Holcomb v. Daily News
| Decision Date | 06 December 1978 |
| Citation | 412 N.Y.S.2d 118,384 N.E.2d 665,45 N.Y.2d 602 |
| Parties | , 384 N.E.2d 665 Claim of Anne HOLCOMB, Respondent, v. DAILY NEWS et al., Appellants. Workmen's Compensation Board, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
The Workmen's Compensation Board * (Board) awarded death benefits to decedent's widow, and the Appellate Division unanimously affirmed. Appellants contend that the fatal accident did not arise out of and in the course of decedent's employment, as a matter of law, and that the claimant is therefore not entitled to the benefits sought.
On September 19, 1974 decedent, John Holcomb, an employee of the Daily News (News) was on his way to his place of work, the employer's Brooklyn plant, when he noticed and hailed a passing News delivery truck. Recognizing Holcomb, the driver, who had transported him to the plant several times before, stopped the truck to pick him up. During the ride to the plant Holcomb accidentally fell from the truck suffering fatal injuries.
Although the News was not required by the terms of its express written contract to furnish its employees transportation to and from work, several News truck drivers testified at the hearing that they frequently and regularly did so. Indeed, it was a common practice for drivers to make advance transportation arrangements with other News employees. George Fox, business agent of the Mailers and Deliverers Union and former News truck driver, stated that the practice occurred "every night of the week, 365 days a year."
Appellants sought to establish that a company rule prohibited this practice, but several News drivers indicated that not only did they know of no such rule, but that company supervisors and dispatchers were aware that drivers were transporting other News employees to work. Fox noted that supervisors had gone so far as to criticize drivers for not having picked up employees.
In a supplemental decision the Board found "that the employer had no rules against picking up fellow employees and driving them to the place of employment; that it was a common practice (of) the employer to have employees picked up and driven to the place of employment; that the employer in effect acquiesced in such course of conduct and that it was advantageous to the employer * * * to have employees brought to the plant on time."
Preliminarily we note that appellants do not argue that the Board's factual findings are unsupported by substantial evidence. They urge rather that as a matter of law transportation connected accidents are compensable only where the employer is obligated by contract, either express or implied, to furnish transportation to the injured employee. Since decedent's contract of employment included no such provision, appellants contend that the fatal accident was not compensable.
The issue is whether workmen's compensation benefits may properly be awarded for a transportation related injury, where an employer, absent an express contractual duty to provide its employees transportation, knowingly acquiesces to a long-established and commonly occurring practice of its truck drivers to transport other of its employees to work.
In workmen's compensation cases involving injuries to employees while being transported by their employer to or from work, great emphasis has been placed on whether the transportation was gratuitous or contractually obligatory. It has long been the prevailing rule that transportation provided solely as a gratuitous accommodation for the employees' convenience is not an incident of the employment (Matter of Kowalek v. New York Cons. R. R. Co., 229 N.Y. 489, 128 N.E. 888). Injuries sustained by an employee while being transported in this manner have, therefore, been held not to come under the ambit of the Workmen's Compensation Law (Tallon v. Interborough R. T. Co., 232 N.Y. 410, 134 N.E. 327). By contrast, injuries suffered by an employee while in a conveyance furnished by the employer are compensable, if the employment contract, expressly or impliedly, establishes the employer's duty to provide transportation (Matter of Sihler v. Lincoln-Alliance Bank & Trust Co., 280 N.Y. 173, 19 N.E.2d 1008). The rule has been stated as follows: "(A) servant is not entitled to compensation under the Workmen's Compensation Act, if injured in a conveyance while on his way to work, unless the contract of hiring expressly or impliedly provides for transportation" (Van Gee v. Korts, 252 N.Y. 241, 244-245, 169 N.E. 370, 371).
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