Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision and award of the Workmen's Compensation Board by the employer and its carrier. The facts are relatively undisputed. Claimant was the district manager for the employer, Aero Mayflower Transit Co., for New York State, except the metropolitan area, and New England. He was injured in an automobile accident on Friday April 18, 1958 at sometime between 10:15 and 11:00 P.M. while returning from dinner in Cooperstown to a camp owned by his parents at Arnold's Lake some 10 miles away. Claimant had been with Aero Mayflower since 1944 and had previous to the assignment mentioned above worked in the southeastern United States. Claimant's duties were to travel and meet with local agents and the public and discuss operations and operational problems. A vice-president, Mr. Rosasco, testified, however, that at the time of the accident claimant was working specifically on trying to build up business in up-State New York. Claimant had no regular office at any point in his territory but the employer has a sales office in New York City to which claimant occasionally went. The testimony differs over whether claimant spent 25% or approximately 50% of his time in New York State. Claimant was paid directly from the main office in Indianapolis. He had an Indiana operator's license though the car he operated was registered in New York. Claimant had no residence in New York; he lived in hotels and motels and all of his expenses even on week ends were paid by the employer except for those occasions when he stayed at the camp and thus incurred no expense. Claimant's direct superior to whom he sent all his reports was located in Indianapolis. There is proof, however, that claimant also sent copies of all of his reports to the company's New York City office, and that claimant was subject to the direction of Mr. Rosasco whose office was located in New York City. Claimant's normal work week was Monday to Friday, 9:00 to 5:00 P.M. although occasionally he spent evenings and Saturday mornings filling out reports and was subject to 24-hour call. On the day of the accident claimant had planned to make stops between Elmira and Syracuse. When he arrived in Ithaca he called Mr. Rosasco in New York and was directed by him to meet him in Boston on Monday morning. Claimant proceeded on to Cortland and from there instead of going on to Syracuse he apparently decided that since he had to go to Boston he would proceed east and stop in Norwich and then go on to his parents' camp. He arrived at the camp between 7:00 and 7:30, and stopped only long enough to drop off his suitcase before driving to dinner at Cooperstown. Appellants urge that the New York Workmen's Compensation Board has no jurisdiction on the grounds that claimant is an Indiana rather than New York employee. In Matter of Nashko v. Standard Water Proofing Co. ( 4 N.Y.2d 199, 200-201) the Court of Appeals spelled out the following approach to the problem. "What has developed is an approach whereby certain factors tending to show substantial connection with this State are looked for in the factual patterns of each individual case. If sufficient significant contacts with this State appear so that it can reasonably be said that the employment is located here, then the Workmen's Compensation Board has jurisdiction. ( Matter of Cameron v. Ellis Constr. Co. [ 252 N.Y. 394], supra, p. 397; see, also, Cardillo v. Liberty Mut. Co., 330 U.S. 469, 476.) If on the other hand the circumstances and elements of the employment are such as to indicate that the employment is in fact located in another State then the claimant is not protected by our statute. But at all times the determination as to the employment's location is governed by the facts of the particular case." We do not think that the board was compelled to find a lack of jurisdiction on the facts in this record since a substantial amount of claimant's work was performed here and he was not only subject to control from the New York office but was headed at the time of the accident in the general direction of Boston on direct orders from the New York office. Appellants also urge that when claimant arrived at the cottage he left his employment and that thus the ensuing trip to dinner was a personal pursuit. Claimant was an outside man, living at motels and hotels and constantly eating out. He was subject to 24-hour call and subject to change of orders and route. Under these circumstances we do not find that the board erred in finding claimant's trip to dinner was in the course of his employment ( Matter of Schreiber v. Revlon Prods. Corp., 5 A.D.2d 207). Nor do we find any merit in appellants alternate argument that even assuming claimant had not completely left his employment his trip to the camp constituted a sufficient deviation from his employment goal of proceeding to Boston so as to remove him from his employment status at the time of the accident. We have consistently held that it does not matter that a claimant is not taking the best route to his business destination so long as he was heading in the general direction ( Matter of Hilliker v. North American Van Lines, 12 A.D.2d 677). Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.