Opinion
October 27, 1967
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board on the grounds that claimant's accident did not arise out of and in the course of his employment. At 2:00 P.M. on December 31, 1964 claimant, a truck driver, returned to the employer's factory in Brooklyn after his day's deliveries and was instructed by a supervisor to park the tractor at a garage located about six or seven blocks, three or four minutes driving time, away. However, instead of proceeding to do so immediately claimant with $100 given him by the head foreman and in the head foreman's personal car went to a liquor store and purchased a supply of liquor for a New Year's Eve party to be held that evening at the home of one John Arroyo located directly across the street from the factory. After delivering the liquor to Arroyo's home, claimant drank a beer and then at about 4:00 P.M. obtained a ride home with one Joe Duke. Still the tractor had not been taken to the garage and claimant explained that he did not do so on his return from the liquor store for fear of missing his ride with Duke. At 10:30 P.M. claimant returned to the party at Arroyo's house where he remained till sometime after midnight. Upon leaving Arroyo's claimant got in the tractor, which was still parked across the street, and proceeded therein a short distance when, in an unwitnessed accident, he hit two light poles, sustaining the injuries involved. Whether a given accident arises out of and in the course of employment is a question of fact and thus for the board's sole resolution if its decision is supported by substantial evidence ( Matter of Durkee v. Atlantic Refining Co., 27 A.D.2d 773). Here the board could accept claimant's testimony that he was given no specific deadline as to when he was to have the tractor at the garage and that he was proceeding on the regular route to the garage at the time of the accident and thus properly find that the accident was work connected. We cannot say that, as a matter of law, the board was required to reject claimant's testimony and accept contrary or conflicting testimony proffered by other witnesses. Similarly, we cannot say that the board had to find that the case comes within the rationale of Matter of Pasquel v. Coverly ( 4 N.Y.2d 28) or Matter of Hancock v. Ingersoll Rand Co. ( 21 A.D.2d 703). Concededly, there is testimony that claimant appeared intoxicated when he left Arroyo's house but claimant testified that he had only one or two drinks and there is no medical evidence as to claimant's degree of intoxication. On such a state of the record the board's determination must be upheld ( Matter of Sosnovich v. Trefflich Bird Animal Corp., 12 A.D.2d 538). Decision affirmed, with costs to the Workmen's Compensation Board. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum by Reynolds, J.