Cossari v. L. Stein & Co.

• Decision Date: 17 November 1948
• Citation: Cossari v. L. Stein & Co., 62 A.2d 143, 1 N.J.Super. 39 (N.J. Super. App. Div. 1948)
• Docket Number: A--13.
• Parties: CATHERINE COSSARI, PETITIONER-RESPONDENT, v. L. STEIN & CO., RESPONDENT-APPELLANT
• Court: New Jersey Superior Court — Appellate Division

62 A.2d 143

COSSARI

v.L. STEIN & CO.

No. A-13.

Superior Court of New JerseyAppellate Division, Part A.

Nov. 17, 1948.

Syllabus by the Court.

1.The general rule is that an employee traveling on the public highway on his way to work is not covered by the Workmen's Compensation Act; the rule is otherwise where the employee is actually in the process of entering his place of employment at a proper time and in a proper manner.

2.Where the employee has left the public highway and is entering his employer's premises through a proper means of ingress so closely related to the place of employment that it may be deemed incidental thereto, his employment has commenced within the contemplation of the Act.The fact that under these circumstances the accident occurred shortly prior to the hour for reporting for work is immaterial.

3.The lower court's determination that the accident arose out of and in the course of employment was here sustained where it appeared that the employee on her way to work had tried the front door to her place of employment and found it locked, had left the public highway to proceed along an adjacent driveway and enter through a back door, had passed a large iron gate placed at the entrance to the driveway which was used by employees and others having business there but not by the general public, and had been injured by a fall when about to enter through the back door.

Appeal from Court of Common Pleas, Passaic County; Louis V. Hinchliffe, Judge.

Proceeding under the Workmen's Compensation Law by Catherine Cossari, claimant, opposed by L. Stein & Co., employer.To review a judgment of the Court of Common Pleas affirming an award by the Workmen's Compensation Bureau in favor of claimant, the employer brings certiorari.

Judgment affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

Kalisch & Kalisch, of Newark (Isidor Kalisch, of Newark, of counsel), for appellant.

Marcus & Levy, of Paterson (Isadore Rosenbloom, of Paterson, of counsel), for appellee.

JACOBS, Senior Judge.

This matter is before the court pursuant to a writ of certiorari allowed by the former Superme Court to review a judgment of the Passaic County Court of Common Pleas affirming an award by the Workmen's Compensation Bureau in favor of the petitioner.

On January 25, 1946, petitioner, Catherine Cossari, was in the employ of the appellant, L. Stein & Co., a clothing manufacturer.Her employer was a tenant in the mill premises located at 8Morris Street, Paterson, New Jersey, and maintained his place of business on the fourth floor.On January 25, 1946, which was a stormy day, petitioner was due for work at 8 a.m. and arrived in front of the mill premises at about 7:45 a.m.She tried to enter the front door but found it locked.This was not unusual in bad weather and in such instances the employees customarily entered through a back door.In order to reach the back door it was necessary for the petitioner to leave the sidewalk in front of the premises, walk on a cobblestone driveway or alleyway alongside the building and then turn to where the back door was located.At the beginning of the driveway there was a large iron entrance gate which was attached to and, when open, placed directly alongside the building.Petitioner, after having walked along the driveway turned to enter the back door and fell on the icy ground.The Bureau's award in favor of the petitioner was for the injuries resulting from this fall and the appellant, although denying liability on the ground that the accident did not arise out of and in the course of her employment, does not question the quantum of the award.

The evidence established that the driveway led to other buildings beyond the mill premises and was used by the employees of the appellant and other tenants in the mill premises as well as by other persons, such as deliverymen, having business in the mill premises or in the other buildings.There was no occasion for the general public to use the driveway and we are satisfied that it was not so used.

In Popovich v. Atlantic Products Corp., Sup.1941, 125 N.J.L. 533, 535, 17 A.2d 492, 493, the principles with respect to the applicability of the Workmen's Compensation Act to employees on their way to or from work, were succinctly expressed as follows: ‘As we understand our cases, the general rule is that where the employee is simply on his way to work and has not entered the employer's premises, or has undertaken to enter those premises by an unauthorized route, he is not yet in the course of his employment; and, conversely, where the employee has left the employer's premises, the course of employment has ceased for the time being; but where the employee is actually in the process of entering the premises at a proper time and in a proper manner in connection with his work and an accident occurs under those circumstances, it arises in the course of the employment.’

Thus, in Gullo v. American Lead Pencil Co., Err. & App.1938, 119 N.J.L. 484, 196 A. 438, 439, the court held that an accident which occurred on the public sidewalk in front of the employer's factory was not compensable pointing out that the ‘street was a public highway on which the public in general had the paramount right of user and this of course included the sidewalk.’See alsoGrady v. Nevins Church Press Co., Err. & App.1938, 120 N.J.L. 351, 199 A. 578.On the other hand in Essex County Country Club v. Chapman, Sup.1934, 113 N.J.L. 182, 184, 173 A. 591, where an employee was injured on his way to work while proceeding along a driveway within the employer's premises, the allowance of compensation was sustained.The fact that under these circumstances the accident occurred shortly prior to the hour for reporting for work is immaterial.SeeGrady v. Nevins Church Press Co., supra, 120 N.J.L. at page 355, 199 A. 578;Terlecki v. Strauss, Sup.1914, 85 N.J.L. 454, 89 A. 1023, affirmedErr. & App.1914, 86 N.J.L. 708, 92 A. 1087.

We have concluded that the case before us does not fall within the rule of the Gullo decision, but falls rather within that group of cases which allows compensation where the employee has left the public highway and is entering his employer's premises through a proper means of ingress so closely related to the place of employment that it may be deemed incidental thereto.SeeBolos v. Trenton Fire Clay and Porcelain Co., Sup.1926, 102 N.J.L. 479, at page 483, 133 A. 764, affirmedErr. & App.1927, 103 N.J.L. 483, 135 A. 915;Bountiful Brick Co. v. Giles, 1928, 276 U.S. 154, 158, 49 S.Ct. 221, 72 L.Ed. 507, 509, 66 A.L.R. 1402;Leatham v. Thurston & Braidich, 1943, 289...