
    In the Matter of the Claim of Marie Pasquel, Respondent, against D. C. Coverly et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted December 4, 1957;
    decided February 28, 1958.
    
      William F. Fischer, Jr., and John J. Duggan for appellants.
    
      
      Louis J. Lefkowitz, Attorney-General (Gilbert M. Landy, John R. Davison and Roy Wiedersum of counsel),
   Van Voorhis, J.

The sole issue on this appeal is whether decedent’s death resulted from accidental injuries sustained while engaged in the regular course of his employment and arising out of such employment. Appellants contend that the determination of the board is without support in fact or law and that decedent did not sustain an accident which arose out of and in the course of his employment.

The facts are not in dispute. Decedent resided in the town of Elmsford, a short distance from White Plains, New York, and was employed as a bookkeeper by appellant Coverly, an agent for Mutual of Omaha, at its office in White Plains. Occasionally decedent was required to visit other offices of Omaha in various cities of New York State for the purpose of explaining the bookkeeping methods and procedure of Omaha to employees in those offices. The decedent apparently used his own car on such trips, but received a salary and bonuses to cover the extra work and traveling expenses.

At about 11 o’clock in the morning on March 2, 1954, as requested by the district manager of the Kingston office of Omaha, the decedent left the White Plains office and drove some 77 miles to Kingston to explain bookkeeping procedures. A male friend of the decedent accompanied him on this trip. They arrived in Kingston about 1 o’clock in the afternoon, decedent finished his work in the office at about 5:00 p.m. and, accompanied by his friend, drove south to keep a dinner engagement at the home of a relative of the decedent just north of New-burgh. After dinner these three men drove to Newburgh, where decedent visited two automobile sales agencies for the purpose of buying a car. After leaving the automobile agencies, the three men went to a tavern where they had several drinks, then returned to the relative’s home, where they played cards until about 3 o’clock the next morning. Between 3:00 and 3:30 that morning, the decedent and his friend left for home. They stopped at a diner and then continued southward toward Elms-ford. At 5:00 or 5:30 o’clock that morning, at a point about one mile from the decedent’s home, at the intersection of Old Saw Mill River Road and Beaverhill Road in Elmsford, the car crashed into a tree and came to rest against a stone wall. The decedent was killed. His automobile was a total wreck.

The Workmen’s Compensation Board and the Appellate Division, in sustaining this award, have proceeded on the basis that since the accident occurred while the employee was returning to his home from a business trip, it necessarily arose out of and in the course of his employment. The circumstance that he combined business with some pleasure would not defeat the claim, unless the accident resulted from risks produced by the personal activities. We think that it did. Here it was the employer’s business which sent the traveler forth upon the journey, but it was not the employer’s business which brought exposure to the perils in consequence whereof he died. In order to be compensable, death or disability must not only have arisen in the course .of the employment, it must also have arisen ‘1 out of ’ ’ the employnaept (Matter of Heitz v. Ruppert, 218 N. Y. 148 Matter of Blackley v. City of Niagara Falls, 284 App. Div. 51). An accident does not arise “ out of ” an employment when it has been occasioned by some merely personal indulgence or gratification. Departure from the course of an employment does not always depend entirely on whether an employee, in making a business trip, was on the route to or from the place where the business was to be transacted. It may also .consist in deviation from the procedure which would ’ normally be followed in accomplishing the business errand, where the death or disability has been the consequence of the deviation. Thus if an employee were sent on a mission which would ordinarily be accomplished in some simple and safe manner, but nevertheless undertook to perform it in some extraordinary and hazardous fashion, there is little doubt that an accident would not be compensable if it arose from the bizarre and dangerous manner of performance which the employee had selected. Thus, for instance, if an employee were sent on an errand requiring him to cross a bridge that could have been done in perfect safety, but, instead, the employee chose for his amusement to cross by walking across a girder of some uncompleted nearby bridge from which he fell into the river, recovery in workmen’s compensation would not be available. Such an accident would not have arisen ‘ ‘ out of ’ ’ the employment, even though, at the time, the employee might have been on the direct route to or from the place of transaction of the employer’s business.

The point is thus expressed in the dissenting memorandum at the Appellate Division by Justice Halpebu : “ The return trip, from 3:80 to 5:00 a.m., after a night spent in personal activities, with very little, if any, sleep, was not the kind of trip in which the decedent would have engaged if he had returned at the conclusion of his work or shortly thereafter. The risks of the trip were substantially increased by the intervening activities and lack of sleep (Larson, op. cit. [on Workmen’s Compensation Law] § 19.61). The trip lost its ‘ identity ’ as part of the decedent’s employment.” This was different from stopping- to' make a personal call or varying the route to or from the place of business for some personal reason whereby fhe risk or hazard is not materially increased. In this instance it is impossible to believe that the decedent’s personal activities are not what created the peril that resulted in his death.

The order appealed from is reversed and the claim dismissed, without costs.

Chief Judge Conway

(dissenting). The sole issue on the present appeal is whether decedent’s death arose out of and in the course of his employment. In resolving that issue we are bound to observe the legislative directive that “ the decision of the board shall be final as to all questions of fact * * * ” (Workmen’s Compensation Law, § 20). Here, the Workmen’s Compensation Board has found that the evidence in the record sustains a finding that decedent suffered an accident arising out of and in the course of his employment. While decedent may have deviated from his course to visit a relative, at the time of the accident he was returning to his home and was in the direct route home.” The Appellate Division has affirmed. Since I do not see how we may properly hold on the record before us that, as a matter of law, decedent was not engaged in the regular course of his employment at the time he met death, I write for affirmance of the order of the Appellate Division.

The employment in which decedent was engaged on behalf of his employer created the necessity for his travel from White Plains to Kingston and for his return from that point. Manifestly, the risk of travel to his home was a necessary counterpart and an incident of his employment and no one can gainsay that decedent’s death would have arisen out of the course of his employment had he left for home immediately after completing his work at the Kingston office and had been killed at that time. The problem in the present ease stems from the fact that the decedent deviated from his course. Nevertheless, unless it may be said, as a matter of law, that the deviation created the peril that resulted in decedent’s death, i.e., that but for the deviation the accident would not have occurred, the widow and minor children of the decedent are entitled to the death benefits awarded them by the Workmen’s Compensation Board. There is nothing in the record to suggest that the decedent was intoxicated at any time. What is more, before starting home decedent slept or rested and then stopped at a diner for food. Certainly reasonable men could conclude, under the circumstances of this case, that the death of the decedent was not a consequence of the deviation and the Workmen’s Compensation Board and the Appellate Division have so concluded. That being so, the determination below must be affirmed.

The order of the Appellate Division should be affirmed, with costs.

Judges Desmond, Ftjld, Fboessel and Bubke concur with Judge Van Voobhis; Chief Judge Conway dissents in an opinion in which Judge Dye concurs.

Order of Appellate Division reversed, the award of the Workmen’s Compensation Board annulled, and the claim dismissed, without costs.  