Claim of Teles v. Westbury S & S Concrete Inc.

50 A.D.2d 954, 375 N.Y.S.2d 668, 1975 N.Y. App. Div. LEXIS 11898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1975
• Status: Published

Opinions

— Appeal from a decision of the Workmen’s Compensation Board, filed October 10, 1974. Claimant and one Lopes resided at the same address and worked as carpenters for a common employer. They alternated the use of their respective automobiles each week as a means of transportation to and from the job site. When another coworker was injured on the job, claimant’s foreman directed him to follow the ambulance to the hospital and return this injured worker when his medical treatment was completed. Using Lopes’ vehicle, claimant followed these instructions, returning about five minutes after termination of his normal shift, and discovered that everyone had left the site for the day. Lopes had received a ride home from another employee and the injured worker departed in his own vehicle. Claimant was thereafter injured as the result of an automobile collision on his regular route home driving the Lopes vehicle. The employer and its insurance carrier appeal from the decision awarding him compensation benefits contending that the accident did not arise out of and in the course of claimant’s employment. The appellants conceded in their application for review from the referee’s decision that the employer had requested the claimant to use Lopes’ vehicle for the purpose of returning an injured coemployee to the work site. Also, the appellants stated orally at the hearing before the board panel that the employer had directed the claimant to use the Lopes vehicle. The record contains substantial evidence to support the board’s finding that the claimant had been instructed to use the Lopes vehicle. It is well established that when an employee is directed to perform a specific errand for the employer, he is in the course of his employment until the errand is completed unless there is a substantial deviation from the errand. (Matter of Averick v Standard Ind., 46 AD2d 715; Matter of O’Rourke v Manuet Rest, 43 AD2d 659, 660.) The errand implicitly required the claimant to return the vehicle that he was using to its owner and the fact that the errand would be completed at the same time that the claimant reached his home is fortuitous. Decision affirmed, with costs to the Workmen’s Compensation Board. Herlihy, P. J., Sweeney and Main, JJ., concur; Kane and Larkin, JJ., dissent and vote to reverse in the following memorandum by Kane, J.