Post v. Tennessee Products & Chemical Corp.

Reynolds, J. Decedent, a 37-year-old outside salesman covering New England and half of New York State for a manufacturer of chemicals and associated products, was killed in an automobile accident on the Merritt Parkway near Greenwich, Connecticut, at approximately 9:00 p.m., on August 1, 1957. On the day of his death decedent proceeded from his home in Nor-walk, Connecticut, from which he conducted his operation on his employer’s behalf, to the offices of the Society of Plastic Engineers, Inc., in Greenwich. Business discussion was conducted through lunch with one Mr. Bernhard, an officer of the society. On leaving the restaurant at which they had lunch decedent and Bernhard met a Mr. Cowilich, an official of Cleworth Publishing Company, which organization publishes a trade magazine in the plastics field and was desirous of regaining lost advertising from decedent’s employer. At Cowilich’s suggestion all proceeded to his office where, despite the fact that during part of the time the group watched a ball game on television, discussions of a business nature were carried on till approximately 8:30 p.m., when Mr. Cleworth, president of the publishing company, invited the group to dinner. The accident in question occurred on the way to the establishment at which they were to have dinner. Appellants first claim that decedent at the time of his demise was engaged in activities which were outside the scope of his employment and seek to invoke the rule in Matter of Pasquel v. Coverly (4 N Y 2d 28). They assert that decedent’s duties in sales did not include the field of advertising and therefore his association with the Cleworth enterprise was nonbusiness. The record, however, indicates that decedent had a wide latitude in carrying out his duties. His immediate supervisor testified that decedent was authorized to seek out anyone who could have value in selling and that the Cleworth Publishing Company was a valuable contact. Additionally this witness testified that if decedent had submitted a voucher for the dinner at the Cleworth meeting he probably would have honored it. On this state of the record we cannot say there is not substantial evidence on which the board could find decedent was in the course of his employment. Appellants also urge that even if afternoon’s activities were business-related, no business was conducted at [486] dinner and therefore decedent was not in the course of employment while proceeding to dinner. It is sufficient in answer to this argument to point out that decedent never arrived at dinner. The hoard, considering the nature of claimant’s employment and the day’s earlier activities, could reasonably find that business would have been conducted at dinner had the decedent arrived. Appellants also argue that death was due solely to intoxication. The presumption afforded by subdivision 4 of section 21 of the Workmen’s Compensation Law against intoxication being the sole cause of an accident is, however, a heavy burden for appellants to overcome (Matter of Shannon v. American Can Co., 278 App. Div. 546, mot. for lv. to opp. den. 303 N. Y. 1016). It is only where all the evidence and reasonable inferences therefrom allow no other reasonable conclusion than that intoxication is the sole cause that we may interfere with the board’s determination (cf., e.g., Matter of McCall v. Wayne Liq. Corp., 19 A D 2d 758; Matter of Segnini v. Roxbury Ski Center, 14 A D 2d 449; Matter of Cliff v. Dover Motors, 11 A D 2d 883, affd. 9 N Y 2d 891; Matter of Scott v. Schaefer & Sons, 3 A D 2d 775). Here the record indicates that decedent drank cocktails prior to and after lunch, that drinks were available on a help yourself basis during the afternoon session at the Cleworth offices and that decedent’s blood contained 0.29% alcohol by weight, an amount which the medical testimony indicated impaired driving ability. Further there is testimony by Bernhard that he did not consider decedent in fit condition to drive and, therefore, refused to ride with him. Additionally the accident occurred as decedent proceeded westerly, the wrong way, down the passing lane of the easterly two lanes of the Merritt Parkway. How he actually came to be there can never be determined with certainty since decedent and his passenger were both killed as a result of the accident. Appellants contend that since he lived in the area and was familiar with the parkway, intoxication is the only answer. It is apparent, however, that the parkway entrances were so constructed that a driver at night could become confused as to which lanes he was entering. There is no evidence that other than being in the wrong lane decedent was improperly operating his vehicle. It is conceivable that decedent did not realize he was on a single direction highway but believed himself on a road in which cars were proceeding in both directions. Thus whether decedent’s entry into and traveling along the wrong lane were a result solely of his intoxicated condition or also resulted in part at least from other factors present in the record was a question within the fact-finding [487] power of the hoard and its determination must, therefore, be sustained. The decision and award should be affirmed.