Opinion
279 A.D. 697 108 N.Y.S.2d 372 In the Matter of the Claim of ELEANOR L. GABUNAS, Respondent, v. PAN AMERICAN AIRWAYS, INC., et al., Appellants. WORKMEN'S COMPENSATION BOARD, Respondent. Supreme Court of New York, Third Department. November 28, 1951
Appeal from a decision and award of compensation made by the Workmen's Compensation Board in claimant's favor and to reimburse her employer for its advance payment. The insurance carrier contends that claimant's injury did not arise out of and in the course of her employment which was as a flight stewardess in the employer's air-line operations. During an enforced layover in Lisbon, Portugal, of the plane to which claimant was assigned, she was paid her regular wages and maintained at a hotel by her employer. Other than keeping fit and in readiness for her employer's call to active duty, she had free choice as to how her indefinite period of layover time was spent. It was during such period that she was injured while riding a bicycle which she had rented on her own account, no such means of recreation having been provided by her employer at that place of stopover. The evidence supports the board's finding that claimant's indulgence in the recreation which brought her injury was within the general frame of the duties of her employment and was so regarded by her employer. No part of her brief stay in Lisbon, under the circumstances shown, can be said, as a matter of law, to be separable from the course of her employment. ( Matter of Tushinsky v. National Broadcasting Co., 265 A.D. 301, appeal dismissed 292 N.Y. 595; Matter of Block v. Camp Shows, Inc., 272 A.D. 980, motion for leave to appeal denied 297 N.Y. 1032.) Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.
Present--Foster, P. J., Heffernan, Brewster, Bergan and Coon, JJ.