Guggenheim v. C. Hedke & Co.

• Decision Date: 08 July 1969
• Citation: 301 N.Y.S.2d 792,32 A.D.2d 1017
• Parties: Claim of Etta GUGGENHEIM, Respondent, v. C. HEDKE & COMPANY et al., Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 792

301 N.Y.S.2d 792

32 A.D.2d 1017

Claim of Etta GUGGENHEIM, Respondent, v. C. HEDKE & COMPANY et al., Appellants Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 8, 1969.

Michael Jackowitz, Brooklyn, for respondent.

Leonard J. Linden, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen (Daniel Polansky and Harry Rackow, Asst. Attys. Gen., New York City, of counsel), for respondent, Workmen's Compensation Board.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, COOKE and GREENBLOTT, JJ.

COOKE, Justice.

Appeal from a decision of the Workmen's Compensation Board awarding death benefits.

The sole question presented is whether the employee was on a business trip at the time he received the injuries resulting in his death, that is, whether his injuries arose out of and in the course of employment. More precisely, the issue is whether the considerable body of hearsay proof of decedent's declarations regarding the nature and purpose of his trip was corroborated sufficiently by 'circumstances or other evidence' so as to establish a compensable accident under section 118 of the Workmen's Compensation Law.

Decedent Edward Guggenheim was the manager of C. Hedke & Company's textile department operating out of a sales office and showroom in New York City, running it like his own business, determining where to go and to whom to sell and accountable to his employer solely for results. He traveled generally on business by plane or car, the employer providing a car used in the business and paying its expenses for his use.

Having been unable to obtain plane passage because of heavy fog, it is undisputed that early on June 15, 1960 Guggenheim left his home in New York with Dr. and Mrs. Pazner, his wife's distant relatives, and set out for Washington in the company owned car. While on the New Jersey Turnpike, the vehicle was involved in a collision, the employee suffered a fractured skull and never fully regained consciousness in the 10 days of survival. The widow testified that decedent told her that he was making the journey because of a $25,000 stock of merchandise which he desired to sell, that he had the addresses of two customers in Washington who had given him cards at an exhibition and had told him that they would be interested in his merchandise. A son-in-law related that deceased stated that he would like to make a business trip to Washington and neighboring states because he had merchandise that was not moving, that he wanted to visit additional customers and people whom he knew could use the commodities and that originally he was planning to fly but decided when it was foggy to leave by car early in the morning. Dr. Pazner swore that the employee told him he was going to visit customers in Washington and vicinity and that he did not know how long he would be busy with them.

Besides the use of the employer's automobile on the expedition, there was also direct and independent evidence that decedent had samples of merchandise and a sample case with him on the trip. The employer's Report of Injury form, commonly referred to as a C--2, filed with the board on August 22, 1960, after referring to the Turnpike collision, responded 'travelling on business' to the question 'What was employee doing when accident occurred?' This report, made after an adequate opportunity for investigation and reflection, contained said considered admission, which may, in addition to the circumstantial evidence adduced, be regarded as further corroboration of decedent's hearsay declarations (Matter of Laine v. Rula Corp., 24 A.D.2d 675, 676, 261 N.Y.S.2d 182, 184; Matter of Toro v. 1700 First Ave. Corp., 16 A.D.2d 852, 227 N.Y.S.2d 605, affd. 12 N.Y.2d 1001, 239 N.Y.S.2d 130, 189 N.E.2d 625; Matter of Webster v. Mason, 13 A.D.2d 355, 358, 217 N.Y.S.2d 290, 293), as well as some evidence of the purpose of the trip (Matter of Kleid v. Carr Bros., 300 N.Y. 270, 272, 90 N.E.2d 185; Matter of Bollard v. Engel, 278 N.Y. 463, 466, 17 N.E.2d 130). All this constitutes sufficient corroboration of the hearsay statements, the statutory corroboration required being not as technical as that at common law, since it may be by 'circumstances or other evidence' (Workmen's Compensation Law, § 118; Matter of Jones v. Chicago Pneumatic Tool Co., 9 A.D.2d 804, 192 N.Y.S.2d 764).

Even if it be assumed that decedent also planned to engage in sightseeing with the Pazners while in the District of Columbia, the rule is well settled that, if a business motive is a concurrent cause of the trip, it comes within the course of employment (Matter of Mahoney v. Stern & Co., 9 N.Y.2d 931, 217 N.Y.S.2d 97, 176 N.E.2d 104, revg. 9 A.D.2d 843, 193 N.Y.S.2d 106; Matter of Connor v. A.M.F. Pinspotters, 24 A.D.2d 815, 816--817, 263 N.Y.S.2d 834, 836; Matter of Sullivan v. L'Heureux, 18 A.D.2d 1116, 239 N.Y.S.2d 56; Matter of Skinner v. Tobin Packing Co. Albany Packing Div., 17 A.D.2d 999, 233 N.Y.S.2d 900).

Questions of credibility were, of course, strictly within the province of the board (Matter of Hornburg v. Alleghany County Dept. of Public Welfare, 29 A.D.2d 1031, 289 N.Y.S.2d 540; Matter of Naples v. Viandvende Corp., 27 A.D.2d 772, 277 N.Y.S.2d 182; Matter of Blaine v. Big Four Inds., 17 A.D.2d 881, 233 N.Y.S.2d 386) and, despite how incredible the testimony submitted by claimant might be to another trier of the facts, this board sought to accept same (Matter of Thompson v. Tomivill Cleaners, 30 A.D.2d 1008, 294 N.Y.S.2d 184). The determination was factual and we cannot say as a matter of law that the board erred (Matter of Mansfield v. General Adjustment Bur., 27 A.D.2d 783, 277 N.Y.S.2d 224, affd. 20 N.Y.2d 881, 285 N.Y.S.2d 854, 232 N.E.2d 852; Matter of Durkee v. Atlantic Refining Co., 27 A.D.2d 773, 277 N.Y.S.2d 184).

Decision affirmed, with costs to the Workmen's Compensation Board.

GIBSON, P.J., and HERLIHY and GREENBLOTT, JJ., concur.

REYNOLDS, J., dissents and votes to reverse and dismiss in the following memorandum.

REYNOLDS, Justice (dissenting).

I can find no substantial evidence in the instant record to support the board's finding that decedent's trip was in any way business motivated. In fact, all of the probative evidence supports only the conclusion that the decedent was taking the Pazners to Washington to see the sights, admittedly a purely personal pursuit. The testimony of the widow, the son-in-law, Klugman, and the Pazners as to the business nature of the trip was concededly in each instance the result of hearsay declarations made to them by the decedent. While admissible, such evidence will support an award only if corroborated by 'circumstances or other evidence' (Matter of Ptaszynski v. American Sugar Refining Co., 280 App.Div. 905, 115 N.Y.S.2d 543, affd. 305 N.Y. 833, 114 N.E.2d 38; Workmen's Compensation Law, § 118). Moreover, the testimony of these witnesses presents such a contradictory story of the preparation and timing of the trip as to render the hearsay evidence even more suspect, to say the least, than is generally the case (Matter of Comstock v. Goetz Oil Corp., 286 App.Div. 132, 142 N.Y.S.2d 217). Of course, hearsay declarations testified to by a witness are not corroborated by the fact that the same or similar declarations were made to, and reiterated by, another witness (Matter of Comstock v. Goetz Oil Co., 11...