Opinion
May 7, 1952.
Appeal from Workmen's Compensation Board.
On this appeal the contention of the appellants is that the Workmen's Compensation Board has no jurisdiction of the claim and that decedent's death did not arise out of and in the course of his employment. This employer was a partnership of consulting engineers who conducted their business at 62 West 47th Street in New York City. Decedent was employed by the concern as a consulting engineer. In 1948 the employer had assigned a number of engineers to the Pennsylvania area for the purpose of obtaining a contract from the Delaware River Joint Commission for work in and about the city of Philadelphia. In connection with this work it was found necessary to engage the services of a railroad engineer who was familiar with the operations of railroads in that area. Decedent was a consulting engineer who specialized in railroad work. In April, 1948, he was engaged by the employer to make a survey of the railroads which served the ports of the Delaware River at Philadelphia. He was hired from the employer's New York office. In the Spring of 1948, the employer had a contract with the Government of the State of Israel for the performance of engineering work which involved planning the port of Tel Aviv, the port of Haifa, the Tel Aviv water supply, the port of Caeseria and several other jobs. Decedent was assigned to the work in Israel. He was directed to come to the New York office of the employer and the nature of his work was discussed with him. Before leaving for Tel Aviv on August 15, 1948, decedent was given instructions by his employer in New York City concerning the nature of his work. He was also given a written memorandum incorporating his instructions. The employer purchased a round-trip ticket aboard a TWA airplane from New York to Haifa, Israel, for use by decedent. In addition, decedent was given $1,000 in cash for the payment of any expenses which he might incur. Decedent worked for his employer in the office at Tel Aviv and furnished reports to his employer at the New York office. The work in Israel lasted only six weeks. On September 21, 1948, decedent had practically completed his work in Tel Aviv. On the following day he had an appointment with the city engineer of that city in connection with the project. On September 22, 1948, decedent accepted an invitation to go sightseeing in Jerusalem. While en route to Jerusalem he was shot and killed by Arabs. Before returning home decedent had instructions to stop at Athens, Greece, to check on the possibility of obtaining additional work for the employer in that city. One of the partners testified that while decedent remained in Tel Aviv he was subject to call for advice from two of the employer's engineers. At the time he was killed, decedent was on the employer's payroll. While he was in Israel his salary was charged to the payroll of the New York office. One of the employees of the partners who had charge of the accounting records testified that while the men were in Israel they were considered as working out of New York. The audit of the employer's payroll made by the insurance carrier which covered the New York employees included the salary of decedent and the other engineers who worked in Tel Aviv. The board found that decedent was hired by the employer in New York City as a New York employee and that he was assigned temporarily to work in connection with its business in Philadelphia and in the State of Israel and in Athens, Greece. The board found that the injuries sustained by decedent on September 22, 1948, which resulted in his death, were accidental injuries which arose out of and in the course of his employment and that at the time of his death decedent was not violating any orders or instructions of his employer. The board also found that decedent was paid his wages and received his orders and instructions from his employer's office in New York City and that the work which he was doing in Israel was related to and incidental to his employment which was located in the State of New York and that his work was transitory and was not conducted at a fixed place outside of the State of New York. Moreover, there is evidence that even during the trip to Jerusalem he was subject to call and, therefore, in the course of his employment. The evidence sustains the finding of the board. Award affirmed, with costs to the Workmen's Compensation Board.
Heffernan, Brewster, Bergan and Coon, JJ., concur;
I dissent and vote to dismiss the claim on the ground that decedent's death was not caused by accidental injuries arising out of and in the course of his employment. The facts are undisputed. Decedent's trip with a convoy from Tel Aviv to Jerusalem was more than a temporary diversion, and had no connection with his work except that his work brought him to the place where he could undertake the venture on his own initiative. The risk involved had nothing to do with the locale of his work but arose from the fact that the convoy he accompanied was to travel in part through hostile Arab territory, where the possibility of an armed attack was well known. The fact that the party travelled in convoy fashion is ample proof that the journey was not regarded as an ordinary tourist excursion. It would seem that in these so-called diversionary cases a line of demarcation should be drawn between acts which may be fairly said to be within the risk of employment and those which on their face are wholly outside, else workmen's compensation insurance loses its character and becomes life insurance.