Opinion
October 27, 1967
Appeal by the claimant-widow from a decision of the Workmen's Compensation Board dated October 19, 1966 which disallowed her claim for death benefits. The claimant's deceased husband was employed by the respondent-employer as a branch manager and sales manager of its plant in Westhampton, Long Island. On August 9, 1965 he left the employment premises at about 6:30 P.M. in the company automobile furnished by the employer. At about 9:00 P.M. on the day of the accident he called his wife and said that he was on his way home "and he had problems he would explain them when he would get home". He did not discuss the nature of the problems with her at that time. According to the police accident report at 9:15 P.M. or some 15 minutes after he called his wife, the decedent drove his automobile off the travelled part of the highway and struck a car parked on the shoulder of the highway. He died soon after the accident. The autopsy report revealed some alcohol in the decedent's brain but there was no evidence of intoxication. The board panel on appeal found that the decedent was en route to his home at the time of the accident and was operating the employer's car. It also found that there was no intervening business pursuit by the decedent from the time he left his employment premises and the time of the accident. The claim was disallowed on the ground that the accident did not arise out of and in the course of the employment. The record contains testimony which would indicate that the decedent had been both an inside worker and an outside worker which testimony would ordinarily give rise to a presumption (Workmen's Compensation Law, § 21) that the employee was in the course of his employment at the time of the accident and that the accident arose out of such employment. (See Matter of Skinner v. Tobin Packing Co., 18 N.Y.2d 738; Matter of Church v. Worthington Corp., 12 A.D.2d 571, 572, mot. for lv. to app. den. 9 N.Y.2d 609; Matter of O'Connor v. Johnson Johnson, 12 A.D.2d 846, mot. for lv. to app. den. 9 N.Y.2d 611; Matter of Marsh v. Rochester Tel. Corp., 27 A.D.2d 611; Matter of Mansfield v. General Adjustment Bur., 27 A.D.2d 783, 784.) The board made no finding on this issue which could be determinative of the claim and, accordingly, the decision must be reversed. Regardless of the decedent's status as an inside or outside worker, it is unquestioned but that the employer furnished the decedent transportation to and from the place of employment. Ordinarily the fact that an accident occurred while en route from the place of employment to home under such circumstances gives rise to the statutory presumption that the accident occurred in the course of the employment and arose out of such employment. (See Matter of Fisher v. Otis Elevator Co., 28 A.D.2d 598, 599; Matter of Lane v. Fort Neck Dredging Co., 28 A.D.2d 949, dissenting opn., 950, 951; Matter of Cornelius v. Brock, 27 A.D.2d 604; Matter of Coressmann v. Moran Sons, 4 A.D.2d 712.) In the present case the board might be able to find that the time which elapsed between the leaving of the employment premises is unexplained, but there is no evidence of a deviation from the route home. The board made a naked finding that there was no pursuit of his employment during this period of time and that the fatal accident which took place did not arise out of and in the course of employment, but there is no substantial evidence of a personal deviation which would or could be a leaving of the course of the employment and which would appear inferentially to be the basis for the finding. In any event, the decision of the board is ambiguous and therefore legally insufficient to deny compensation. Decision reversed, with costs to appellant against respondents employer and insurance carrier, and matter remitted for further proceedings not inconsistent herewith. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Herlihy, J.