Opinion
July 11, 1967
Appeal from a decision which awarded death benefits, appellants asserting that decedent's death from injuries sustained in an automobile accident which occurred while decedent was on his way to work did not arise out of and in the course of the employment. Decedent, a resident of Massachusetts, had been employed as an engineer by the employer, a dredging company, whose office was in Merrick, New York and during the five and one-half month period of his employment had been assigned to dredging jobs in four different areas. At the time of his death the job was on Lake Sagaponack in Southampton, New York. Under the collective bargaining agreement governing the employment, the employer was required to furnish the employees with living facilities on the dredges, supplying lodging and meals for the very advantageous price of $1.25 per day, and it was further agreed that when sleeping quarters and meals were not available on a dredge, as was the case here, the employer would grant each employee thus deprived "an allowance in an amount to be agreed upon between the company and the union", in this case fixed at $10 per week. Accordingly, decedent obtained temporary sleeping quarters in Merrick, where the employer's office was located, there being no accommodations at Lake Sagaponack; and his fatal accident occurred while he was riding in the automobile of a coemployee from his sleeping quarters to his work on the dredge. Appellants' argument for reversal rests largely, if not exclusively, upon Matter of Clark v. Ferguson Co. ( 283 App. Div. 756) in which we affirmed as "being binding on us" the board's factual determination disallowing a claim by the widow of an employee who sustained fatal injuries, on a weekend, while driving his own automobile to his home from his place of employment, some distance away; the board's decision resting upon its finding that an allowance made by the employer to the employee while working away from home was solely a subsistence allowance and not in part for travel. In this case, however, the board's decision is not predicated on the theory of a travel allowance. Granted that the payment to this decedent was a subsistence allowance only, that fact does not per se mandate disallowance under all circumstances and does not require reversal here. In Clark the fact of an allowance intended solely for subsistence was important only as it excluded any other purpose, specifically a travel allowance applicable to decedent's travel to his home, over a weekend. Thus the travel was found to be a purely personal mission. In the case before us, the fact of the subsistence allowance does not have the same exclusory function and the board gave it a quite different effect holding that "under the circumstances here where the decedent was given an allowance towards the cost of sleeping and eating because the dredge to which he had been assigned lacked adequate facilities * * * the fatal accident sustained * * * after decedent had left his temporary residence * * * and was on his way to work at the dredge to which he was assigned, arose out of and in the course of his employment." If living quarters on the dredge had been available for decedent's occupancy pursuant to the contract of employment, an off-duty injury therein would clearly have been compensable. ( Matter of Madigan v. United Hosp., 274 App. Div. 107 7, mot. for lv. to app. den. 299 N.Y. 799; Matter of Galvez v. Gold Coast Enterprises, 23 A.D.2d 600.) The substitution of rented quarters elsewhere created a new condition of the employment and subjected decedent to an added hazard — that of travel on the public highways to reach the actual work site. (Cf. Matter of Meissner v. Good Samaritan Hosp. of Suffern, 271 App. Div. 1041, app. dsmd. 296 N.Y. 1001.) We find closely in point Matter of Houghton v. Babcock Wilcox Co. ( 9 A.D.2d 575, mot. for lv. to app. den. 7 N.Y.2d 705), in which we said, "Decedent died as the result of injuries sustained in an automobile accident while he was on his way from temporary living quarters, four or five miles from the job site, to the job site. While decedent was on a temporary assignment away from his permanent place of residence, with the employer, for that reason, contributing toward his expenses, any reasonable activity and especially going from his temporary quarters to the job site, could be found to be within the course of his employment. The accident arose from the risk of his employment." (P. 576.) We turn to a brief discussion of the dissenting memorandum. The work assignment could be characterized only as temporary, and, contrary to the views expressed in the dissent, decedent's nearby living quarters were for the employer's benefit as well as for his own convenience. The subsistence allowance was advantageous to the employer as well as to the employee since it assured decedent's availability at this work site. The nature of decedent's work, which demanded his presence at four different sites in a little over five months, graphically shows the importance to the employer of satisfactory subsistence arrangements for decedent. Moreover, we are not prepared to say, as the dissent seems to imply, that the money received for subsistence could not be classed as added compensation. If quarters had been available on the dredge, decedent's board and room would have been so nominal as to amount to additional compensation. The payment of $10 per week in lieu of the dredge accommodations was a substitute and as such remained an additional benefit. It therefore can be viewed as compensation. And if, as the tenor of the dissent implies, decedent was in no different position than an inside worker at a permanent job, there would be no reason for the subsistence or the furnished quarters in the first place. Thus, the fact of the subsistence allowance aids in determining and describing decedent's proper classification. Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum per curiam. Herlihy, J., dissents and votes to reverse and dismiss in the following memorandum. The background of this case is set forth in the majority opinion. The general rule is that other than an outside worker, an employee is not within his employment in mere travel from his residence, temporary or otherwise, to the place of work. This rule has several exceptions, i.e.: if an employee receives travel pay for the travel, he is within his employment (see Matter of Fisher v. Otis Elevator Co., 28 A.D.2d 598); if an employee receives lodging at a particular place as a part of his compensation or is required by his employer to live in a particular building, he is within his employment. (See Matter of Madigan v. United Hosp., 274 App. Div. 1077, mot. for lv. to app. den. 299 N.Y. 799; Matter of Meissner v. Good Samaritan Hosp. of Suffern, 271 App. Div. 1041, app. dsmd. 296 N.Y. 1001; Matter of Galvez v. Gold Coast Enterprises, 23 A.D.2d 600.) These decisions, cited by the majority, are all readily distinguishable. In the present case the contract of employment between the employer and the union at best provided that if lodging owned by the employer was available at the place of work the employee could, at his election, receive such lodging and meals upon payment of a nominal price of $1.25 per day or $8.75 per week. Lodging and meals were not available for this employee and so he received $10 per week in lieu thereof, again pursuant to the contract of employment. A representative of the union testified that the amount paid was "subsistence pay" according to the terms of the contract. The decisions allowing a recovery to an employee who receives lodging and meals at the employer's expense at a particular location-place have required that such lodging by the terms of the employment be either as compensation or for the benefit of the employer and that, therefore, the premises were a part of the precincts of employment and any reasonable activity therein was contemplated by the contract of employment. (See Matter of Kaplan v. Zodiac Watch Co., 27 A.D.2d 680. ) The present case does not fit within that theory. The residence in this case was not on the work site, nor was it furnished by the employer. Further, it does not appear that the employee was required to live in any particular place for the benefit of the employer. The case of Matter of Houghton v. Babcock Wilcox Co. ( 9 A.D.2d 575, mot. for lv. to app. den. 7 N.Y.2d 705), relied upon by the majority, is somewhat similar to the present case in that there the employee did not reside on the work site, and he was not required to live in any particular residence for the benefit of the employer. That case, however, dealt with the status of an employee temporarily assigned to a place of work other than his permanent place of employment. In the present case the employment at the work site was permanent insofar as the work at that site was concerned. (See Matter of Benjamin v. Kaplan Elec. Co., 8 A.D.2d 239, affd. 9 N.Y.2d 801. ) The decedent in the present instance was not required to live on the barge, assuming that there had been proper accommodations. He was not required to live at any particular place or location but was given an allowance in accordance with the agreement between his employer and the union representing the employees. The board found that "the decedent was given an allowance towards the cost of sleeping and eating because the dredge to which he had been assigned lacked adequate facilities" and then concluded that the decedent "was on his way to work at the dredge to which he was assigned [the accident] arose out of and in the course of his employment". There is no dispute in this record that the allowance was not for travel but for subsistence. The board in its decision apparently completely overlooked the intent and purpose of the employment contract and there is no basis in fact or in law for its conclusion. The decision should be reversed and the claim dismissed.