183 N.E. 863 | NY | 1933
Claimant's husband was employed as a chauffeur by the owner of a taxicab and during his working hours he was accidentally killed. The question is whether his death arose out of his employment.
The cab which he operated was kept overnight at the employer's garage. At five o'clock in the morning the chauffeur called for it, drove it a distance of three blocks from the garage and parked it at a location advantageous for securing passengers. He selected his position at a spot which would be at the head of a line of taxicabs which usually at an early hour formed at this street intersection. Whether all these cabs belonged to the same owner does not appear. For all the record shows, the rivalry to obtain first place in the line existed not only among the drivers but also among different owners of the vehicles. The fares collected by this driver were divided on a percentage basis between him and his employer and, therefore, unless proof were produced that all the cabs which customarily stood in this line were included within one ownership, success in securing first place inured to the mutual benefit of deceased and his employer. Under such conditions, the chauffeur in taking the cab from the garage with the least possible delay was engaged in promoting his employer's interests.
Having acquired this post of precedence, to the probable profit of his employer as well as himself, the deceased returned on foot to the garage for the purpose of receiving his weekly wages. The day was Saturday, which was pay day, and there is evidence by the employer's superintendent that the driver could call at the garage for his *398 check at any time during pay day and that it was his duty to come in for his pay. After his check had been delivered to him he proceeded, again on foot, in the direction of the parked taxicab, when, at a distance of forty or fifty feet from the garage, he was struck by a motor vehicle and fatally injured.
The State Industrial Board and the Appellate Division have ruled that this claim does not come within the provisions of the Workmen's Compensation Law (Cons. Laws, ch. 67). Our decision inMatter of Cunningham v. Hunterspoint Lumber Supply Co.
(
The order of the Appellate Division and the determination of the State Industrial Board should be reversed and the matter remitted to the State Industrial Board for a rehearing, with costs in all courts against the State Industrial Board.
POUND, Ch. J., CRANE, HUBBS and CROUCH, JJ., concur; LEHMAN and KELLOGG, JJ., dissent.
Ordered accordingly.