Ricciardi v. Aniero Concrete Co.

Jacobs, J.

(dissenting) : Travel to and from work is an essential part of the job and so are its hazards. See Ricciardi v. Lamar Products Co., 45 N. J. 54, 61 (1965). That being so, there would appear to be no just reason for denying compensation to an employee who is accidentally injured while on his way to or from work. Accordingly I would, as I have indicated in my writings both early and late, abandon the so-called “going and coming rule” which has often resulted in the denial of compensation for injuries suffered en route. See Moosebrugger v. Prospect Presbyterian Church, 12 N. J. 212, 216-221 (1953); Hornyak v. The Great Atlantic & Pacific Tea Co., 63 N. J. 99, 105-107 (1973); cf. Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7, 11-14 (1970); Bergman v. Parnes Brothers, Inc., 58 N. J. 559, 563 (1971). Though the courts have thus far declined to abandon the rule they have repeatedly acknowledged its harshness and have created exceptions which have become so numerous as to have almost “swallowed the rule.” Hammond, supra, 56 N. J. at 12.

One of the exceptions, as set forth in 1 Larson, Workmen’s Gompensation § 16.30 (1972), permits compensation where there has been “a deliberate and substantial payment for the expense of travel” to and from work. Unlike the majority’s per curiam here, Dean Larson does not suggest that the payment must be for “all or substantially all of the total expense involved.” I see no reason why it must. See Costa *64v. New York State Workmen’s Compensation Board, 34 A. D. 2d 585, 308 N. Y. S. 2d 93, 94 (1970) :

The general rule is that risks of travel to and from work are not risks of employment. (Matter of DeVoe v. New York State Rys., 218 N. Y. 318, 113 N. E. 256, L. R. A. 1917A, 250) There are certain exceptions as where the employee is an “outside” employee, (Matter of Fonze v. Stuyvesant Oil Burner Corp., 10 A. D. 2d 761, 197 N. Y. S. 2d 496), where the employee is traveling or transportation is provided or paid in part by the employer, (Matter of Macaluso v. Alexander, Shumway & Utz Co., 11 A. D. 2d 838, 203 N. Y. S. 2d 106, mot. for lv. to app. den. 8 N. Y. 2d 708, 206 N. Y. S. 2d 1026, 169 N. E. 2d 926), or where the employee has been directed to perform a “special errand” for his employer on his way to work. (Matter of Respole v. Schorr, 25 A. D. 2d 581, 266 N. Y. S. 2d 863 ; Matter of Charak v. Leddy, 23 A. D. 2d 437, 261 N. Y. S. 2d 486; Matter of Mason v. New York Abstract Co., 11 A. D. 2d 569, 200 N. Y. S. 2d 677.) 308 N. Y. S. 2d at 94.

There is no New Jersey precedent which either expressly or impliedly supports the suggestion that a partial though deliberate and substantial payment towards travel expense is legally insufficient to bring, the matter within the exception. Jasaitis v. Paterson, 31 N. J. 81 (1959), Ricciardi v. Damar Products Co., supra, 45 N. J. 54, and Rainear v. Rainear, 63 N. J. 276 (1973), relied on in the per curiam', are not pertinent since they were not concerned with and did not in anywise deal with the issue. In Filson v. Bell Tel. Labs., Inc. 82 N. J. Super. 185 (App. Div. 1964), the employee received a mileage allowance; in Micieli v. Erie Railroad Co., 130 N. J. L. 448 (Sup. Ct. 1943), aff'd, 131 N. J. L. 427 (E. & A. 1944), he received a railroad pass; and in Lehigh Navigation Coal Co. v. McGonnell, 120 N. J. L. 428 (Sup. Ct. 1938), aff'd, 121 N. J. L. 583 (E. & A. 1939), he received reimbursement for his commutation ticket. In each instance the exception was deemed applicable without any judicial inquiry as to whether all or only part of the employee’s actual travel expense was being borne by the employer. Similarly out-of-state decisions applying the exception have not turned on any suggestion that the employer’s *65payment represented all rather than part of the expense. See Macaluso v. Alexander, Shumway & Utz Co., 11 A. D. 2d 838, 203 N. Y. S. 2d 106, mot. for lv. to app. den. 8 N. Y. 2d 708, 206 N. Y. S. 2d 1026, 169 N. E. 2d 926 (1960); cf. U. S. Fidelity & Guaranty Co. v. Donovan, 94 U. S. App. D. C. 377, 221 F. 2d 515 (D. C. Cir. 1954); Williams v. Brunswick County Board of Education, 1 N. C. App. 89, 160 S. E. 2d 102 (1968); Lemanski v. Frimberger Company, 31 Mich. App. 285, 187 N. W. 2d 498 (1971); see also Puett v. Bahnson Co., 231 N. C. 711, 58 S. E. 2d 633 (1950) ; Swartzer v. Food Fair Stores, Inc., 175 So. 2d 36 (Fla. 1965); Zenith Nat'l. Ins. Co. v. Workmen’s Compensation Appeals Board, 66 Cal. 2d 944, 59 Cal. Rptr. 622, 428 P. 2d 606 (1967).

In Pearce v. N. J. Highway Authority, 122 N. J. Super. 342 (App. Div. 1973), cited in Hornyalc, supra, 63 N. J. at 104, the employee was injured on the Garden State Parkway while driving to her office. Her employer had furnished her with toll-free coupons to facilitate her use of the Parkway while traveling to and from work. The Appellate Division held that she came within the exception to the rule and was entitled to compensation. In the course of its opinion it noted that “the intrusion of an employer into his employee’s travel habits, customs, or economies, necessarily implies some benefit to or for the employer no matter how altruistic may be other concomitant motivations.” 122 N. J. Super, at 346.

In the case at hand the employee Eicciardi lived in West Keansburg and worked for Aniero Concrete Company in Hackensack. It took him about an hour to get to work when using the Parkway, in contrast to almost an hour and three-quarters when using toll-free roads. When he was about to start on a new construction job in Hackensack for Aniero, he told his employer that “it was costing me too much money, you know, to travel back and forth to work.” His employer agreed that he would pay him $10 a week for travel expense which would cover his tolls on the Parkway. The $10 weekly payment was thereafter always made by cheek whereas his *66weekly wages were paid in cash. It seems to me that in line with Pearce (122 N. J. Super. 342) this travel payment, which was clearly designed to foster the continuance of the employment relationship to the benefit of both the employer and the employee, was sufficient to bring the employee within the exception to the going and coming rule so that, even if that rule is not now abandoned, the employee here is nonetheless justly entitled to be compensated under the broad terms and liberal intendment of our Workmen’s Compensation Act.

I vote to affirm.