Claim of Westlake v. Emmick

16 A.D.2d 726, 226 N.Y.S.2d 774, 1962 N.Y. App. Div. LEXIS 10342

Opinion

Appeal from an award of death benefits. The decedent was an automobile salesman, spending part of his time in the salesroom and the remainder calling upon prospective customers. He was furnished a “demonstrator” automobile which he kept at his home and used for business and personal reasons. On August 28, 1958, he left his home intending later to meet a prospective customer at the employer’s place of business and to perform a personal errand. After performing both missions and while on his way home, he suffered a coronary attack, lost control of his automobile and sustained fatal injuries. In the automobile he had a salesbook and literature concerning both new and used automobiles. The appellants contend that the death of the decedent did not arise out of and in the course of his employment. The evidence supports the finding of the board that the deceased, at the time of his death, was engaged in the employer’s business and that any personal mission was incidental to such employment and did not alter the relationship of employer and employee. (Matter of Perlmutter v. Duchess Hosiery Corp., 5 A D 2d 912; Matter of Cliff v. Dover Motors, 11 A D 2d 883, affd. 9 N Y 2d 891; Matter of Mahoney v. Michaels Stern & Co., 9 N Y 2d 931.) Decision and award unanimously affirmed, with one hill of costs to respondents filing briefs. Present—Bergan, P. J., Gibson, Herlihy, Reynolds and Taylor, JJ.