Clegg v. Motor Finance Corp.
| Decision Date | 19 October 1942 |
| Citation | 28 A.2d 533,20 N.J.Misc. 437 |
| Parties | CLEGG v. MOTOR FINANCE CORPORATION et al. |
| Court | New Jersey Supreme Court |
[Copyrighted material omitted.]
Proceeding under the Workmen's Compensation Act by Joseph R. Clegg, claimant, opposed by the Motor Finance Corporation and the Interstate Insurance Company.
Award in accordance with opinion.
William V. Breslin, of Englewood, for petitioner.
Cox & Walburg, of Newark (Arthur F. Mead, of Newark, of counsel), for respondents.
KERNER, Deputy Commissioner.
The issue presented here for determination is whether the petitioner on the day in question sustained an accident arising out of and in the course of his employment, and if so, whether he suffered any temporary or permanent disability as a result of such accident.
Essentially, the facts developed in the evidence are as follows: The petitioner on the day of the accident and for some time prior thereto, was in the employ of the respondents, Interstate Insurance Co., whose office was located in Newark, in the capacity of adjuster. Among other duties, it was necessary for him to effect the repossession of automobiles. He had no regular working hours, but was given assignments each day which he would carry over from day to day. It was not unusual for him to work varying hours of the day or night in the performance of these assignments in which he required the use of his automobile. Several days prior to the alleged accident, he was given an assignment to repossess the automobile of one Conklin who was the manager of a grocery store in Nanuet, N. Y, and who resided in New City, N. Y. On the day of the accident, a Saturday, the petitioner in furtherance of this assignment, attempted to contact Conklin at Nanuet by telephone. Failing in this, he left Newark with his car to go to Nanuet to repossess the car of Conklin. Arriving in Nanuet in the afternoon, petitioner failed to find Conklin's car in the vicinity of the store and although he made no effort to contact Conklin personally at his store, he tried to reach Conklin by telephone at his home in New City but was unsuccessful. Thereupon, the petitioner left New City in his auto to go to Newburgh, N. Y, where his wife was visiting some friends. The petitioner spent the remainder of the afternoon and early evening visiting with his wife in Newburgh. Petitioner testified that about 11 o'clock that evening, he left Newburgh in his car to go to New City to see Conklin and, if possible, repossess his automobile. It was while on Route 9-W on the outskirts of New Windsor, N. Y. and between 11 P. M. and midnight, that he met with an automobile accident as a result of which he sustained a fractured leg and was hospitalized for several weeks. From the road map in evidence, it would appear that New City is about 5 miles north of Nanuet, that Newburgh is about 30 miles north of New City and that New Windsor is about 3 miles south of Newburgh.
The respondent contends that the petitioner at the time of the accident was on his way to his home in Newark; further, that when the petitioner went from New City to Newburgh, it constituted a deviation from his route and from the scope of his employment, and that therefore the petitioner at the time and place in question, did not sustain an accident which arose out of and in the course of his employment with respondent. The respondent, however, presented no affirmative proof in support of its contentions.
The burden of proof rests upon the petitioner to prove by a fair preponderance of the credible evidence the essential allegations of his petition in order to entitle him to an award. He is charged with the duty of furnishing evidence from which the inference can be legitimately drawn that the injury alleged was caused by an accident arising out of and in the course of his employment. Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458.
From a careful review and consideration of the evidence and after hearing the testimony of the petitioner and observing his demeanor on the stand, I am constrained to believe that the petitioner is worthy of credence and am satisfied that the accident in which he was involved arose not only out of but in the course of his employment as well, the words "out of" relate to the origin or cause of the accident; the words "in the course of" relate to the time, place and circumstances under which it occurs. An accident arises "in the course of" his employment if it occurs while the employee 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. For an...
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