Opinion
November 16, 1961
Appeal by plaintiff from a judgment of the Supreme Court at Trial Term in Clinton County, entered upon a verdict of no cause of action, in an action to recover for personal injuries sustained through the alleged negligence of defendant in the operation of an automobile in which plaintiff was a passenger. Defendant pleaded coverage under the Workmen's Compensation Law as a defense. Plaintiff and defendant were coemployees and there was evidence that in pursuance of their work as salesmen they went from their employer's place of business in Plattsburgh, intending to keep an appointment at Willsboro some hours later with a prospective customer and that when he did not appear at his home at the appointed hour, plaintiff and defendant decided to return to Plattsburgh and very shortly thereafter and while they were proceeding in that direction the accident occurred. On this appeal, plaintiff, relying upon Matter of Pasquel v. Coverly ( 4 N.Y.2d 28), argues that the accident did not arise out of the employment but resulted from risks produced by the parties' personal activities in having drinks for some few hours before commencing the return journey. Upon the record before us, the jury was not bound to reach that conclusion; but errors in the charge seem to us to require a new trial. The verdict was predicated upon the jury's special finding that at the time of the accident plaintiff was "engaged within the scope of his employment or the course of it". In thus framing the question and previously in dealing with the issue of employment, the court limited its discussion to the "sphere and scope" of the employment, without explanation of the additional requirement that the accident arise "out of" the employment. The court then remarked that it had been held that a salesman "even traveling en route to his employer's office following a weekend at his employer's home, was within the scope of his employment, if he visited customers on the return after the weekend"; after which the court said, "So I am only citing that case to you as a guide." Here again, but one of the two co-ordinate tests was discussed, and accordingly was overstressed by the illustrative reference employed; and this error was repeated when the court declined plaintiff's request to charge "that the words, `arising out of and in the course of employment' are conjunctive and relief can be had under the workmen's compensation act only when the accident arose both out of and in the course of the employment and that the injury must be received, one, while the workman is doing the duty he is employed to perform; two, as a natural incident to the work; and that it must be one of the risks connected with the employment, flowing therefrom as a natural consequence and directly connected with the work." (Cf. Matter of Heitz v. Ruppert, 218 N.Y. 148, 151-152.) While the practice of framing requests at this length and in the language of judicial opinions is of doubtful propriety, plaintiff was entitled to have the jury instructed as to the substance of the rule. Discussion of appellant's additional contentions is unnecessary. Judgment reversed, on the law, and a new trial ordered, with costs to abide the event. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.