Summary
In Meredith v. United States Industrial Chemicals Co., 14 A.D.2 d 955, 221 N.Y.S.2d 113 (App. Div. 1961), decedent engineer was sent to the site of a new plant being constructed in Ohio and to be used to produce materials for submarine atomic reactors.
Summary of this case from Cavalcante v. Lockheed Electronics Co.Opinion
November 16, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision and award of the Workmen's Compensation Board by the employer and its carrier on the ground that there is no substantial evidence that the decedent died from injuries which arose out of and in the course of his employment. The facts are not disputed. Decedent was an engineer employed by United States Industrial Chemicals Co., a division of National Distillers Chemical Corporation. The United States Industrial Chemicals Co., was constructing a plant in Ashtabula, Ohio, to produce high-grade zirconium for use in submarine atomic reactors. Delays in completing the plant and in producing the desired grade of zirconium had beset the company. Decedent worked out of the home office in New York and had made frequent trips to Ashtabula which is just over the Pennsylvania line in Ohio. On the trip in question decedent was sent from the home office in New York to Ashtabula arriving on December 17, 1957. That entire day until 6:00 P.M. was spent in meetings with other engineers on how to solve the problem involved. On the adjournment of the meeting at 6:00 P.M. it was agreed to meet at the cocktail lounge of the Hotel Ashtabula for further discussion. Decedent had originally expected to return to New York on the night of the 17th but was ordered by his superior to remain in Ashtabula till the week end to expedite matters. At the meeting in the cocktail lounge decedent and his associates had one or two drinks, but this meeting it is conceded was primarily for business purposes. At 8:30 P.M. decedent, Carlson and Birchall saw their two supervisors off on the train to New York and went to the Billow Beach Steak House to have dinner and further discuss the project. During this period decedent and his companions had more drinks but there is no proof that any of them became intoxicated. While at the Steak House decedent and his companions met Mrs. Smith, the secretary of the prime contractor, and she joined the group. Sometime later instead of returning to their motel, which was east of the city, the group, including Mrs. Smith, went further west to Mark Little's Tavern "to get a change of scene" and because they were "tired of sitting." Birchall testified that although relaxing activities such as dancing were engaged in at the tavern the business discussions continued. At about 1:30 A.M. Carlson took Mrs. Smith home. On Carlson's return about 2:00 A.M. all started back toward Ashtabula, decedent riding with Carlson. On the way back, in windy, rainy weather, Carlson's car hit a bridge abutment killing decedent. The problem of what activities of the employee away from home are to be considered in the course of his employment has proved very vexing to the courts. In Matter of Davis v. Newsweek Mag. ( 305 N.Y. 20, 27-28) the Court of Appeals sets forth the basic test applicable to situations comparable to the instant case. "In each and every instance the employee had been directed, as part of his duties, to remain in a particular place or locality until directed otherwise or for a specified length of time. In those circumstances, the rule applied is simply that the employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if he does so the risk inherent in such activity is an incident of his employment." It is clear that those activities which are purely personal pursuits are not within the scope of employment as opposed to those required to satisfy the ordinary physical needs, including relaxation, of one away from home. (Cf. Matter of Pasquel v. Coverly, 4 N.Y.2d 28; Matter of Kohl v. International Harvester Co., 9 A.D.2d 597; Matter of Schreiber v. Revlon Prods., 5 A.D.2d 207.) There is evidence in this record from which the board could have fairly found that the decedent's activities in going out to dinner and continuing the discussions with his coemployees at a public place were not unreasonable. The decedent was required to remain in Ashtabula by his employer. There was a sense of urgency for the solution of the engineering difficulties and as Birchall, appellants' own witness testified, the evening they spent together and which ended with the decedent's fatal accident was not entirely a matter of relaxation. They were still discussing the encountered problems. In our view this case is well within Matter of Daly v. State Ins. Fund ( 284 App. Div. 174, motion for leave to appeal denied 307 N.Y. 942). We find Matter of Pasquel v. Coverly ( supra) inapposite on the facts herein. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.