Moosebrugger v. Prospect Presbyterian Church

Jacobs, J. (dissenting).

The Workmen’s Compensation Act is remedial legislation designed to place the costs of accidental injuries which are work-connected upon the employer who may readily provide for them as operating expenses. Its pertinent terms provide for compensation to employees for personal injuries by accident “arising out of and in the course of” the employment. An accident has been said to arise out of the employment when it results from a risk reasonably incidental thereto. Geltman v. Reliable Linen & Supply Co., 128 N. J. L. 443, 446 (E. & A. 1942). And it has been said to arise in the course thereof when “it occurs *217while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.” Bryant Adm’x. v. Fissell, 84 N. J. L. 72, 77 (Sup. Ct. 1913). The doctrine is well recognized that the course of the employment is not confined to the actual work but may extend to reasonable preparations therefor. See Terlecki v. Strauss, 85 N. J. L. 454 (Sup. Ct. 1914), affirmed 86 N. J. L. 708 (E. & A. 1914); 1 Larson, Workmen's Compensation Law (1952), 195. Cf. Waskevitz v. Clifton Paper Board Co., 7 N. J. Super. 1, 3 (App. Div. 1950). It may be suggested that liberal application of this doctrine would likewise encompass travel to and from work as incidental to the employment, and that accidental injury during its course may justly be deemed work-related. Nevertheless, the general rule is otherwise and our courts have held that the employment ordinarily commences and terminates at the employer’s premises and that injuries which occur while the employee is traveling to and coming from the employer’s premises are not compensable. See Gullo v. American Lead Pencil Co., 119 N. J. L. 484, 486 (E. & A. 1938) where the court rejected compensation to an employee who was injured along the public sidewalk while entering the gates to her employer’s factory; although Justice Lloyd indicated that an artificial line between employment and non-employment had to be drawn somewhere, might not justice and the purposes of the act have been furthered if it had been drawn antecedently, perhaps when Miss G-ullo left home for the factory on the way dedicated to her employment.

The harshness of the general rule, as construed in the Güilo case, has led to numerous decisions which have either restricted its application (Cossari v. L. Stein & Co., 1 N. J. Super. 39, 43 (App. Div. 1948)) or have declared express exceptions thereto. See Rubeo v. Arthur McMullen Co., 117 N. J. L. 574, 579 (E. & A. 1937); McCrae v. Eastern Aircraft, 137 N. J. L. 244, 246 (Sup. Ct. 1948); Bobertz v. Board of Education of Hillside Twp., 134 N. J. L. 444, 447 (Sup. Ct. 1946), reversed on other ground 135 N. J. L. 555 *218(E. & A. 1947); Bradley v. Danzis Pharmacy, 5 N. J. Super. 330, 332 (App. Div. 1949). See also 8 Schneider, Workmen’s Compensation (3rd ed. 1951), 7: “the rule as originally laid down was soon discovered to be an unjust one when applied in all cases of travel to and from the home of the employee, and exceptions began to multipty in form and number.” In Rafferty v. Dairymen’s League &c. Ass’n., Inc., 16 N. J. Misc. 363, 366 (W. C. B. 1938), the deputy commissioner classified these exceptions under the following headings: “(1) Where Transportation is Furnished by the Employer to and from the Place of Employment.” Rubeo v. Arthur McMullen Co., supra. “(2) Where the Use of an Automobile or Other Form of Vehicle is Required in the Performance of the Contract of Service.” Demerest v. Guild, 114 N. J. L. 472, 476 (E. & A. 1935). “(3) Traveling Salesmen and Others Whose Duties Require Them to Travel from Place to Place.” Geltman v. Reliable Linen & Supply Co., supra. “(4) Necessary Travel While on Special Duty After Regular Working Hours.” Bobertz v. Board of Education of Hillside Twp., supra. See also 8 Schneider, supra, 29, 38; 1 Larson, supra, 222, 224.

In the Boberlz case the petitioner was a Hillside school teacher. Her extracurricular duties included her attendance, as faculty advisor, at meetings of the Junior Girls Reserve Club. After attending an evening meeting of the club she walked to her parked car and was there assaulted. The former Supreme Court held that although she was on her way home when the injury occurred, she came within one of the exceptions rather than the rule of the Quilo ease and sustained an award in her favor. In his opinion, Justice Wachenfeld (at p. 447) approved the fourth exception listed in the Rafferty case as governing “ 'cases where it is shown that the employee, although not at his regular place of employment, even before or after customary working hours, is doing, is on his way home after performing, or on the way from his home to perform, some special service or errand or the discharge of some duty incidental to the nature of his employment in the interest of, or under direction of, his *219employer. * * *’ Kyle v. Greene High School, 208 Iowa 1037, 226 N. W. 71, 72 [1929].” In the Kyle case an award was sustained in favor of a school janitor who, after having completed his services for the day and having returned home, was called to adjust the gymnasium lights at the school for an evening basketball game, and was struck by an automobile while on his way back to the school. Cf. Cymbor v. Binder Coal Co., 285 Pa. 440, 132 A. 363 (Sup. Ct. 1926) where an award was allowed for an injury which occurred while a regular mine employee was on his way home after having performed his extra, though customary, evening task of throwing the switch which started the pumps for the following morning’s mining operations. See 1 Larson, supra, at 222.

In Bisdom v. Kerbrat, 251 Mich. 316, 232 N. W. 408 (Sup. Ct. 1930) the employee’s regular working day ended at 5 :30 p. m. but at times he was called upon to work later. On the day in question he left to have supper, change his clothes and return for extra evening work. While on his way home he was in an automobile accident which resulted in his death. The Supreme Court of Michigan held that the injury arose out of and in the course of the employment and sustained an award. Similarly, in Gibbs v. R. H. Macy & Co., 214 App. Div. 335, 212 N. Y. S. 428 (App. Div. 1925) , affirmed 242 N. Y. 551, 152 N. E. 423 (Ct. App. 1926) , a department store detective was called upon to testify in court after her regular working hours. She was injured while returning home from the Jefferson Market Court where she had appeared as a witness against a shoplifter. A compensation award in her favor was unanimously sustained. And in Reisinger-Siehler Co. v. Perry, 165 Md. 191, 167 A. 51, 54 (Ct. App. 1933) the court applied the ruling in the Gibbs case to sustain an award to a store superintendent whose regular hours of employment were from 6 a. m. to 6 p. M., subject to call at any time thereafter, and who was injured by an automobile while returning from the store pursuant to a night call. The court stated that the employee’s extra duty “was in the nature of an errand or *220mission on- behalf of his employer” and that the award was wholly consonant with the tendency of courts to give “ ‘Compensation Acts an interpretation as broad and liberal in favor of the employee as their provisions will permit, in furtherance of the humane purpose which prompted their enactment.’ ” This wholesome tendency finds ample cognizance in our own decisions. See Saintsing v. Steinbach Company, 1 N. J. Super. 259, 264 (App. Div. 1949), affirmed 2 N. J. 304 (1949); Cossari v. L. Stein & Co., supra; Gellman v. Reliable Linen & Supply Co., supra; Lehigh Navigation Coal Co. v. McGonnell, 120 N. J. L. 428, 431 (Sup. Ct. 1938), affirmed 121 N. J. L. 583 (E. & A. 1939).

Justice Douglas found occasion to observe in an address before the Section on Judicial Administration of the American Bar Association that the law is not a calculating machine which furnishes the right answer when the proper lever is pushed, and that vague statutory language generally gathers meaning and significance in terms of the judge’s “own life and experience, his personal set of values, his training and education, and the genes of the blood stream of his ancestors.” 32 J. Am. Jud. Soc. 104, 106 (1948). Perhaps nowhere is this more evident than when dealing with social legislation such as the Workmen’s Compensation Act. Thus in the instant matter the facts and legal principles are neither complex nor in dispute, yet the 12 judicial minds which have been brought to bear on the issue have divided equally. The differences appear to turn upon matters of emphasis and sympathetic understanding of the beneficent objectives of the act. The plaintiff’s regular working hours were 8:30 a. m. to 5:30 p. M., six days per week — a full working schedule under any modern day labor concept. Under the stipulated facts, he was also required to attend evening meetings “when so requested.” The men’s club, which had not met for many years, scheduled a special meeting for the evening of November 10, 1948 and the plaintiff was requested to attend for the purpose of readying the premises, serving .refreshments and banking the furnace at the close of the meeting. Ordinarily when the plaintiff finished his *221regular work at 5:30 p. m. and left the church he was through for the day and, in the language of the Güilo case, on his own. However, when he left on November 10 he was not through or on his own but had to return for the performance of extra evening duties for the direct benefit of his employer. The point is made that the evening duties were neither emergent nor infrequent, but these are not essential elements of the.applicable exception; in many of the cases, including Bobertz and Gibbs the extra duties were apparently neither emergent nor infrequent. It is true that the extra duties performed in the Bobertz and Gibbs cases were at premises other than the employer’s, but that factual distinction in nowise bears upon the scope or purpose of the exception; in the Kyle and Bcisinger eases the extra duties were performed at the employer’s premises. It seems to me that the plaintiff’s travel to the church on the evening of November 10 to perform extra evening duties for his employer pursuant to prior request was sufficiently work-connected and that the award for accidental injury suffered during the course thereof was well within the comprehensive terms and liberal intendment of the act.

I would affirm the judgment of the Appellate Division.

Heher and Wachenfeld, JJ., concur in this opinion. For reversal — Chief Justice Vanderbilt, and Justices Oliphant, Burling and Brennan — 4. For affirmance — Justices Hehbr, Wachenfeld and Jacobs —3.