Opinion
November 23, 1970
Appeal from a decision of the Workmen's Compensation Board, filed June 13, 1969. The sole issue is whether there is substantial evidence to sustain the board's finding that decedent's fatal injuries arose out of and in the course of his employment. This is a claim for death benefits on behalf of the widow of a foreman of a gang engaged in loading and unloading lighters and barges at piers in Brooklyn. Decedent, normally the foreman at the 23rd Street pier, was temporarily assigned at the 29th, 30th and 31st Street piers. On Friday, December 22, 1967, work terminated at 12:00 noon, as was the custom on a Friday before a holiday. His work duty was concluded at 2:00 P.M., but he remained near the piers until 4:45 P.M., when he was fatally struck by an automobile while crossing Third Avenue at its intersection with 23rd Street. Substantial evidence supports the finding of a majority of the board "that it was decedent's employment obligation to make an inquiry as to whether there would be any work the next day; that on December 22, 1967 decedent was on his way to the 23rd Street pier for that purpose when he was struck by an automobile, sustaining fatal injuries", and "that the injuries arose out of and in the course of employment". The record contains testimony that appellant's gangs worked overtime on Saturday and Sunday before Christmas day, and appellant's acting district foreman admitted that this "has happened many times". He further testified that it was the "custom" of the foreman to check up on the availability of overtime work on weekends and holidays. Michael Hayes, a freight handler also employed by appellant, was present at the scene of the accident and rode with decedent in the ambulance which took him to the hospital. Decedent informed Hayes that he had come down to the docks to find out about work for the next day. Another witness testified that decedent was headed in the direction of the 23rd Street pier when he was struck by the automobile. Contrary to appellant's contentions, although the board did not decide the case on the basis of the "custom" evidence, it provided corroboration of the hearsay declarations of the decedent (Workmen's Compensation Law, § 118). Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Greenblott and Cooke, JJ., concur. Reynolds and Staley, Jr., JJ., dissent and vote to reverse and dismiss the claim in the following memorandum: The decedent was not in the course of his employment when he was struck on the public highway. It is uncontradicted that he had left his employment at 1:00 P.M. on December 22 for the Christmas holiday weekend in accordance with the usual custom of the dock workers and his presence at 5:00 P.M. when the fatal accident occurred was for purely personal reasons and unconnected and unrelated to his employment. His death did not arise out of or in the course of his employment, and there is no substantial evidence in the record to the contrary. The highly suspect testimony of the witness Hayes cannot be considered since it was completely uncorroborated (Workmen's Compensation Law, § 118; Matter of Ohriner v. Jamaice Wet Wash Laundry Co., 5 A.D.2d 901). The decision of the board should be reversed and the claim dismissed.