Claim of Frank v. Economy Sales Co.

249 A.D. 885, 292 N.Y.S. 823, 1937 N.Y. App. Div. LEXIS 10069

Opinion

Appeal by employer and insurance earner from an award of compensation under the Workmen’s Compensation Law. The appellants urge that the accident did not arise out of and in the course of claimant’s employment. Claimant, a young lady, was engaged in outside saleswork, directing a campaign for a club at Freeport, Long Island. She and her employer had just closed the campaign, working sixteen and a half hours that day, and at four o’clock in the morning her employer was taking her to her home in New York in an automobile he had borrowed for the purpose of going home himself. There was no train at that hour. The ear stalled on Merrick road and while the employer went for assistance, it was struck by another car and claimant was injured. Award affirmed, with costs to the State Industrial Board. McNamee, Bliss and Heffeman, JJ., concur; Rhodes, Acting P. J., dissents, and votes to reverse the award and to dismiss the claim on the ground that claimant was not a traveling saleswoman but was employed as a plant worker; Crapser, J., dissents, and votes to reverse the award and to dismiss the claim, on the ground that the accident did not arise out of and in the course of the employment.