Gelbart v. N. J. Federated Egg Producers Ass'n

• Decision Date: 07 July 1939
• Citation: 7 A.2d 636
• Parties: GELBART v. N. J. FEDERATED EGG PRODUCERS ASS'N.
• Court: New Jersey Supreme Court

7 A.2d 636

GELBART

v. N. J. FEDERATED EGG PRODUCERS ASS'N.

New Jersey Department of Labor—Workmen's Compensation Bureau.

July 7, 1939.

Proceedings under the Workmen's Compensation Law by Rose Gelbart for compensation and other items of expense by reason of accidental death of her husband, Max Gelbart, an employee, opposed by the New Jersey Federated Egg Producers Association, employer.

Judgment for petitioner.

Robert J. Novins, of Toms River, for petitioner.

James J. Skeffington, of Newark, for respondent.

HARRY S. MEDINETS, of Perth Amboy, Deputy Commissioner.

Rose Gelbart, the petitioner, seeks compensation and other items of expense from respondent, New Jersey Federated Egg Producers Association, by reason of the accidental death of her husband, Max Gelbart, an employee of respondent.

The accident, which occurred on Monday, August 29, 1938 and the ensuing injuries received therefrom by the decedent as the result of which he died on August 31, 1938, resulted from an automobile accident involving a car owned and operated by one, David Kosecoff, in which decedent was riding, and the car of a third party.

In order that a clear picture of the nature and duties concerning the employment of the decedent, Max Gelbart, with respondent may be shown and particularly as they relate to circumstances at the time of the accident in question, it would appear proper to briefly refer to the factual proofs submitted at the hearing.

It is undisputed that decedent was in the employ of respondent and was receiving a salary of $30 per week for the services rendered by him. He resided, at the time of the accident and for some time prior thereto, with David Kosecoff on the Lakehurst Road near Toms River. Respondent's place of business is also located on Lakchurst Road and about one mile east of the home of David Kosecoff.

The testimony of Fred Wiedeke, Secretary-Treasurer and Manager of respondent's business, indicated that there were two keys used in opening the place of business of respondent, one of which was kept by Wiedeke and the other by the decedent. The business of respondent included the collecting of eggs from farmers, the taking of same to the grading station for inspection and candling and the subsequent delivery and sale of such eggs to buyers thereof.

The proofs further indicate that Wiedeke came to work between 10 and 10:30 A. M., that it was the usual event for Gelbart, the decedent, to open the station in the morning, he having the only other key. Moreover, Wiedeke testified that the decedent was subject to call by him during any hour of the day or night to open the grading station. The busy days during the week in respondent's business were Monday and Thursday. On Monday, the decedent would have to get to respondent's place of business between 6 and 7 A. M. There were no fixed hours of employment for the decedent, it being understood that he worked longer on some days than on others.

It further appeared from the testimony that in order to get in the candling room where the decedent worked, it was first necessary for him to also open the grading station; that at the time of the accident, there were two other employees working in the grading station, to wit, Joseph Pulz and one Hurley, who came to work at about 9 A. M.; and it was also necessary for the truckers to get into the grading station. It would follow, of course, from this that the admission of these persons necessitated the opening of the station by the decedent.

Now, in addition, it appeared that David Kosecoff, with whom the decedent was proceeding to the grading station of respondent at the time of the accident, also performed various services for respondent. He, Kosecoff, maintained trucks for the delivery of respondent's eggs, bearing the name of respondent; that early in the morning, in the course of his services for respondent, he picked up empty cases; and that he did prepare tags which would be presented to the farmers to enable him to get eggs; and that in order to get such eggs, it was necessary for him to first enter the grading station early in 'the morning by means of admittance by the decedent and long before Wiedeke, the Manager, came to work. Kosecoff testified that the decedent gave him a receipt for each load of eggs brought in; and that on the day of the accident, at about 8 A. M, and shortly before he met decedent, he was actually on his way to the grading station to commence his duties; that on this particular day, it was necessary for him to be there early. He further testified, in answer to a question by the Court as to why he was going to the station on the morning of the accident in advance of his trucks, that he had to prepare the cases and the shipping tags for the farmers, which was in the course of his usual duties on such days; and further that he had been instructed by respondent, should he have occasion to get into the grading station at any time other than the usual business hours, to go to the decedent for the key.

On the day of the accident, it appeared that decedent had left his home very early in the morning, at about 7 A. M, and some time before Kosecoff; that some time thereafter during the same morning, Kosecoff, who was then proceeding to the grading station for the purpose of performing the duties hereinbefore referred to, met the decedent on the road leading from Kosecoff's house to the place of respondent's business; that the decedent was walking back from the grading station to the house; that decedent stopped Kosecoff and explained to him that he had forgotten the key to the station and that it was in his other pants; that the decedent asked Kosecoff to take him home to get the keys, as there was no other way to get into the station and no one else could get in either; that it was necessary that Kosecoff get the key, as his duties required his admission to the station that morning; that he, Kosecoff, then took the decedent home where the decedent procured the key, after which both proceeded in the car of Kosecoff to drive back to the grading station; and that during the return trip, the automobile collided with that of the third person; and that the decedent sustained injuries from which he died; further, that immediately after the collision, Kosecoff procured the key from the decedent who had it in his watch pocket. It is the contention of the petitioner that under the proofs submitted to the court in the instant case that the decedent, Max Gelbart, met his death from an accident arising out of and in the course of his employment.

From the testimony submitted, it appears that the decedent was entrusted with one set of keys to respondent's place of business and that the terms of his employment charged him with the duty of opening the place of business in the morning. It is clear also that the opening of the grading station in the morning by decedent was, in fact, beneficial to the respondent for it enabled the other employees, Pulz and Hurley and the truckers, to gain admission to the place of business before the Manager, Wiedeke, who had the only other set of keys, arrived. Now particularly on the day of the accident, being a Monday and one of the busy days in respondent's business, as testified to by its Manager, it was necessary for decedent to arrive early and open the station. On that day Kosecoff had to enter the place of business and prepare the empty cases and shipping tags preparatory to...