Daus v. Gunderman & Sons, Inc.
| Citation | 283 N.Y. 459,28 N.E.2d 914 |
| Court | New York Court of Appeals |
| Decision Date | 24 July 1940 |
| Parties | DAUS v. GUNDERMAN & SONS, Inc., et al. |
283 N.Y. 459
28 N.E.2d 914
DAUS
v.
GUNDERMAN & SONS, Inc., et al.
Court of Appeals of New York.
July 24, 1940.
Appeal from Supreme Court, Appellate Division, Third Department.
Proceeding under the Workmen's Compensation Law, in the matter of the claim for compensation of John P. Daus, employee, opposed by Gunderman & Sons, Inc., employer, and the Century Indemnity Company, insurance carrier. From an order of the Appellate Division, Third Department, 257 App.Div. 1094, 14 N.Y.S.2d 641, unanimously affirming an award of compensation made by the State Industrial Board, employer and insurance carrier appealed to the Court of Appeals by permission after denial by the Appellate Division, 258 App.Div. 820,15 N.Y.S.2d 719, of a motion for leave to appeal to the Court of Appeals.
Order of the Appellate Division and award of the State Industrial Board reversed and original determination of the State Industrial Board dismissing the claim for compensation reinstated.
RIPPEY, J., dissenting.
[28 N.E.2d 915]
Irvin A. Snyder, of New York City, for appellants.
John J. Bennett, Jr., Atty. Gen. (Roy Wiedersum, Asst. Atty. Gen., of counsel), for respondent State Industrial Board.
[28 N.E.2d 916]
George S. Goldberg, of New York City, for claimant-respondent.
LEHMAN, Chief Judge.
The claimant was injured while he was driving his automobile in Queens county shortly before midnight on September 11, 1936. He was employed as a salesman by a corporation engaged ‘in the business of selling automobile brakes and general brake service.’ The claimant used his own automobile in the performance of his work. It would have been impossible for him to do the work required of him without an automobile. He testified that on the evening of the accident he met a prospective customer who desired to establish an automobile service station in Queens county; that they had dinner together, and that claimant, intending to sell to the customer a braketesting machine and other equipment after the service station was established, drove the prospective customer around Long Island City during the entire evening looking for a good location for the proposed station; that at 11:30 p.m. he dropped the prospective customer and was proceeding to his own home when the accident occurred. The testimony of the claimant was corroborated by the alleged prospective customer. If true, there can be no doubt that the claimant's accidental injuries were sustained in the course of his employment and arose out of his employment. The referee, after hearing the witnesses, so found, but the Industrial Board thereafter reversed the decision and found that the claimant was not entitled to any award. It rejected the testimony produced by the claimant because of inherent improbability in that testimony, and refused to find that the midnight accident occurred in the course of the claimant's employment.
The Appellate Division reversed the decision of the Industrial Board and by order entered December 5, 1938, remitted the matter to the State Industrial Board ‘for an award in favor of the claimant and against the employer, Gunderman & Sons, Inc., and against the insurance carrier, the Century Indemnity Company of Hartford, Connecticut.’ After a brief hearing to determine the amount to which the claimant would be entitled for accidental injuries sustained in the course of and arising out of his employment, the Industrial Board made the ‘award in favor of the claimant and against the employer * * * and against the insurance carrier’ which the Appellate Division had directed it to make. It held no hearing de novo upon the merits of the claim. The Appellate Division had issued a mandate which, under the express terms of the order, left to the Industrial Board no judicial discretion upon the question of whether or not the claimant was entitled to an award. That was determined by the order of the Appellate Division. Further judicial or quasi-judicial action by the Industrial Board was confined to determination of the amount of the award. The employer and carrier appealed from the award, and thereafter the Board, in accordance with the provisions of section 23 of the Workmen's Compensation Law (Consol. Laws, ch. 67) filed its findings of...
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Malacarne v. City of Yonkers Parking Authority
...(see Matter of Seymour v. Rivera Appliances Corp., 28 N.Y.2d 406, 322 N.Y.S.2d 243, 271 N.E.2d 224; Matter of Daus v. Gunderman & Sons, 283 N.Y. 459, 465, 28 N.E.2d 914, 917). Without such proof, an award cannot properly be granted; it is then unsubstantiated under the It shoud be noted tha......
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Perdue v. Brittingham, 109.
...Co. v. Carl, 156 Md. 535, 144 A. 708), but not one which occurs on a pleasure drive (Matter of Daus v. Gunderman & Son, Inc., 283 N.Y. 459, 28 N.E.2d 914) or on other pleasure bent, even if there is incidental talk about business. Atlantic Refining Co. v. Forrester, 180 Md. 517, 25 A.2d 667......
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Wilson v. Gen. Motors Corp.
...See Matter of Dyviniek v. Buffalo Courier Express Co., 296 N.Y. 361, 364, 73 N.E.2d 552; see, also, Matter of Daus v. Gunderman & Sons, 283 N.Y. 459, 465-466, 28 N.E.2d 914, 917-918;Matter of Lorchitsky v. Gotham Folding Box Co., 230 N.Y. 8, 12, 128 N.E. 899, 900. In truth, the presumption ......
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Perdue v. Brittingham., 109.
...Co. v. Carl, 156 Md. 535, 144 A. 708), but not one which occurs on a pleasure drive (Matter of Daus v. Gunderman & Son, Inc., 283 N.Y. 459, 28 N.E.2d 914) or on other pleasure bent, even if there is incidental talk about business. Atlantic Refining Co. v. Forrester, 180 Md. 517, 25 A.2d 667......