Claim of Gaurin v. Bagley & Sewall Co. 272 A.D.2d 988

Appeal from an award for death benefits to a widow and four minor children. Decedent, with three or more associates, was piling lumber adjacent to the Black River at Watertown, N. Y. An ancient and dilapidated wagon or buggy stood near the bank of the river. The course of the river was through a gorge some forty feet deep. Decedent suggested that as a prank the wagon be pushed over the bank that the splash might be heard. While thus engaged his clothing became entangled in the wagon and he was thrown into the river and drowned. The judicial concept of acts which are within the scope of employment has so changed between 1919 (Matter of Be Salvio v. Menihan Co., 225 N. Y. 123) and 1946 (Matter of Industrial Comr. [Ciguin]; v. McCarthy, 295 N. Y. 443) that this seeming divergence from the line of duty may come within the scope of the compensation law. Award affirmed, with costs to the Workmen’s Compensation Board. Hill, P. J., Heffeman, Brewster and Russell, JJ., concur; Foster, J., dissents.