Grathwohl v. Nassau Point Club Properties, Inc. , 214 N.Y.S. 496 ( 1926 )

H. T. Kellogg, J.

The employer was the proprietor of a “ real estate development,” as the parties have termed it, on Nassau Point, L. I. The development related to a parcel of land containing 500 acres, the greatest dimension of which measured four miles. Four or five men were employed upon the parcel. The claimant had charge of the development and of the men employed. He was required to visit all parts of the property at least once every day. For this purpose he employed his own Ford automobile and furnished the necessary gasoline and oil. The president of the employer has stated that he would not have employed the claimant had he not owned the car; that, in determining claimant’s wage, the fact that he owned a car, with which to visit the premises, was taken into consideration. The claimant lived about two miles from the premises, at Peconic, where he had his own garage. He made a practice of driving back and forth between his home and his employer’s premises in his Ford automobile. He put up the car, nights, in his own garage. One morning while the claimant was cranking the automobile, in his own garage, preparatory to driving to work, the crank “ lcicked ” and injured his wrist. It is apparent that the claimant would have been in the course of his employment had he been injured while driving his car about his employer’s premises to inspect the same. Again, if the car had been owned by his employer, and the claimant had been required to store it nights in his employer’s garage at Peconic, the claimant would have been in the course of his employment while cranking it at such garage to take it to his employer’s premises. Talcing his employer’s car to his employer’s garage at Peconic would have been the business of his employer. Taking his own car to his own garage at the same place was an entirely different matter. It was so taken by him on the night prior to the accident that he might eat, sleep and rest at home, or otherwise divert himself. That was his own personal business. Because he had thus used it for personal business it was necessary in the morning to crank it and drive it to his employer’s premises. That also was his personal business. If the claimant had been injured while walking to or from his employer’s premises it is certain that he would not then have been in the course of his employment. It can make no difference that in the instance under consideration he was about to journey to his master’s premises upon fast revolving wheels rather than upon his feet. It seems to me that the claimant was not in the course of his employment when he was accidentally injured.

The award should be reversed and the claim dismissed, with costs against the State Industrial Board.

• All concur, except Van Kirk, J., dissenting, with an opinion, in which McCann, J., concurs.