Claim of Glickman v. Greater New York Taxpayers

Fuld, J.

While workmen’s compensation is not confined by common-law conceptions of scope of employment ” (O’Leary v. Brown-Pacific-Maxon, 340 U. S. 504, 506), more must be shown, to warrant an award, than injury or death and the relationship of employer and employee. It must also appear that such injury or death arose out of and in the course of ” the employment (Workmen’s Compensation Law, § 10).

Sidney Glickman worked as an outside claims investigator for appellant employer, a casualty insurance company. His work, of an investigatory nature, was restricted to a very limited area, *433to upper Manhattan and a part of the Bronx. Since he covered his territory in his own automobile, he received, in addition to his salary, $10 a week for expenses incurred in its operation. He reported to his employer’s office but twice a week, on other days going directly from his home to make his calls. He did, however, have more or less regular working hours — from 9:00 a.m. to 5:30 p.m. — from Mondays through Fridays, whether in or out of the office. Not required to work overtime unless “ necessity required it ”, he sometimes interviewed people in the evening, and even on a Saturday or a Sunday, but never “ outside of New York City’s limits.”

In the summer of 1948, Glickman rented a room for his wife and child in the Catskill Mountain region, at Woodridge, about ninety miles from New York City, and there, with his employer’s knowledge, he drove each Friday to spend the week end with them. On Monday, August 16th, shortly after nine o’clock in the morning, as he was returning to New York City, he was killed when his car collided with a truck in Middletown, some twenty-five miles from Woodridge. According to his wife, he had worked during that last week end on papers that he had brought with him from the city.

Glickman was an “ outside worker ” — to distinguish him from one whose employment confines him to office desk or factory bench — but that did not mean that every accident that might befall him would be within the compass of the Workmen’s Compensation Law; it had still to be within the ambit of his work, it had still to arise out of and in the course of his employment. (Cf. Matter of Bennett v. Marine Works, 273 N. Y. 429, 431; Matter of Gottshall v. United Utilities & Specialty Co., 275 App. Div. 736, motion for leave to appeal denied 300 N. Y. 761; Matter of Williams v. Arthur Gallow, Inc., 264 App. Div. 800, motion for leave to appeal denied 289 N. Y. 854.)

Here, the employee’s week-end trip to the Catskill Mountains was inspired by reasons purely personal, having no connection with his employment. The circumstance that he may have given thought to his work, that he may have read some papers bearing upon it, cannot transform a vacation week end into a business activity. (See, e.g., Murphy v. Board of Educ., *434314 Mich. 226; Industrial Comm. v. Gintert, 128 Ohio St. 129; see, also, 1 Larson’s Workmen’s Compensation Law [1952], § 18.31, p. 253; § 18.32, pp. 256-257.) At any rate, when Glickman left Woodridge on Monday morning — whether or not he intended to stop at his home in the Bronx before starting upon his investigations — it may not be said that his personal trip had ended and his business day had begun. His field of employment, far from extending to the Catskills, was limited to an area in upper New York City, some sixty-five miles from where he was killed. (See, e.g., Matter of O’Keefe v. Friederich & Son, 260 App. Div. 818.) Certainly, death while at Woodridge on Saturday or on Sunday, or even while on his way there on Friday, would not have been regarded as in the course of employment. The happenstance that the accident occurred on the return trip, long before he had resumed his employment, may not be relied upon to render his death compensable. (Cf. Matter of Scott v. U. S. O. Camp Shows, 298 N. Y. 896.)

Nor can the fact that the week-end trips were known to the employer or that Glickman was required, if necessary, to work evenings and week ends, assist claimants or render Glickman an employee making a “ dual purpose ” trip. (Cf. Matter of Davis v. Newsweek Mag., 305 N. Y. 20, 24-26; Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N. Y. 461; Matter of Lepow v. Lepow Knitting Mills, 288 N. Y. 377; Matter of Marks v. Gray, 251 N. Y. 90, 93; see, also, 1 Larson, op. cit., §§ 18.12,18.13,18.14, pp. 241 et seq.; § 25, p. 384.) In order to entitle an employee to compensation for an injury sustained while on a “ dual purpose ” trip, service to the employer must have been one of the motivating reasons, at least a “ concurrent ” cause, for the journey. In the very recent Davis case (supra, 305 N. Y. 20), for instance, we dismissed a claim for death benefits where the employee met his death while on a trip 1 ‘ predominantly ’ ’ for pleasure and only incidentally for business purposes (p. 24). We unequivocally held that, to establish liability — to borrow from Matter of Marks v. Gray (supra, 251 N. Y. 90, 93-94), cited with approval in the Davis case — ‘ the inference must be permissible that the trip would have been made though the private errand had been canceled. * * # If the work of the *435employee 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 * * *. 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 * * the travel is then personal, and personal the risk.”

So, here, the trip to Woodridge ivas personal, and personal the risk.” Of course, when Monday came, it ivas necessary that Glickmau retrace his route and return to his job, but his work had in no way created ‘1 the necessity for travel ’ ’. To highlight the problem, and make more evident the answer, we need only think of week-end trips to distant parts, for example, from Yew York City to the Adirondacks or to Canada. To uphold an award for an injury sustained by the employee while on, or returning from, such a trip would extend the employer’s liability beyond all reasonable or permissible limits, even under a socially conceived statute such as the Workmen’s Compensation Law.

The very different fact situation reflected in Matter of Gottshall {supra, 275 App. Div. 736), upon which the Board relies, effectively distinguishes that case from the present. An employee, a salesman collector, who had spent the week end at his home in Penn Yan, was fatally injured while returning to his employer’s place of business in Binghamton. Death benefits Avere allowed, but, the record significantly revealed, (1) the employer had actually supplied the gasoline for the car for that very Aveek-end trip, (2) the employee had solicited sales and had prepared his accounts, for submission to his employer, at Penn Yan over the Aveek end, (3) had customers along the road, upon whom he frequently called on his way back to Binghamton, and (4) had in his possession, at the time of the accident, merchandise and money belonging to his employer. As is thus apparent, the resemblance between the cases is entirely superficial. While, in Gottshall, the accident occurred in the \rery territory where the employee worked, in the course of a trip entirely bound up in service to his employer, Glickman was killed on his way back from a purely personal pleasure trip, many, many miles from where his day’s work Avas to begin.

*436The order of the Appellate Division should be reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed, with costs in this court and in the Appellate Division against the Workmen’s Compensation Board.