Claim of Gross v. Davey Tree Expert Co.

248 A.D. 838, 290 N.Y.S. 168, 1936 N.Y. App. Div. LEXIS 7566

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 1936
• Status: Published

Opinion

The employer had a contract with the New York Telephone Company to trim trees along its line. Claimant was engaged in this work for the employer. The truck used by claimant in his employer’s work was stored over the week end on the premises of Mrs. McMillan. As claimant came to work on Monday morning Mrs. McMillan was unable to start her car standing in the yard, and she asked claimant to push her car with the truck, in the hope of starting it. Claimant did so, and continued to push the car and otherwise assist Mrs. McMillan along the highway until he had gone a distance between two and three miles. And while standing on the running board of her car and making efforts to overcome the difficulty, the door which he was clutching opened, and he fell to the ground, and was injured. The evidence shows that claimant received instructions from the employer “to do everything possible to obtain good will for the Telephone Company on the job; ” and that pursuant to these instructions it was his practice to do small favors to that end. It may be that the claimant was unusually generous in his efforts in behalf of Mrs. McMillan, but it does not appear that any definite limits were placed on the favors which claimant was authorized to bestow. Award affirmed, with costs to the State Industrial Board. Hill, P. J., MeNamee and Bliss, JJ., concur; Rhodes, J., dissents; Crapser, J., dissents, and votes to reverse the award and to dismiss the claim.