The claimant was not supplied with or required to use any special instrumentality in completing his assigned duties. The claimant testified that on several occasions prior to his accident he brought a .22 caliber pistol to work. The defendant did not acquiesce in this activity, but instead, affirmatively prohibited the claimant from bringing a gun to work in the future. Claimant cites Merchant v. Pinkerton's, Inc., to support his claim for compensability. In Merchant, the New York Court of Appeals awarded compensation to the spouse of a security guard who was killed when the gun he carried, in violation of company policy, accidentally discharged.
Merchant is, however, distinguishable from the facts of the present case.
In Merchant, the decedent was employed to perform the duties of a security guard. It is not untenable for a security guard to bring a weapon with him when the scope of his employment involves securing the building and premises from intruders. The court awarded compensation because the regulation prohibiting the possession of a weapon went the manner not the scope of decedent's employment. In the case at bar, the claimant was not hired as a security guard. Claimant's injury is not incidental to his employment as a boiler operator.