Van Gee v. Korts

• Decision Date: 19 November 1929
• Citation: 169 N.E. 370,252 N.Y. 241
• Parties: VAN GEE v. KORTS et al.
• Court: New York Court of Appeals Court of Appeals

252 N.Y. 241

169 N.E. 370

VAN GEE

v.KORTS et al.

Court of Appeals of New York.

Nov. 19, 1929.

Action by John Van Gee, as administrator of the goods, chattels, and credits of James E. Van Gee, deceased, against Andrew W. Korts and Lloyd W. Headley. Judgment was entered in the Trial Term in favor of plaintiff against the defendant first named only, the jury having rendered verdict in favor of the last named defendant. Judgment was affirmed by the Appellate Division (225 App. Div. 784, 232 N. Y. S. 903), and defendant first named appeals.

Judgments reversed, and complaint dismissed.

Appeal from Supreme Court, Appellate Division, Fourth department.

Robert C. Winchell, of Rochester, for appellant.

George F. Hixson and Francis J. D'Amanda, both of Rochester, for respondent.

HUBBS, J.

The defendant Andrew W. Korts was the owner of the Korts Dairy in the city of Rochester, engaged in distributing milk throughout the city on trucks. James E. Van Gee, the plaintiff's intestate, was in his employ as a truck driver. There were various other truck drivers employed. The deceased was paid $30 a week. His duty required him to be at the plant some time between 12 and 1 o'clock each morning, in order that he might load his truck and start on his route at 2 o'clock.

At 2 o'clock on the morning of November 21, 1926, Van Gee had not reported at the plant for duty. Raymond Korts, a son of the defendant, was in the employment of his father at the plant, and it was his duty to see that the plant was operated properly. At about 2 o'clock he took the defendant's automobile, which was at the plant, and drove to the home of Van Gee, knocked on the door and awoke Van Gee, who had overslept. He dressed and got into the automobile with Korts, and they started toward the plant, Korts driving. An accident happened, and both were killed.

The jury has found that the accident happened as a result of the negligence of Korts, and that at the time he was in the employ of his father, the defendant, engaged in his business, and that he took the automobile with his father's consent. It was the custom in the dairy business at Rochester, when drivers were late and did not have a telephone in the house, to send a caller affer them. That was the custom at the Korts plant. If a driver overslept and did not report at loading time, some one went after him.

The defendant Korts, by answer, motion,and appropriate requests, raised the question that the plaintiff was not entitled to recover in this action because the accident arose out of and was in the course of the servant's employment, within the meaning of section 10 of the Workmen's Compensation Law (Consol. Laws, c. 67, as amended). The question presented for our determination is whether the deceased employee was, at the time of the accident, in the employment of said defendant, and whether the accident arose in the course of the employment.

There can be no serious question that the deceased was in the employment of the said defendant at the time of the accident. He worked by the week. His day's work commenced between 12 and 1 o'clock in the morning. It was past that time, and at the time of the accident he was on his way to his place of work under the direction of and in a conveyance provided by the master and driven by the master's son, his superior, who was acting within the scope of his employment.

We believe, also, that the deceased employee, at the time of the accident, was within the course of his employment,or within the zone of his employment, and that the trip in the automobile from his home was a benefit to the master incident to the contract for his services.

The line of demarcation between cases where it may be decided that at a particular time a servant on his way to work was within the scope of his employment and cases where it may be decided that he was not is often close and difficult to determine. The principles under which the determination must be made have been stated in various ways, but, when read together, the cases, with fair accuracy, establish a practical working rule. In an English case under the Workmen's Compensation Act, Sankey, L. J., stated the rule as it exists in that country in order to bring the servant within the Compensation Act as follows: ‘Where the workman has not arrived at his employer's premises, or has left them, he must show that he was under an obligation to his employer to be where he was at the time of the accident.’ Anderson v. H. Hickman & Co., Ltd., 21 B. W. C. C. 369 (Oct. 1928); Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778.

When an employee, riding on his own time, chooses his own way of reaching his master's place of business, and there is no obligation on the master to carry him, the trip is not an incident of the employment, even though the master gratuitously permits him to ride in a conveyance owned by him.

‘The employment continues throughout the transportation in case the parties by their contract of hiring positively or inferentially so stipulate. If they do not so stipulate, the employee, when he enters into the process of the transportation, is not under the hiring or control or in the employment of the employer, and is not the employee.’ Matter of Kowalek v. N. Y. Consolidated R. R. Co., 229 N. Y. 489, 128 N. E. 888, 889;Tallon v. Interborough Rapid Transit Co., 232 N. Y. 410, 134 N. E. 327, 21 A. L. R. 1218.

Those cases establish the rule in this jurisdiction that 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...