Sedlak v. J. & A. Custom Heating & Air Conditioning, Inc.

• Decision Date: 08 July 1969
• Citation: 301 N.Y.S.2d 1002,32 A.D.2d 1020
• Court: New York Supreme Court — Appellate Division
• Parties: Claim of Julia SEDLACK, Respondent, v. J. & A. CUSTOM HEATING & AIR CONDITIONING, INC., et al., Appellants. Workmen's Compensation Board, Respondent.

Page 1002

301 N.Y.S.2d 1002

32 A.D.2d 1020

Claim of Julia SEDLACK, Respondent, v. J. & A. CUSTOM HEATING & AIR CONDITIONING, INC., et al., Appellants Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 8, 1969.

Melvyn L. Jacoby, Patchogue, for respondent.

Carlton A. Walls, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Daniel Polansky and Morris N. Lissauer, Asst. Attys. Gen., New York City, of counsel), for respondent, Workmen's Compensation Bd.

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

GIBSON, Presiding Justice.

Appeal by an employer and its insurance carrier from a decision of the Workmen's Compensation Board which awarded death benefits.

The employer reported, and the board found, that decedent, while returning from a service call in the employer's service truck, came to his death as the result of a collision between the truck and another motor vehicle. The board also found, and upon substantial evidence, that on the day in question, a Sunday, a heating system which the employer had installed in a tavern some months before broke down and decedent was called to repair it; that decedent 'arrived in the employer's truck at about 5:00 P.M. and proceeded to make the necessary repairs. After making the repairs the deceased had a few drinks and played a game or two of pool and at about 6:45 P.M. the deceased left with his truck. The fatal accident occurred shortly thereafter at a location on the road between the tavern where the repairs were made and the office of the employer.' Tests following autopsy disclosed the presence of 0.21% Alcohol in the brain. The board held 'that the deceased on March 27, 1966 made repairs to the heating equipment at Welcome Inn while in the service of the employer * * * that the activities of the deceased during the interval between about 5:00 P.M. and shortly after 6:45 P.M. when the claimant was at the premises where the repairs were made does not constitute abandonment of the employment and that in any event at the time the fatal collision occurred, the deceased was back on the return trip * * * that the fatal injury sustained arose out of and in the course of employment.'

Appellants' contentions are largely factual. Thus, they attack as 'incredible' and 'illogical' the testimony of the witnesses, including that of the tavern proprietor, who said that when the heating unit failed and he had no heat he sent for decedent to make repairs; but the credibility of the testimony and its weight were, of course, for the board. Appellants urge, additionally, that 'Decedent deviated from his employment after alleged repair job' and that his 'indulgence in personal activities after completing alleged service call, constituted abandonment of his employment.'

Affirmance is mandated, however, by a massive body of decisional law sustaining awards involving service employees and other outside workers pausing for relaxation, sometimes for some few hours, sometimes while over-imbibing, before resuming the homeward journey, frequently, as here, with the employer's business vehicle. Closely in point is Matter of Fonze v. Stuyvesant Oil Burner Corp., 10 A.D.2d 761, 197 N.Y.S.2d 496; and see Matter of Mansfield v. General Adj. 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 Church v. Worthington Corp., 12 A.D.2d 571, 207 N.Y.S.2d 506, mot. for lv. to app. den. 9 N.Y.2d 609, 201 N.Y.S.2d 1025, 172 N.E.2d 293; Matter of Cliff v. Dover Motors, 11 A.D.2d 883, 202 N.Y.S.2d 914, affd. 9 N.Y.2d 891, 216 N.Y.S.2d 703, 175 N.E.2d 831; Matter of Durkee v. Atlantic Refining Co., 27 A.D.2d 773, 277 N.Y.S.2d 184.

As has been indicated, appellants claim, first, a deviation from the employment, and, second, its abandonment. The first contention overlooks, as does the second, the fact that decedent was an outside worker returning from a service call while operating a company truck which was itself an instrumentality of the employment and the agency that brought about his death.

Appellants predicate their remaining contention, that of abandonment, upon Matter of Pasquel v. Coverly, 4 N.Y.2d 28, 171 N.Y.S.2d 848, 148 N.E.2d 899, which seems to us inapposite, involving, as it did, a long homeward trip begun at 3:30 A.M. after a night spent in varied personal activities, with little, if any, sleep. ^* Indeed, appellants appear to misapprehend the thrust of Pasquel, it being clear that the discussion in their brief of decedent's 'indulgence in personal activities' relates to his indulgence in intoxicants, so that his intoxication 'was the end result of the indulgence' and 'explains' his fatal accident. Again, appellants urge that decedent's intoxication 'contributed heavily to his fatal occurrence, if not entirely.' Intoxication bars recovery of compensation only 'when the injury has been solely occasioned by intoxication' (Workmen's Compensation Law, § 10) and the presumption is that 'the injury did not result solely from the intoxication of the injured employee' (Workmen's Compensation Law, § 21, subd. 4). Here, there is no claim that intoxication was the sole cause of the accident and under the framed issues there can be no such claim; but appellants--urging that intoxication 'contributed heavily'--seek to accomplish by indirection a result prohibited by the statute. As we said in a similar case, 'while appellants do not directly charge decedent with intoxication, the clear inference from their argument is that the personal activity to which they attribute the accident was his consumption of alcohol, and no other personal activity seems to be suggested as a causative factor. Even proven intoxication will not bar award unless it is found to have been the sole cause of the accident * * * and the acceptance of appellants' apparent theory of causation would, in effect, vitiate that statutory provision.' (Matter of O'Connor v. Johnson & Johnson, 12 A.D.2d 846, 847, 211 N.Y.S.2d 1, 3, mot. for lv. to app. den. 9 N.Y.2d 611, 215 N.Y.S.2d 1025, 174 N.E.2d 924; and see Matter of Sullivan v. L'Heureux, 18 A.D.2d 1116, 239 N.Y.S.2d 56, mot. for lv. to app. den. 13 N.Y.2d 595, 242 N.Y.S.2d 1025, 191 N.E.2d 680). The result is the same and the difference no more than semantic if, in mistaken reliance upon Pasquel (supra), it be argued that decedent's personal activites increased the risk of the return trip; for, in this case, unlike Pasquel, the only personal activity that could reasonable be deemed to have increased the hazard was decedent's imbibing; and it seems clear that if intoxication must, under the statute, be ruled out as a contributory Cause, there exists even less justification for giving it effect as a contributory Risk. Upon this record, the board's factual determination cannot be disturbed.

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

HERLIHY, COOKE and GREENBLOTT, JJ., concur.

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

REYNOLDS, Justice (dissenting).

Sometime shortly before 5:00 P.M. on Sunday, March 27, 1966, while at the fire house of the Ridge Fire Department where he had been most of the day, decedent was allegedly summoned to check a heating system he had installed in a tavern. It is claimed that he arrived at the...