McKay v. Republic Vanguard Ins. Co.

• Decision Date: 02 November 1967
• Parties: , 232 N.E.2d 854 In the Matter of the Claim for Death Benefits etc. made by Mary McKAY, Widow etc., Claimant-Respondent, v. REPUBLIC VANGUARD INSURANCE COMPANY, Employer, et al., etc., Appellants, and Workmen's Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 857

285 N.Y.S.2d 857

20 N.Y.2d 884, 232 N.E.2d 854

In the Matter of the Claim for Death Benefits etc. made by

Mary McKAY, Widow etc., Claimant-Respondent, v. REPUBLIC VANGUARD INSURANCE COMPANY, Employer, et al., etc., Appellants, and Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

Nov. 2, 1967.

Appeal from Supreme Court, Appellate Division, Third Department, 27 A.D.2d 607, 275 N.Y.S.2d 742.

Proceeding was brought to recover death benefits.

Deceased was employed as district manager for his employer, an insurance company, having its main office in Buffalo and branch offices in various cities throughout the state. One of the duties of the deceased was to travel to various cities in the state to supervise and consult with the employer's agents. The employer customarily paid all expenses for deceased's transportation, lodging, meals, and incidentals while he was traveling on employer's business. While deceased was traveling in course of his duties in employer's automobile he procured lodging for the night at a motor lodge in Henrietta, New York. The following morning a fire occurred in and completely destroyed the room occupied by the deceased, resulting in his death from 'acute carbon monoxide poisoning and abrasive body burns.' The cause of the fire was never determined. An autopsy revealed that there was .30 grams percent of alcohol in blood of deceased.

The employer and its insurance carrier explicitly stated that they were not raising as a defense Section 10 of the Workmen's Compensation Law, Consol.Laws, c. 67, which bars compensation where injury is occasioned by reason of intoxication.

The Referee awarded death benefits on a finding that deceased's death arose out of and in the course of employment solely on the issue whether deceased's personal acts were responsible for his death.

The Workmen's Compensation Board rendered a decision in favor of the claimant and held that deceased's death, caused by fire of unknown origin, arose out of and in course of employment.

The Appellate Division entered an order January 4, 1967 which unanimously affirmed the decision of the Board.

The employer and its insurance carrier appealed to the Court of Appeals by permission of the Court of Appeals. They contended in the Court of Appeals that the Appellate Division erred in determining that deceased's death did not result from a risk produced by his personal activities. The Board contended in the Court of Appeals that...