McKay v. Republic Vanguard Ins. Co.
| Decision Date | 27 December 1966 |
| Citation | 275 N.Y.S.2d 742,27 A.D.2d 607 |
| Parties | Claim of Mary McKAY, Respondent, v. REPUBLIC VANGUARD INSURANCE COMPANY et al., Appellants. Workmen's Compensation Board, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Brown, Kelly, Turner, Hassett & Leach, Marvin H. Mason, Buffalo, for appellants.
Frey, Russo & Ryan, Buffalo (Williams, Williams, Volgenau & Tisdall, Buffalo, of counsel) for claimant respondent.
Louis J. Lefkowitz, Atty. Gen., Henriette B. Frieder, New York City, for Workmen's Compensation Board.
Before GIBSON, P.J., and HERLIHY, REYNOLDS and STALEY, JJ.
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board which affirmed an award of death benefits to the widow and two minor children of George F. McKay.
The decedent was employed as the District Manager of the employer, Republic Vanguard Insurance Co. He worked out of the Buffalo office and, as part of his duties, travelled to various cities in the state to supervise and consult with the employer's agents. On December 12, 1963, he was working in the Batavia and Rochester area calling on agents with Gary Hoffman, a special agent of the employer. Hoffman returned to Buffalo during the day and the decedent continued to work in the Rochester area making his last stop at about 5:00 P.M. to 5:30 P.M.
The employer customarily paid all expenses for the decedent's transportation, lodging, meals and incidentals, and, in accordance with his usual practice, while on field trips away from his home office, the decedent procured lodging for the night at the Trenholm Motor Lodge in Henrietta, New York. At 7:00 P.M. and at 9:00 P.M. the decedent discussed business with Gary Hoffman in a telephone conversation, and arranged to meet the next day. At 6:30 A.M. on December 13, 1963, a fire occurred and completely destroyed the room occupied by the decedent, resulting in his death from 'acute carbon monoxide poisoning and abrasive body burns.' An autopsy performed upon the decedent revealed that there was .30 grams per cent of alcohol in the decedent's blood. An expert in toxicology testified that this concentration of alcohol was indicative that 'the person on which these tests were done was highly intoxicated from the use of ethyl alcohol,' and that
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