(dissenting). We feel constrained to state our views which seem to us to follow and to be in accord with those expressed in Matter of Lewis v. Knappen Tippetts Abbett Eng. Co. (304 N. Y. 461), decided two sessions back. We are the more inclined to do this since if there is to be a distinction between employee journeys made solely for work and those combining vacation and work, that should be called to the attention of employees for their protection and to the Legislature as well.
The Workmen’s Compensation Board has made findings of fact which have been affirmed by the Appellate Division of the Supreme Court (3d Dept.). We may not make new findings or add findings of our own. The board expressly found that while the decedent was engaged in the regular course of his employment and while working for his employer he arrived at Biloxi, Mississippi, and was drowned while swimming; that his death was the result of an accident which arose out of and in the course of his employment while “on a combined vacation and business trip to the West Coast ”. Those findings of the Workmen’s Compensation Board are conclusive upon us unless we can say as a matter of law that they are unsupported by evidence (see Workmen’s Compensation Law, § 23; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459). Thus, to set aside the award *29and dismiss the claim we must say, as a matter of law, that no reasonable man on the present record could draw an inference that the stop at Biloxi had anything to do with the business end of the combined business and vacation trip. It seems to us that it is impossible to say that for several reasons. It is a matter of common knowledge among professional men that when one goes out of town on a matter of his professional calling, there is almost no appreciable period of time when his mind is not concerned with the matter in hand. So it is even though the trip be called a combined vacation and business trip. The man is never completely and entirely on either one to the exclusion of the other. Even though on a business trip a man may have his best ideas: as he retires, as he shaves in the morning, as he listens to music, as he considers the progress of the work or a phrase to be used or a meeting to be arranged.
There is indeed nothing factually which may be added to the findings of the board as restated with more detail in the majority opinion of the Appellate Division. If we were to stress or point up any of the facts it would be by way of restating in a conclusory manner that the decedent was a writer and science editor for a nationally known magazine, Newsweek. Decedent had a good background for his work since he had an engineering degree from Cornell University and had had a year in Harvard University in journalism on a fellowship. He had written two books one entitled “Energy Unlimited” and another for the U. S. Signal Corps while serving in the army. He had also written articles for Scientific American. In the spring, when he was about to arrange for his vacation, he decided to speak to his superiors at Newsweek and ask them to extend the four-week vacation to which he was entitled “and make it a real science hop eventually” by going to “the science hot spots so-to-speak and get to see people he was writing about or was planning to write about, see the apparatus he was writing about and see the laboratories ”. He planned to explain to his superiors the necessity of this “ as far as being a good science editor now and in the future ”. This he did by talking Avith his immediate superior. He later outlined the plan in an interoffice communication under date of April 15th to his immediate superior which was subsequently approved by News*30week. The memorandum was received in evidence as an exhibit without objection and will be referred to presently. An agreement was also reached between deceased and Newsweek by which decedent was to receive his salary for the eight weeks he was to be gone at the customary rate of $150 a week as well as $200 for expenses, making a total of $1,400. That was what the board referred to in its second finding of facts as “ a combined vacation and business trip ’ ’, and to which the Appellate Division referred when it said that “decedent’s employee status was so inextricably entwined with his tour as to sustain the board’s finding that his employment included his transient stopover at Biloxi on his route to San Antonio.” (279 App. Div. 502, 504.) Indeed it seems to us that it could not have been found otherwise. The itinerary was to cover, in time, eight weeks from May 7th to July 4th. Feature stories for the following weeks were to be provided by wire or mail to the medical editor who was to handle decedent’s department in his absence. The interoffice memorandum exhibit read: “ Mrs. Clark, as usual, is prepared to handle the department during my absence, except that during three of the weeks I propose to send in feature stories from places I visit which will provide the bulk of the department. Because of out-of-town assignments she has scheduled, material for the following weeks would be most convenient to her, and I can provide it by wire or mail:
(1) week of May 23
(from Oak Ridge or San Antonio, Tex.)
(2) week of June 6
(from New Mexico or California)
(3) week of June 13 (from California) ”.
The deceased came to his death on May 16th, six days after he had left New York and after he had spent several days at Oak Ridge, Tennessee, where he had inspected the atomic energy project and was traveling on a line between Oak Ridge and San Antonio, Texas, with his feature story due in seven days, part of which he had planned to write on the night of the day he died. As to that the decedent’s widow testified: “Well, Monday we had to drive so that we could get somewhere where we could *31put up and we always preferred to drive during daytime in the light so we drove and we were tired, we planned to drive and did drive until we were tired which was I think three or four in the afternoon when we hit the first gulf port which was Biloxi. Q. And did he have any plans for doing any writing on that day? A. Yes, he was going to write up the Bussell story for one thing because he talked about that in the car. Q. He had his notes all prepared for that, is that correct? A. Yes.”
We think it clear that had the decedent met bis death in an automobile accident while driving from Oak Bidge on his way to San Antonio at Biloxi (which is between Oak Bidge and San Antonio) no one would claim that the accident was not compensable. Here, the decedent and his wife arrived at the first gulf city hot and exhausted in the late afternoon and, since they avoided travel after dark, they decided to stop at Biloxi. The decedent decided to go into the water on the beach apparently adjacent to the hotel. Since his wife was pregnant and did not wish to go into the water he sent her onto the beach while he was changing into a bathing suit. She went down directly and he came down in fifteen minutes as they did not unpack. The water was shallow. The decedent went all the way out on the pier, “ it was like three city blocks,” and made a head-first dive into the water. He did not come up and before help could be obtained he was gone. Since, as his wife testified, the decedent 6‘planned to write the Bussell story that evening” and to make some notes on the Oak Bidge visit, we consider that the Workmen’s Compensation Board was correct in finding that the accident arose out of and in the regular course of his employment. We are of the opinion that under the evidence here, if it could be considered that there was a deviation by decedent from his duties of an active nature, there was no such deviation or departure from the general performance of the duties of his mission as to result in a severance of his employee status at the time of the accident. (See Matter of Block v. Camp Shows, 272 App. Div. 980, motion for leave to appeal denied 297 N. Y. 1032; Matter of Tushinsky v. National Broadcasting Co., 265 App. Div. 301, appeal dismissed 292 N. Y. 595).
*32The scientific points of interest in the itinerary included the following:
‘ ‘ 1. Oak Ridge, Tenn.: atomic research
2. Norris Tenn.: TVA research
3. Gorgas, Ala.: experiment in underground coal gasification
4. San Antonio, Tex.: Southern Research Institute
5. Meteor Crater, Ariz.: new diggings by University of New Mexico
6. Imperial Valley, Calif.: All-America canal and reclamation
7. Palomar Mountain: the 200 inch telescope
8. Pasadena, Calif.: California Institute of Technology
9. Los Angeles: University of Southern California: Bing Crosby’s institute of inventions; UCLA
10. San Francisco: University of California (biggest cyclotron, etc.)
11. Palo Alto: Stanford Research Institute
12. Muroc Dry Lake: Supersonic flight testing
13. Denver: University of Denver, Mt. Evans cosmic ray station
14. Los Alamos: Atomic research and possibly a look at uranium mining operations in Colorado ”.
We have set forth and quoted the scientific points of interest and the weeks when the feature stories were to be provided as outlined in the interoffice memorandum exhibit to indicate the extent of the work to be done by decedent on the trip. In the same interoffice memorandum the trip was denominated a vacation and business trip. The Workmen’s Compensation Board in its findings referred to it as ‘1 a combined vacation and business trip ”. If we were permitted to make findings, which of course we are not, we would say that this was predominantly a business trip by a man who was endeavoring to advance himself in his business organization and who was willing to toss in most of his annual vacation for 1949. Many years ago when the Legislature and the Workmen’s Compensation Board were not as liberal in viewing compensation claims as they are today, we laid down in a local ease, involving a trip to a village, a common-sense rule which has often been cited since by us in upholding awards, *33although not in denying them. The test in brief is this: “If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own (Clawson v. Pierce-Arrow Co., 231 N. Y. 273). If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk.” In that case a plumber’s helper who was about to visit a nearby village was asked by his employer, who had learned of the proposed journey, to do a trifling job there. While en route he was injured in an automobile wreck and died. We properly held that the accident “did not arise out of and in the course of the employment ”. (Matter of Marks v. Gray, 251 N. Y. 90, 93-94, Cardozo, Ch. J.) The man on the street would have decided that case in the same way and we have recently said in Matter of Masse v. Robinson Co. (301 N. Y. 34, 37, Loughran, Ch. J.): “ Whether a particular event was an industrial accident is to be determined, not by any legal definition, but by the common-sense viewpoint of the average man.” So here, it seems to us, that the decedent being on his way from one project to another in two separate cities, and there being no requirement that he make the long trip between those two cities without stopping for rest during the night, that stopping at Biloxi with the intention of writing part of his feature article due in New York City within a week and taking a dip in the water to relieve his tiredness and exhaustion so that he might prepare his article, with death accidentally resulting therefrom, was an industrial accident within “ the common-sense viewpoint of the average man.” There can be no question in view of our decision in Matter of Lewis v. Knappen Tippetts Abbett Eng. Co. (304 N. Y. 461, supra) that if dece.dent had been sent by his employer to follow the itinerary as laid out and if it were no part of a combination vacation and work trip, that his death would be compensable. That would be because he would have an employee’s status during all of his trip and could do the things which a person might reasonably be expected to do while living as he ordinarily lived and exercising the care of a reasonable man. When a man is sent on a long trip, whether *34here or abroad, among people with whom he is not accustomed to live, where he will work intermittently, it is not to be anticipated that when he has concluded his work on one of such occasions and the next conference or activity on his part is not to take place for twenty-four or forty-eight hours, that he will immediately repair to his room and remain there until the next period of activity. He may properly go sightseeing (Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., supra); he may go to a barbershop (Matter of Block, supra); he may get a breath of fresh air or a smoke (Matter of Montgomery v. Bartholomay Milk Co., 260 N. Y. 664; Matter of McLellan v. International Paper Co., 269 App. Div. 800, motion for leave to appeal dismissed 294 N. Y. 967); he may go cycling (Matter of Gabunas v. Pan American Airways, 279 App. Div. 697), without ceasing to be covered by workmen’s compensation. That is because he has an employee status during such conduct. It cannot be that because an employee wishes to make himself more valuable to his corporation and at the same time see a portion of the country and scientific projects therein which he has never seen before (merely another way of saying, in this instance, to make himself more valuable to his employer) he loses that which he would have had if he had waited for the employer to pay the entire cost and thus in some mysterious way loses his status as employee whenever he stops working on one piece of business only to regain it days later when he becomes engaged in another piece of business. An employee’s status cannot be such a shifting and shuttling relationship. If the court was right in its decision of the Lewis case, then, it seems to us, the principles there enunciated apply here.
It seems to us, too, that we must now squarely face a new type of employee situation which has arisen in a world which has materially changed and has contracted transportation-wise, and thus geographically, in the last fifteen or twenty years. Before that, workmen’s compensation cases, similar in some aspects to the present one, arose locally, like the trip of the plumber’s helper to a neighboring village. The rules we made, except for more liberality on the part of the Legislature, the Workmen’s Compensation Board and the courts, may still be said to be *35properly applicable and just. We first began to perceive a difference between those cases and cases involving employees sent to foreign lands or to distant cities on their way to foreign lands by their employers. First there was the case of Matter of Lepow v. Lepow Knitting Mills (288 N. Y. 377), in which the employer sent a salesman to South Africa to promote its business interests. While in Africa the employee died of malaria as the result of the sting of a mosquito. Death benefits were awarded to his widow despite the fact, as we indicated, that it could not be determined whether the man was attending to business, relaxing from business cares or sleeping at the time of the accident. Then we had the 77. S. O. cases where employees had volunteered to entertain men in the armed forces (see Matter of Scott v. U. S. O. Camp Shows, 298 N. Y. 896; Matter of Lyons v. U. S. O. Camp Shows, 298 N. Y. 897; Matter of De Santis v. U. S. O. Camp Shows, 275 App. Div. 880, motion for leave to appeal denied 299 N. Y. 798; Matter of Block v. Camp Shows, 272 App. Div. 980, motion for leave to appeal denied 297 N. Y. 1032, supra). Later there came Federal projects in foreign lands: in Europe, in the Middle East and in the Far East. Employers sent employees, as in the Lewis case (supra), for instance, as railroad experts advising foreign governments. That particular employer, as our opinion showed, had offices in New York City, Philadelphia, San Francisco, Miami, Argentina and Israel. It has been common practice for some years for employers to advertise in metropolitan newspapers for skilled laborers who will contract to go to parts of Europe, Africa or Asia for a period of years to work on extensive building projects and ventures. All these employers could engage men living in the cities, towns and villages in which or near which those operations were to be initiated and brought to a conclusion but it is more profitable to them to have skilled men from this country work in those distant places. So it was with the employer in the Lewis case and workmen’s compensation must follow such an employee, as we held it did in the Lewis case, in order to carry out the very purpose for which workmen’s compensation was originated, viz., to spread over the backs of the many the sudden paralyzing losses of the few. It is a matter of workmen’s compensation rates. If the employer wishes to keep his insurance rates down, or his contributions down, if he be a *36self-insurer, he need not engage men here at his New York office and send them to distant countries or to places on this continent away from their homes with the understanding that they are to return here.
In the case of the decedent the employer could have sent him on the trip and paid for it in its entirety in which case he would have been covered under the Lewis case (supra) or he could have hired a separate individual in each of the scientific “ hot spots ” where the employer wished work done or would benefit from work done “ on the scene.” The employer here was benefited and expected to benefit in the future by what the board has found expressly was a “ combined vacation and business trip to the West Coast ”.
The order should be affirmed, with costs.
Loughban, Ch. J., Lewis and Fuld, JJ., concur with Fboessel, J.; Conway, J., dissents in opinion in which Desmond and Dye, JJ., concur.
Order reversed, etc.