'Q. Had he been at the bar before that? A. Oh, yes.
'Q. Now, when they came in, the two armed men, what did you do? A. I moved behind the bar as soon as I seen the gun that the man Overton had.
'Q. Now, at the time that B. J. was shot where was he? A. Right in front on the other side of the bar.
'Q. He was on the customers' side of the bar? A. Yes, sitting on a stool.
'Q. How many stools can the bar accommodate? A. Oh, about ten.
'Q. And prior to the time that you say Fisher had started to walk somewhere, was he also on a stool? A. When they came in?
'Q. Yes. A. No, he had just got off the stool and started walking.
'Q. Had Fisher also been on one of the stools alongside of B. J.? A. Yes.
'Q. And we are talking about the stools on the customer side as distinguished from where you were? A. I was there too, and when they came in, Kenny had already started walking down to the bandstand, and when they came in I just walked around behind B. J. and stood at the end of the bar.'
The foregoing testimony stands uncontradicted and seems unequivocally to lead to the conclusion that the two deceased musicians had completed their performance about 1:30 a.m., and were immediately paid off; that they sat around in the restaurant for their own personal purposes instead of immediately leaving their place of employment; and that the murderers came in about 2:00 a.m., and commenced shooting. Clearly, therefore, when they were shot, the deceased were not on the premises in the course of their employment. Their duties had terminated a half hour previously and they had been free to depart.
Under the circumstances, the Court is constrained to conclude that the finding of the Deputy Commissioner that the deceased were shot while they were being paid their wages, is not supported by substantial evidence. Similarly, the conclusion that the injuries were sustained in the course of employment likewise does not seem justified. On the contrary, under the circumstances the Court is of the opinion that the injuries were not sustained in the course of employment. In view of these considerations, there is no liability to pay workmen's compensation in these cases. This view is fully supported by the weight of authority. It is well established that while an employee must have reasonable time within which to leave the employer's premises after his duties are finished for the day, nevertheless, if for his own purposes he tarries for some time after working hours, he is no longer in employment status under the Workmen's Compensation Act and any injury sustained during that period is not compensable. Thus in National Biscuit Co. v. Litzky, 6 Cir., 22 F.2d 939, 56 A.L.R. 853, it was held that injuries sustained by the employee while she lingered on the employer's premises after her work was terminated, in order to have lunch, were not covered by the Workmen's Compensation Act.
In Congdon v. Klett Co., 307 N.Y. 218, 120 N.E.2d 796, the same principle was applied in the case of an employee who had completed his day's duties but remained on the employer's premises in order to take a swim in the employer's pool with the employer's permission. In this instance the hours of work ended at 5:00 p.m., and the injury was sustained about 5:30 p.m.
In Urban v. Topping Brothers, 184 App.Div. 633, 172 N.Y.S. 432, a clerk in a wholesale concern finished his work and went to look for companions with whom he usually went home and who were at that time elsewhere in the employer's premises. While doing so, he was injured. The Court held that at the time of the injury he was no longer engaged in the business of his employment and, consequently, his death, which resulted from the injury, was not compensable under the Workmen's Compensation Act.
In Adams v. Uvalde Asphalt Paving Co., 205 App.Div. 784, 200 N.Y.S. 886, the employee was laid off but remained in the employer's premises to eat lunch. After lunch but before leaving the premises he was injured. It was held that he was not in the course of his employment when he was hurt and that an award under the Workmen's Compensation law could not be sustained.
In Fowler v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 237 S.W.2d 373, the plaintiff was a saleslady in a large department store working only part time. On the day of the accident her work ended at 3:00 p.m. Instead of leaving the store, however, she went to another department to purchase some articles for herself. This activity consumed about fifteen or twenty minutes. Then while she was preparing to leave, she was injured. It was held that there could be no recovery under the Workmen's Compensation Act, because the injury was incurred after the termination of the employment for the day and subsequently to the time that would have been reasonably consumed in leaving the store.
It follows hence that the plaintiffs are entitled to summary judgment. While the plaintiffs have not filed any document entitled a motion or a cross-motion for summary judgment, the Court will treat the plaintiffs' written opposition to the defendants' motion, as a cross-motion. To do otherwise would unduly stress mere technicalities and create futile circumlocution.
The defendants' motion for summary judgment is denied. The plaintiffs' motion for summary judgment is granted.