
    In the Matter of the Claim of Alice S. Hille, Appellant, v. Gerald Records et al., Respondents. Workmen's Compensation Board, Respondent.
    Argued October 9, 1968;
    decided November 13, 1968.
    
      Abraham Markhoff and Fred Kalb for appellant.
    Decedent’s death on August 31, 1962 arose out of and in the course of his employment by respondent employer. The board, in so holding, did so based on its factual determination that decedent was both an inside and outside employee. With substantial evidence to support this determination, the Appellate Division’s reversal of it was error as a matter of law. (Matter of Bennett v. Marine Works, 273 N. Y. 429; Matter of Glickman v. Greater N. Y. Taxpayers, 305 N. Y. 431; Matter of Sienkiewicz v. Buffalo Lite Vent Corp., 25 A D 2d 795,18 N Y 2d 577; Matter of Monahan v. Remington 
      
      Rand, 9 A D 2d 810, 7 N Y 2d 709; Matter of Blackley v. City of Niagara Falls, 284 App. Div. 51; Matter of Tiernan v. Potter, 281 App. Div. 787; Matter of Buholtz v. Kearse, 266 App. Div. 703, 291 N. Y. 694; Matter of Davis v. Newsweek Mag., 305 N. Y. 20; Matter of Macaluso v. Alexander, Shumway & Utz Co., 11 A D 2d 838, 8 N Y 2d 708.)
    
      John H. Roberts for Gerald Records and another, respondents.
    Deceased’s death on August 31, 1962 at about 4:30 a.m. did not arise out of or in the course of his employment; the testimony was inconclusive in support of the board’s determination and the board’s findings were not supported by any evidence much less substantial evidence and the decision of the Appellate Division should not be disturbed. (Matter of Glickman v. Greater N. Y. Taxpayers, 305 N. Y. 431; Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Kelly v. Nichols, 199 App. Div. 870; Matter of Benjamin v. Kaplan Elec. Co., 8 A D 2d 239; Matter of Gifford v. T. G. Patterson, Inc., 222 N. Y. 4; Matter of Kaplan v. Zodiac Watch Co., 27 A D 2d 680, 20 N Y 2d 537; Matter of Elwood v. Herkimer Cent. Schools, 20 N Y 2d 869.)
   Chief Judge Fold.

The sole issue on this appeal is whether the death of an employee in an automobile accident on his way home from work arose out of and in the course of his employment.

Gerald Hille, the president of Gerald Records, Inc.—with offices in New York City—lived in Madison, New Jersey. The company was engaged in recording and releasing phonograph records, and Hille, among other duties, arranged the recordings and edited tapes. On August 31, 1962, at about 2:30 a.m., he finished a recording session at a private recording studio, rented by the corporate employer and located not far from the company’s office in Manhattan. There was no evidence as to the time Hille left the studio but some two hours later, at about half past four, the car in which he was homeward bound hit a utility pole near Summit, New Jersey. He was killed almost instantly.

There is evidence, although it is somewhat indecisive, that Hille had tapes with him at the time of the accident. He did, however, have at home a tape recorder belonging to his employer and he frequently used it in connection with his job. Thus, the company’s director of sales and promotion declared that it was “ part of Mr. Hille’s job ” — and a common practice among recording companies — to take a tape home, listen to it “ for playbacks and mistakes ” and thereafter return it to the studio for editing. The company’s vice-president—who also lived in New Jersey*—was even more specific, testifying that he and Hille “ used to listen to these recordings all the time ” at Hille’s home; that, “ many times after the recording session was over, he used to take these tapes home with him, and he had a little studio [at] home with a tape recorder, and used to listen to them the next day * * * and I used to go there and correct them one way or the other.”

Although dissatisfied with the evidence adduced — at one point describing it as “inconclusive ” — the Workmen’s Compensation Board, nevertheless, made an award in the claimant’s favor, expressly finding that Hille’s work and duties required him “to be an inside and outside worker, that he was in the course of his employment while traveling home at the time of the accident * * * that said accident arose out of, and in the course of his employment, and that death is causally related thereto.” The Appellate Division disagreed, dismissing the claim. Remarking that Hille had taken tapes home with him only “ on occasion ”, it was strongly influenced by its conclusion that there was no evidence that he had any in his possession on the night of the accident. In our judgment, this represents altogether too narrow a view of the law.

“Outside employees” constitute a class of workers, this court declared some years ago, who, “ hav[ing] no fixed place in which their work is done” (Matter of Bennett v. Marine Works, 273 N. Y. 429, 431), come within the exception to the rule that accidents occurring off the actual employment premises, on the way to or from work, are not compensable. “ Examples ” of outside workers, the court went on to say in the Bennett case (273 N. Y., at pp. 431—432), “ are traveling salesmen, collectors and solicitors. * * * Following the liberal approach in dealing with this branch of the law, the decisions have * * * held that employment begins when travel from home towards the first customer commences. * * * Compensation also has been granted in the converse situation where salesmen were on their way home from visiting customers, or from the office of their employer.”

Concededly, Hille was not a salesman or, in the strict sense of the term, an outside worker but he did, and was privileged to, perform his tasks either in his office, in an independent outside studio or at his home, and the rationale underlying Bennett and similar decisions is applicable to the present case. If, as one authoritative writer in the field has put it, the ‘' work duties associated with the employee’s home are such that it can genuinely * * * be said that the home has become part of the employment premises ”, an accident occurring between work and home is compensable (1 Larson, Workmen’s Compensation Law [1966], § 18.31, p. 294.33). This conclusion is but a logical outgrowth of the well-established “mixed” or “dual purpose ” trip doctrine announced in Matter of Marks v. Gray (251 N. Y. 90) which, as Professor Larson points out (op. cit., § 18.31, p. 294.31), affords a “ most reliable guide ” in determining whether an accident sustained in the course of a “ going and coming” trip between office (or other premises of the employer) and home is employment-connected. In order to meet the mixed purpose test, there must be either a specific work assignment for the employer’s benefit at the end of the particular homeward trip or so regular a pattern of work at home that the home achieves the status of a place of employment. “ [T]he quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home” have been suggested as helpful “indicia” for determining such status (Larson, op. cit., § 18.32, p. 294.37).

In the case before us, despite the uncertain character of the proof that Hille had tapes with him on the night in question, there is ample evidence from which the board could permissibly find that he actually used his home as “ a place of employment ” to carry on his job. He regularly took tapes home and there worked on them, sometimes by himself, sometimes with another employee; he had work equipment at his home, in the form of a recorder owned by the corporation; and it was necessary and beneficial to his employer for him to perform duties at home in view of the lateness and irregularity of his working hours as well as of the custom in the trade. Accordingly, Hille’s trip met the test of the “ mixed ” or “ dual ” purpose doctrine. And this is, in effect, what the board found, even though it chose to characterize Hille as an “ inside and outside worker ”.

It is appropriate, perhaps necessary, to add that the mixed or dual purpose test must be applied with caution to professional employees, such as teachers, doctors, lawyers and the like, who have frequent occasion to carry home work of varying degrees of importance and substantiality. The going and coming” rule — the caveat is contained in Larson’s treatise (op. cit., § 18.32, p. 294.39)—is not to be subjected to “a process of gradual erosion, through the device of finding some tidbit of work performed at home ”. We run no such danger here; the record furnishes substantial evidence that Hille’s home was truly a place of employment.

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the determination of the Workmen’s Compensation Board reinstated.

Scileppi, J. (dissenting).

I dissent and vote to affirm.

As a general rule, in order that an injury arise out of and in the course of employment within the meaning of the Workmen’s Compensation Law, it must have occurred on the employer’s premises, and injuries received while going to and from work are not compensable. The reason for this rule stems from the basic purpose of the Workmen’s Compensation Law to shoulder on industry the expense incident to the hazards of industry. As one court has aptly put it, the reason for the Workmen’s Compensation Law ‘ ‘ is that in a modern industrial state the risk of injury to workmen while engaged in the employer’s service is a social risk, chargeable against the business itself ” (Lindebauer v. Weiner, 94 Misc. 612, 615; emphasis added). Since industry must carry the burden, there must then be some causal connection between the employment and the injury or it must have had its origin in some risk incident to or connected with the employment, or have followed from it as a natural consequence.

As the majority has noted “ outside employees ”, such as salesmen, collectors and solicitors — workers having no fixed place in which their work is done — constitute a class of workers who come within the exception to the general rule that accidents occurring off the employer’s premises are not compensable. The reason for this exception is that the “ outside employee ” by the very nature of his job is “in the course of employment ’ ’ when outside the fixed premises of the employer and by the very nature of the job is subjected to hazards — such as vehicular accidents — which are unconnected with the fixed employment premises.

In the instant case the decedent had attended a recording session which ended at about 2:30 a.m. At approximately 4:30 a.m. the decedent’s car struck a pole while en route to his home, and he suffered fatal injuries. In an effort to obtain an award, the claimant attempted to prove that her husband’s duties as president of Gerald Records, Inc. were such that he was both an “ inside ” and an “ outside ” worker. No evidence, however, was adduced to sustain her position. Indeed in its memorandum decision of March 15, 1966 the board stated that it found the record as to decedent’s work activities inconclusive, and it, therefore, restored the case to the Referee Calendar for additional testimony. Notwithstanding that the claimant furnished no additional evidence the board, for some mystifying reason, reversed itself and made an award in claimant’s favor, finding—upon the very same inconclusive record — that decedent was an inside and outside worker; ‘ ‘ that he was in the course of his employment while traveling home at the time of the accident * * * that said accident arose out of, and in the course of his employment, and that death is causally related thereto ”. The Appellate Division dismissed the claim holding that “ The determination made is not supported by any evidence, much less substantial evidence ”.

On appeal to this court the claimant argues that the record supports the board’s finding that decedent was an outside worker.

The majority concedes that this argument is without merit, but rests its decision on the theory that an accident occurring between work and home is compensable if 1 ‘ the work duties associated with employee’s home are such that it can genuinely "vnd not fictitiously be said that the home has become part of the employment premises” (1 Larson, Workmen’s Compensation Law [1966], § 18.31, p. 294.33).

In my opinion this rule is inapplicable to the facts of this case. There is no evidence in this record upon which to base a finding that decedent’s work activities were such that his home genuinely became part of the employment premises.

The majority states that the decedent regularly took tapes home to work on them there. The evidence with respect to this, however, was at best inconclusive. The sales manager, who had only been with the company for three months, did testify that it was the practice of some companies to have a man take a tape home after a recording session to check it for mistakes and that it was part of decedent’s job to do this. The witness, however, did not say that this was done regularly by decedent or that it in fact was even necessary. Neither did he testify as to how often this was done. Surely if recording sessions were held only once a month and thus decedent worked at home only once a month, it could not be said that his home genuinely became part of the employment premises.

The company’s vice-president testified that decedent would 1 ‘ many times ’ ’ take tapes home with him after recording sessions were over and that he (the witness) used to listen to recordings “ all the time ” at decedent’s home. This testimony is not sufficient in my opinion to support a finding that decedent’s home was transformed into a work situs. Moreover, while it may be true that in the past the witness had worked on tapes “many times ” at the decedent’s home, he testified that he had not attended a recording session for “ about six or eight months before ’ ’.

The majority also states, in an effort to bring this case within the rule, that “it was necessary, and beneficial to [decedent’s] employer for him to perform duties at home in view of the lateness and irregularity of his working hours as well as of the custom in the trade ”. Simply put, there is not one iota of evidence in the record to support this statement. Nowhere in the record is it shown that, it was necessary or required for decedent to work at home. Indeed even the majority states that decedent ‘ ‘ did, and was privileged to, perform his tasks either in his office, in an independent outside studio or at his home ” (emphasis added). Neither is there any evidence to show that it was beneficial for the corporation to have decedent work at home on the tapes.

The only evidence in this respect was the testimony of the sales manager that some companies would check and edit the tape the morning after a recording session and others would have a man take the tape home and work on it that night. I would add that as a matter of common sense it would seem that, if a recording session ended in the early morning hours, the tape would be checked and edited — barring some emergency rush—the following morning, when it could be assumed that after a night’s sleep the person charged with the responsibility of editing would be fresh and mentally alert.

Thus, from all that appears in this record it was only a matter of personal convenience that decedent occasionally edited tapes in his home and, therefore, contrary to majority’s position, the board could not permissibly find that decedent’s home had genuinely became a work situs.

My difference with the majority, however, is more fundamental than whether the record supports a finding that decedent’s home had become a work situs, for in my view, even if we assume it had, a reversal here would nevertheless be unwarranted, unfair, and contrary to the basic purpose of the Workmen’s Compensation Law.

Under the far too broad rule enunciated by the majority any accident occurring between work and home would be compensable even though it could not in fact be said that the trip had been in part motivated by business reasons.

Thus, under the majority’s rule, an accident occurring to an employee homeward bound solely to attend his daughter’s birthday party would be compensable. This simply' is not the law. Judge Cardojzo, in enunciating the test to be applied under the dual purpose trip doctrine, specifically said: “ If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk ” (Matter of Marks v. Gray, 251 N. Y. 90, 94).

It seems clear from the quoted language that for the dual purpose doctrine to be applicable there still must be some proof —■ other than the mere fact that the home has become a business situs — that the trip home was in part business motivated.

In discussing the dual purpose trip doctrine, Professor Larson recognizes two basic categories of cases: “In some cases, the establishment of the home as a business situs can best be undertaken by demonstrating a clear business use of the home at the end of the specific journey during which the accident occurred. In others, there may be no evidence that on that particular night the claimant was going to perform some particular work; in these cases the evidence must take the form of proof that the regularity of work at home and other factors endow the home with the continuing status of a work place, so that any going and coming journey is covered.” (1 Larson, op. cit., § 18.31, p. 294.35.)

It seems to me, however, that there is a third category — one in which the home is established as a business situs, but it is also shown or the only logical inference to be drawn from the evidence is that the trip home was in fact personal and not for business reasons at all.

It appears to me that the instant case falls within the third category. The evidence relied upon to establish decedent’s home as a business situs was to the effect that he sometimes took tapes home with him after recording sessions. At no other time was his home used as a business situs. On the night that he was killed, he was going home after a recording session, but there is no probative evidence that he had tapes with him. The only logical inference to be drawn from the record is that this particular trip had no business purpose at all and that decedent was simply going home to sleep after a long day’s work. Under the circumstances it cannot be said that decedent was killed in an accident arising out of and and in the course of his employment. Surely not every accident occurring between work and home is compensable merely because the home is a business situs. It may well be that there is a conclusive presumption in claimant’s favor where the home is established as a business situs and there is no evidence one way or the other as to the motivation for the trip. But in a case such as this, where the evidence indicates that the trip was personal, recovery should not be allowed.

The majority cites several cases in a footnote which presumably support their theory. A review of these cases indicates that the contrary is true.

Thus, in Matter of Tiernan v. Potter (281 App. Div. 787), a physician’s nurse who was injured while on the way home was granted an award. However, the evidence indicated that she was required to perform secretarial duties at home and on the occasion of her accident she was carrying stenographic notes for transcription.

In American Mercury Ins. Co. v. Britton (314 F. 2d 285) compensation was granted where a local claims adjuster was killed while walking from his employer’s office to his room carrying files on which he intended to work when he arrived at his room. Moreover, it was shown that the employer knew that decedent worked at home and required him to do so.

Compensation was awarded in Inglish v. Industrial Comm. (125 Ohio St. 484) to a school teacher who was killed by an automobile while he was on his way home carrying examination papers to be corrected because there was no place at the school where he could do this work. Thus in Inglish it was in fact necessary for the teacher to work at home and in fact he was going home for that purpose.

Lang v. Board of Educ. (70 S. D. 343) is not at all in point because compensation was awarded on the theory that claimant was an outside worker whose duties subjected him to the risks of travel between his various places of employment.

The other two cases relied upon by the majority—Matter of Sienkiewicz v. Buffalo Lite Vent Corp. (25 A D 2d 795, mot. for lv. to app. den. 18 N Y 2d 577) and Matter of O’Connor v. Johnson & Johnson (12 A D 2d 846)—are not in point either for each of these cases was decided on the outside worker ” theory.

The only New York case which I have been able to find dealing directly with the dual purpose trip doctrine is contrary to the position taken by the majority. Thus in Matter of Winters v. Valley Farm Food Sales (16 A D 2d 1010) compensation was denied to the claimant whose husband was killed in an automobile accident while en route home notwithstanding that the evidence showed that he frequently worked at home with his employer’s knowledge, although not at its direction, and in fact had corporate papers with him when he was killed. The court held that there was no direct proof that the trip home had. a dual purpose.

Since the majority has relied heavily upon Professor Larson’s treatise, it is not amiss to note that in every case cited therein in which recovery was allowed there was direct proof that the claimant was in fact going home to do work, or at least, unlike the present ease, there was no proof to the contrary.

In sum, I am of the opinion that the majority has sustained an award which is unsupported by evidence and upon a theory which is not only unsound but which runs contrary to settled law and places upon the industrial community of this State an intolerable burden, not contemplated by the Workmen’s Compensation Law.

Judges Burke, Bergan and Keating concur with Chief Judge Fuld; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judges Breitel and Jasen concur

Order reversed, etc. 
      
      . See, also, Matter of Tiernan v. Potter (281 App. Div. 787); American Mercury Ins. Co. v. Britton (314 F. 2d 285); Inglish v. Industrial Comm. (125 Ohio St. 494); Lang v. Board of Educ. (70 S. D. 343); cf. Matter of Sienhiewicz v. Buffalo Lite Vent Corp. (25 A D 2d 795, mot. for lv. to app. den. 18 N Y 2d 577); Matter of O’Connor v. Johnson & Johnson (12 A D 2d 846).
     