P.M., claimant’s relief man appeared at the watchman’s shanty, and claimant took his lunch box and apparently started for home. When he had progressed only a short distance and was across the street from the watchman’s shanty, he discovered that he had the keys to the shanty, which were supposed to be in. the possession of the watchman on duty. He started to return to give his relief man the keys and was struck by an automobile. The board has found that the claimant was serving the interest of the employer and that the time interval was so brief that it did not constitute a separation from the employment. It was clearly to the employer’s advantage to have the keys delivered to the relief man, and under the circumstances disclosed by this record it may not be said as a matter of law that claimant had completed his separation from his employment. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present—Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.