Claim of Harby v. Marwell Bros.

Van Kirk, J.: The deceased was a traveling man, working on commission, for Harwell Brothers, Inc., wholesale grocers. He was killed on December 2, 1921. The question is whether he received the injuries which caused death while in the course of his employment; and this presents the question, when did his work begin? The case is quite different from those cases where the claimant had a located place of employment and did not begin his work until he reached that place. Deceased’s home was in Arlington,' N. J., and he was accustomed to return home each night. He sold to jobbers in Jersey City, Hackensack, Passaic and other towns in New Jersey, going to his employer’s New York office but once a week. He was killed while going, with his sample case, the badge of his employment, from his home to take a train to visit his customers. Daily he went to one town or another; his place of work was migratory. His contract was to travel to see customers. If his work did not begin until he reached the town in which he was to visit a customer, the question remains, at what point in that town did it begin? Certainly not at the corporate limits, or the station. He would probably travel into the town by the same conveyance by which he reached the limits, and when he reached the station he had still further to go to reach his first customer. Did he begin work when he reached the business place of the first hoped-for customer? And, if so, did his work cease when he had finished with that customer and not begin again until he reached the next in the same town? It seems logically we must so hold, if we hold that his work did not begin until he reached his customer’s place of business. But we have before held the contrary. (Cases cited below.) By the Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 3, subd. 4, as amd. by Laws of 1917, chap. 705) “ 1 employee ’ means a person engaged in one of the occupations enumerated in section two, or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer; * * This provision has since been re-enacted in subdivision 4 of section 2 of the present Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1922, chap. 615), which took effect on July 1, 1922, and now refers to occupations enumerated in section 3 of the present statute. The deceased was not working at the plant of his employer, but was “in the course of his employment away from the plant.” In the employer’s first report of the injury is this: “Was he injured in regular occupa [527] tion? A. Yes.” In Kass v. Hirschberg, Schulz & Co. (191 App. Div. 300) this court held that a traveling salesman, who was on one of his trips, but who was injured while in the hotel at which be stayed, through the negligence of the management of the hotel, was not injured, while in the course of his employment. In Hospers v. Hungerford-Smith Co. (194 App. Div. 945; affd., 230 N. Y. 616) the claimant, a traveling salesman, was injured while traveling, in Missouri, in an automobile, which skidded. In Fuld v. Solomon Co. (197 App. Div. 9.11) the claimant was a buyer for a manufacturing establishment and was struck by a bicycle while passing along the street to reach a seller. In Goater v. D’Olier (198 App. Div. 959) the claimant was traveling for his employer in Pennsylvania; he was going to the railroad station to procure a timetable preparatory to returning home and was hit by an automobile in the street. Roberts v. Newcomb & Co. (201 App. Div. 759) is the Wall street explosion case. Roberts was a salesman, going through the streets of New York to take orders, when the explosion occurred. In Habbershaw v. Shepard Co. (197 App. Div. 910) the claimant was a traveling man and was assaulted in the evening when carrying a satchel of tools from the railroad station to a hotel in Providence, R. I. In each of the above cases, except the first, the award to the claimant was affirmed. A traveling man, working upon commission, begins his work when he leaves his home, or the place where he lives or passes the night, to visit directly a customer. If he starts out on some matter for himself, though intending later to see a customer, his work does not begin until he starts for his intended customer. He makes these trips to his customers directly under the employment; his traveling is necessarily contemplated by his employer and by the insurance carrier. His place of work is not limited by the employer’s premises, but he is in the course of his employment away from the plant of his employer, doing his duty to the employer, at all times while he is directly seeking customers for his employer. The award should be affirmed. H. T. Kellogg, Acting P. J., Hinman and Hasbrouck, JJ., concur; Kiley, J., dissents, with an opinion.