Opinion
November 14, 1945.
In this appeal from an award of death benefits to the family of deceased truck driver who was killed while operating his employer's loaded truck en route to a scheduled destination, the question is whether there was any evidence to sustain the finding that the fatal accident arose out of and in the course of decedent's employment. Appellants contend that the evidence conclusively establishes the premise that at the time of the accident decedent had so detoured from his course of scheduled travel, for personal reasons, and had thus so departed from the course of his employment and was so separated therefrom at the time of the accident that the decision and award appealed from are without evidence to support them. Other than the fact that decedent's accident occurred a short distance from the State highway upon which he had been proceeding from the start of his course, the cause of the location of the accident rests upon circumstantial evidence susceptible of conflicting inferences, some of which may be said to sustain the decision and award. This, along with the other evidence, is such that we think it may not be said that the decision and award appealed from are without evidence to support them. ( Matter of Schwimmer v. Kammerman Kaminsky, 262 N.Y. 104; Matter of McCarthy v. Colonial Life Ins. Co., 266 App. Div. 930, motion for leave to appeal to Court of Appeals denied, 266 App. Div. 103 8.) The decision and award should be affirmed. Decision and award affirmed, with costs to the Workmen's Compensation Board. All concur.