Cornelius v. Brock

• Decision Date: 23 December 1966
• Citation: Cornelius v. Brock, 27 A.D.2d 604, 275 N.Y.S.2d 632 (N.Y. App. Div. 1966)
• Parties: Claim of Elizabeth A. CORNELIUS (Robert D. Cornelius, Deceased), Respondent, v. Harry C. BROCK et al., Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 632

275 N.Y.S.2d 632

27 A.D.2d 604

Claim of Elizabeth A. CORNELIUS (Robert D. CorneliusDeceased), Respondent, v.Harry C. BROCK et al., AppellantsWorkmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Dec. 23, 1966.

Hancock, Ryan, Shove & Hust, Robert A. Small, Syracuse, for appellants.

Folmer, Ryan, Fenstermacher & Yesawich, Cortland, for claimant-respondent.

Louis J. Lefkowitz, Atty. Gen., Harry Rackow, New York City, for Workmen's Compensation Bd.

Before GIBSON, P.J., and HERLIHY, REYNOLDS and STALEY, JJ.

GIBSON, Presiding Justice.

Appeal by employer and its insurance carrier from an award of death benefits, appellants contending (1) that defendant's fatal automobile accident did not arise out of and in the course of the employment and (2) that claimant widow had abandoned decedent and accordingly is not a 'legal wife' entitled to benefits, within the statutory definition (Workmen's Compensation Law, § 16, subd. 1--a).

Decedent, a resident of Ithaca, for about 10 years prior to his death had been employed as a painter by the employer, a building contractor located in Ithaca, whose work was principally in Ithaca and vicinity and who, in fact, had never undertaken a job outside New York State prior to his undertaking a contract to remodel a lodge at Conrad, Pennsylvania, some 120 miles from Ithaca, from which job decedent was returning, as a passenger in an automobile owned and operated by a follow employee on the job, when the accident causing death occurred.The work required two weeks to complete and on each Monday the employer and his work crew, including decedent, traveled from Ithaca to the job site, the employer furnishing lodging and meals there during the week, and he and the crew returning to Ithaca after work on Friday.The employer undertook to and did furnish transportation from Ithaca to the job site and return in one of his business vehicles but decedent and his fellow employee Smith, with the employer's approval, chose to ride in Smith's automobile which Smith wished to have with him in case he might not, because of his physical condition, be able to stay until the week's work was finished.Decedent and the other employees were paid for a 40-hour week 'with travel one way', as one of the workmen expressed it, meaning, in this case, that the work week started at 8:00 A.M on Monday when the crew left Ithaca on the two-hour trip to Conrad and ended at 4:30 P.M. on Friday, when the work at the job site at Conrad ended; with the result that the work consumed 38 hours but the employees were also paid for one-half of their four hours' travel time.As appellants would have it, decedent and the others were paid for travel time to Conrad and not for the time required for the return journey, but the largely semantic distinction appears unimportant; and it seems rather clear that an employee in accepting or declining the job would calculate the benefit in terms of total travel time.The employer's arrangement for actual transportation, optional with the employees though it was, or became, and the agreement to make some payment for travel time, sufficiently mark the travel as work-connected and indicate implicit agreement that the journey would be a part of the job (Matter of Coressmann v. Moran & Sons, 4 A.D.2d 712, 713, 163 N.Y.S.2d 546, 547;and seeMatter of Macaluso v. Alexander, Shumway & Utz Co., 11 A.D.2d 838, 203 N.Y.S.2d...