Filson v. Bell Tel. Laboratories, Inc.

• Decision Date: 28 January 1964
• Docket Number: No. A--444,A--444
• Citation: 197 A.2d 196,82 N.J.Super. 185
• Parties: Mitzl FILSON, Petitioner-Respondent, v. BELL TELEPHONE LABORATORIES, INCORPORATED, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 185

82 N.J.Super. 185

197 A.2d 196

Mitzl FILSON, Petitioner-Respondent, v. BELL TELEPHONE LABORATORIES, INCORPORATED, Respondent-Appellant.

No. A--444.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 16, 1964.

Decided Jan. 28, 1964.

W. Clark Gaw, Newark, for appellant (Mead, Gleeson, Hansen & Pantages, Newark, attorneys; W. Clark Gaw, of counsel).

Aaron Gordon, Jersey City, for respondent (Hirschberg, Nashel, Zorn & Cronson, West New York, attorneys; Aaron Gordon, of counsel; Louis L. Cronson, West New York, on the brief).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

KILKENNY, J.A.D.

On May 21, 1960 Daniel Filson was fatally injured when the automobile in which he was riding with his wife and two infant children went out of control and turned over on Highway 92, three miles west of Winterset, Iowa. At the time Filson and his family were on their way from their home in Monterey, California, to New Jersey where he was to begin work on June 1, 1960 for Bell Telephone Laboratories, Incorporated (hereinafter 'Bell') at its Murray Hill laboratories.

Mitzi Filson, the widow, filed a dependency claim petition with the New Jersey Division of Workmen's Compensation and, following a contested hearing therein, received an award of compensation for herself and the children. Bell appealed to the Union County Court, where the award of compensation was affirmed. Judge Wood's opinion is reported in 77 N.J.Super. 320, 186 A.2d 320 (Cty.Ct.1962). Bell now prosecutes this appeal from the County Court judgment.

In its argument for reversal, Bell contends: (1) decedent was not in its employ at the time accident occurred; (2) if employment status had been reached, New Jersey did not have jurisdiction to award compensation benefits because the accident was in Iowa and the contract of employment was not 'consummated' in New Jersey; and (3) assuming employee status, the fatal accident did not arise out of and in the course of decedent's employment.

We have made the required independent study and analysis of the evidence. Russo v. United States Trucking Corp., 26 N.J. 430, 435, 140 A.2d 206 (1958); Ricciardi v. Marcalus Mfg. Co., 26 N.J. 445, 447, 140 A.2d 215 (1958). Upon such total consideration of the record and the views expressed below, we believe that the judgment from which the appeal is taken, both in fact and the applicable law, is correct and should be affirmed.

No useful purpose would be served by reiterating Judge Wood's careful analysis and appraisal of the evidence from which he concluded that, as a result of the correspondence between them, a contract of employment had been entered into between decedent and Bell prior to the fatal accident. All of the material terms of the hiring had been agreed upon. The term of employment was ten weeks, commencing June 1, 1960. The hours were fixed at 37 1/2 over a five-day week. The salary was set at $870 per month. Decedent, whose qualifications were fully delineated in the letters exchanged and forms completed, was to serve as a member of Bell's technical staff at its Murray Hill laboratories. Decedent had, as required in Bell's April 5, 1960 written offer of employment, submitted to an examination by a doctor in California, the medical report had been forwarded to Bell in New Jersey, Bell had acknowledged receipt thereof by its letter of May 18, 1960, and therein Bell stated:

'* * * I am happy to tell you that it has been approved as Satisfactory by our Medical Director. Consequently, the way is now clear for you to join us.' (Emphasis ours)

The importance of this unrestricted declaration is apparent when note is taken of the statement in Bell's letter of April 5, 1960 'If it (the requested medical report) is Satisfactory, you will have the assurance of meeting our requirements when you report for work, assuming no unfavorable development meantime.' (Emphasis added)

The agreement also obligated Bell to reimburse Filson the 'transportation expenses incurred in traveling from Monterey, California, to Whippany, New Jersey,' together with reasonable expenses for meals, lodgings, and incidentals En route. It limited air flight expense to a 'single one-way first-class airline fare, plus local transportation.' It also provided: 'Or, if you drive your personal automobile, you would be reimbursed at the rate of 8 1/2 cents per mile.' Bell further argeed, 'At the termination of your summer employment with us, we would make a payment of like character to cover your return transportation to Monterey.' Bell took pains to recite in its offer of employment that no reimbursement would be made, however, 'for the expenses incurred by members of your family who might be traveling with you.'

We find no merit in Bell's contention that a contract of employment would not have come into existence until Filson actually reported at Bell's laboratories in New Jersey, was re-examined by its doctor in this State, produced birth and citizenship records, veteran's discharge papers, social security card and other documents requested in its instruction sheet, filled out other forms in New Jersey, and was then officially placed on the payroll. The letters exchanged specified no requirement that Filson must pass another physical examination in New Jersey. On the contrary, he was told that if Bell found satisfactory the medical report from California, 'you will have the assurance of meeting our requirements when you report for work.' The documents requested were mere formalities, as were any additional forms to be executed upon reporting for work in New Jersey.

Bell does not contend or even suggest that Filson would not have been able to furnish the requested papers. Bell's forms, already filled out in California and mailed back by Filson, evidenced his qualifications satisfactorily to Bell. He stated therein that he was a citizen of the United States. He had been born on July 10, 1932. He attended elementary and high schools in New York City. He was graduated from Cornell University, with a B.A. in Physics, he had his M.S. in Physics from U.C.L.A., and had earned his Ph.D. in Physics also at U.C.L.A. At the time of his application to Bell, he was an Assistant Professor of Physics at the U.S. Naval Postgraduate School in Monterey, California, and had been so employed since 1959. The fact that Bell was willing to hire him as a technician in its laboratories and pay for his transportation from California to New Jersey, and back after ten weeks of employment, indicates that all of its material requirements had been met before it wrote to him on May 18, 1960 and stated, 'Consequently, the way is now clear for you to join us.'

Bell points to the statements in its offer of April 5, 1960 to the effect, 'assuming no unfavorable development meantime.' We regard this merely as the expression of a condition subsequent, upon the happening of which a contract already entered into could be terminated. There was no proof of such an unfavorable development, other than Filson's accidental death while on his way to fulfill his contractual obligation. This would excuse future performance by Bell but does not detract from the conclusion that a contract of employment between Bell and Filson existed at the time Filson met his untimely death as the result of this accident in the course of travel to the place of his new employment.

We also concur in the finding by Judge Wood that the contract of employment was made in New Jersey. We do so for the reasons expressed in his opinion. A contract is made at the place where the final act necessary for its formation is done. Restatement, Contracts, § 74 (1932); Northampton Mutual Live Stock Ins. Co. v. Tuttle, 40 N.J.L. 476, 479 (Sup.Ct.1878). We deem that act to have been Bell's determination, in New Jersey, that the medical report of Filson's physical examination was satisfactory, and its mailing of its letter of May 18, 1960 from New Jersey, so advising Filson and that 'Consequently, the way is now clear for you to join us.' Thus, our Division of Workmen's Compensation had the necessary jurisdiction to make an award because, under our workmen's compensation law, 'when a contract of employment is made in this state it is immaterial whether the compensable accident occurs here or elsewhere.' Gotkin v. Weinberg, 2 N.J. 305, 307, 66 A.2d 438, 439. (1949).

The really crucial issue herein is whether it can properly be said that Filson's death was the result of an accident 'arising out of and in the course of his employment,' as required by R.S. 34:15--7, N.J.S.A. Filson had not yet begun to perform any services for Bell and was not due at Bell's laboratories in New Jersey until ten days later. He had not been paid any salary and, presumably, would not have received any until after commencement of work at Bell's laboratories. However, he was traveling along a public highway on his way across country and had completed about half the journey to the place of employment in New Jersey when the fatal happening occurred. He was using a means of transportation authorized by Bell and for which Bell had agreed to pay at the rate of 8 1/2 cents a mile. In other words, Bell was bringing this highly skilled technician from his home in California to its plant in New Jersey at its expense. The question, then, is whether the hired employee is within the ambit of his employment under such circumstances, during the course of his travel, so as to make the provisions of our workmen's compensation law applicable.

Ordinarily, an accident sustained by an employee during the course of travel between his home and place of employment is not compensable. This is sometimes referred to as the 'going and coming' rule. Green v. Bell Cleaners, 65 N.J.Super. 311, 316, 167 A.2d 815 (App.Div.1961), affirmed 35 N.J. 596, 174 A.2d 474 (1961). On the other hand, when the employer provides the employee with transportation when going to or...