Claim of Graves v. Tide Water Oil Sales Co.

249 A.D. 911 | N.Y. App. Div. | 1937

Jerome C. Graves was employed by the Tide Water Oil Sales Company at Warrensburg as district manager. His business was to call on “ competitive ” customers and induce them to buy from his employer. He was also required to sell the products of the employer, and collect the money due it. As district manager he was to pursue any other activities that would contribute to the benefit of his employer. The other employees in the district were subject to Ms direction. In the pursmt of Ms duties he traveled over the district, wMeh comprised a large territory, and used gn automobile in Ms -work. He had no regular horns, and worked evemngs as well as during the day. On June 10, 1933, at two-thirty o’clock in the morning, he was killed as the result of an automobile accident on Mghway No. 9, the route necessarily traveled by Mm in reacMng Ms home from Ms work. He left a wife and a dependent cMld, and also a father who claims to be dependent. On the day of the accident the deceased called on various customers at different points in Ms district, and made collection of a small amount of money. He then attended the dinner given to one of the employees of the district who was being transferred to another territory. Nearly all of the attendants at the dinner were employees- of the company. There the deceased talked over the business of the company and turned over to the eMef clerk the cheek he had collected during the day. At the time of the accident he had with Mm orders for the employer’s products, wMeh were filled later. Whether the place where the dinner was held was directly on the route home does not clearly appear; and if it were not, the deceased had again returned to Ms regular route home before the accident happened. It was necessary for Mm to be at the place of collision in order to reach Ms home from Ms work. The Industrial Board demed death benefits, as appears from its memorandum of decision, because the dinner was not arranged or paid for by the employer; because there was no evidence that the deceased, as manager, directed that the dinner be held, but that it was a voluntary gathering of employees to show their good will for their associate, who was leaving them. As above noted, the deceased was a traveling salesman, with no regular hours, and was on duty while on Ms way home from the place of Ms employment, and it was necessary for Mm to be at the place where he was killed in order to reach Ms home. (Theyken v. Diplomat Products Co., 243 App. Div. 822; affd., 268 N. Y. 658.) Decision reversed, and the claim remitted to the Industrial Board, with costs to the claimant against the employer and insurance carrier. Hill, P. J., McNamee and Crapser, JJ., concur; Rhodes and Bliss, JJ., dissent, and vote to affirm.