Claim of Motto v. Cosmopolitan Tourist Co.

278 A.D. 597, 101 N.Y.S.2d 873, 1951 N.Y. App. Div. LEXIS 4066

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1951
• Status: Published

Opinion

Appeal by an employer and insurance carrier from a decision and award to claimant of disability compensation made by the Workmen’s Compensation Board. The employer was engaged in the business of operating busses and claimant was in its hire as one of the chauffeurs. On the morning of April 24, 1948, claimant drove one of the employer’s busses, which had been chartered by a private party, from New York City to Bay Shore, Long Island. There the passengers boarded a seagoing vessel for a deep-sea fishing expedition. Claimant’s duty was to await their return in the afternoon and be in readiness to pilot the bus on its return to the city. He had been so engaged by his employer for .some twelve years. During his waiting period he was paid at an hourly rate which was somewhat less than when driving the bus, and he was free to employ his time as he chose. With the knowledge and permission of his employer, his settled, long-continued custom and practice was to join and participate with his passengers in the deep-sea fishing excursion. Having done so on the day aforesaid, he met with injury on hoard the vessel. The only question is whether his injury may fairly be said to have arisen out of his employment. The nature of claimant’s employment naturally gave rise to the disputed activity wherein he was injured. His participation therein was in pursuance of a long-continued, settled practice and custom, known to and sanctioned by his employer. His indulgence therein was in the course of his employment and under the circumstances disclosed by the evidence it may fairly be said that the risk which brought him injury arose out of his employment. (Matter of Ind. Comr. [Signin'] v. McCarthy, 295 ÍT. Y. 443; Matter of Ognibene v. Rochester Mfg. Co., 298 N. Y. 85; Matter of Block v. Camp Shows, 272 App. Div. 980, motion for leave to appeal denied 297 N. Y. 1032. See, also, Matter of Di Salvio v. Menihan Go., 225 N. Y. 123, 127.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Poster, P. J., Heffernan, Brewster, Bergan and Coon, JJ.