Green v. Bell Cleaners

• Decision Date: 24 January 1961
• Docket Number: No. A--992,A--992
• Citation: Green v. Bell Cleaners, 167 A.2d 815, 65 N.J.Super. 311 (N.J. Super. App. Div. 1961)
• Parties: Edward L. GREEN, Petitioner-Appellant, v. BELL CLEANERS, Respondent-Respondent. James E. WHITE, Petitioner-Appellant, v. BELL CLEANERS, Respondent-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 311

65 N.J.Super. 311

167 A.2d 815

Edward L. GREEN, Petitioner-Appellant, v.BELL CLEANERS, Respondent-Respondent.

James E. WHITE, Petitioner-Appellant, v.BELL CLEANERS, Respondent-Respondent.

No. A--992.

Superior Court of New Jersey Appellate Division.

Argued Jan. 3, 1961.

Decided Jan. 24, 1961.

Seymour B. Jacobs, Newark, for appellants(David Roskein and Jacob L. Balk, Newark, attorneys).

Richard J. S. Barlow, Jr., Trenton, for respondent(Lenox, Giordano & Lenox, Trenton, attorneys).

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

KILKENNY, J.A.D.

The petitioners, James E. White and Edward L. Green, filed claim petitions for workmen's compensation against their employer, Bell Cleaners.They sustained injuries, admittedly, as the result of an accident on October 26, 1957, while they were riding, en route from Wrightstown to Browns Mills, New Jersey, in a truck owned by their employer and driven by White.At the time of the accident, White was driving another employee, Robert Lomax, to his home in Browns Mills.

The Deputy Director dismissed both petitions.He found that White was never authorized by the respondent employer, either expressly or by implication, to drive the truck to Browns Mills, even though White was then driving Lomax from work to his home there.He concluded that this trip, four or five miles in a southerly direction, was such an unauthorized and material deviation from White's authorized, normal, and northwesterly course of travel between Wrightstown and his home in Yardley, Pa., as to constitute an abandonment by both petitioners of the employment relationship during the period of the deviation.

The Burlington County Court having affirmed the dismissal for the same reasons, the petitioners appealed to this court.As required in such cases, we have made a study and independent appraisal of the entire record for the purpose of making a determination according to our own considered judgment.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, 448, 140 A.2d 215(1958);Pellegrino v. Monahan McCann Stone Co., 61 N.J.Super. 561, 562, 162 A.2d 97(App.Div.1959), affirmed53 N.J. 73, 162 A.2d 109(1960).

The material facts are not in dispute.The respondent conducted a dry cleaning business within the confines of the Fort Dix military reservation.The petitioners were employed there by the respondent as a cleaner and presser respectively; and, in addition to his other duties, White drove one of respondent's four trucks.White, who lives in Yardley, Pa., more than twenty miles northwest of Fort Dix, had express authority from respondent to drive the panel truck, as a means of transportation to and from work.No special route of travel had been prescribed.Petitioner Green, who lived in Trenton, about eighteen miles northwest of Fort Dix and along White's usual course of travel, was advised by respondent's manager that he could ride daily with White to and from work.He did so, except on some occasions when White worked late and then the manager himself drove Edward Green home.Another employee, a Roger Green, not related to petitioner, who also lived in Trenton also rode daily to and from work in respondent's truck driven by White.Respondent's attorney admitted in the record that Rosen (respondent) was aware of the fact that White was picking up the two Green boys.The uncontradicted evidence establishes that it was customary for all of respondent's truck drivers to pick up any employee who was going in the same direction.Thus, besides the two Greens, White had also driven several other employees, going his way, on occasions prior to the accident.Even the respondent's manager and his foreman frequently gave rides to employees.As White testified, without contradiction:

'Every one did it and Mr. Rosen (respondent) knew about it and he never kicked.'

On the day of the accident, a Saturday and normally a short working day, petitioner Green, who finished work about 2 p.m., and Roger Green were picked up by White at Fort Dix at about 3:20 p.m. for their mutual customary homeward journey.About one mile from that pick-up, and as they approached Wrightstown, near the bus station there, they met another employee, Robert Lomax, who was walking along the road.White stopped the truck and picked up Lomax, who had missed his 3:22 p.m. bus.As White testified:

'I asked him where he was going and he said he was going home, so I said 'Well, I might as well take you because I don't have anything in particular to do."

Lomax lived in Browns Mills about four or five miles south of the Wrightstown bus station and in the opposite direction from White's ordinary homeward course.In fact, White never before had driven any fellow employee home by going south from Fort Dix; and, at the same time, there was no express prohibition against doing so.Lomax was the only one of respondent's employees who lived in Browns Mills or in that area.He had always been driven to work by his uncle.While he had never before been driven home by White, another of respondent's drivers, Freddie Newberry, had driven him home on two or three prior occasions, when he had worked late.Testifying as a witness for respondent, he admitted that it was 'customary among the men to pick you up from time to time,' and he felt free to ask any of respondent's drivers to pick him up, if going in his direction, 'if he was off.'Lomax had ridden on several prior occasions in the truck driven by White from the Fort Dix store in which he worked to Wrightstown, and sometimes in the morning from Wrightstown to the store.

After White picked up Lomax, at someone's suggestion White stopped at a Wrightstown liquor store, a few blocks away.Petitioner Green went in and purchased a pint of whiskey, with money 'chipped in' by all of them.The two Greens and Lomax drank the whiskey in the truck outside the liquor store.There is no affirmative evidence that White participated in that drinking; and White himself denied that he drank any of the whiskey.This interlude of drinking and conversation lasted about 45 minutes.Thereupon, White turned the truck around and started for Browns Mills.About 15 minutes later, at about 4:55 p.m., and slightly north of Browns Mills, while trying to pass a vehicle on route 545, a 24-ft. wide highway, White collided head on with a vehicle coming in the opposite direction.The injuries sustained by him and by Edward Green in that accident formed the basis of their claims for workmen's compensation.

Respondent set forth in his answer to White's petition the additional defense that White was intoxicated at the time of the accident and that his intoxication was the natural and proximate cause of his injuries.Such a defense is provided for in the statute, R.S. 34:15--7, N.J.S.A.However, at the conclusion of the testimony, the respondent conceded that this defense had not been proved and it was withdrawn.The Deputy Director expressly found the proof insufficient to support this defense and determined that the respondent was not able to prove it.The County Court made no finding as to the sobriety of either petitioner although it expressed an opinion that both petitioners had been drinking.

On appeal, however, the respondent urges that the drinking episode furnished proof of petitioners' abandonment of their employment status even though the evidence was insufficient to support the statutory defense of intoxication.Such an approach has been generally criticized.SeeOlivera v. Hatco Chemical Co., 55 N.J.Super. 336, 150 A.2d 781(App.Div.1959), certification denied30 N.J. 557, 154 A.2d 449(1959);andSecor v. Penn Service Garage, 19 N.J. 315, 324, 117 A.2d 12(1955).If the drinking interval was, as claimed, in itself an abandonment of employment, the abandonment had terminated when the journey was resumed.White v. Frank Z. Sindlinger, Inc., 30 N.J.Super. 525, 105 A.2d 437(App.Div.1954).The accident did not occur during the stop for the whiskey or while it was being consumed.The proofs were insufficient to show that any drinking was solely causative of White's injuries in the subsequent accident.Therefore, White would not be barred from recovery, even if he were then intoxicated.Kulinka v. Flockhart Foundry Co., 9 N.J.Super. 495, 505, 75 A.2d 557(Cty.Ct.1950).(Francis, J.C.C.), affirmed opinion below sub. nom. Bujalski v. Flockhart Foundry Co., 16 N.J.Super. 249, 84 A.2d 468(App.Div.1951), certification denied8 N.J. 505, 86 A.2d 321(1952).Of course, White's intoxication, if any, would not bar his fellow employee, Green.

Generally, injuries sustained by a workman while going to and returning from work are not considered as arising out of and in the course of the employment.But, as stated in Nicolasi v. Sparagna, 135 N.J.L. 131, 50 A.2d 867(E. & A.1947):

'injuries sustained by the workman while he is provided with transportation when going to or returning from his work are considered as arising out of his employment when such transportation is the result of an express or implied agreement between the employer and his workman, or when it has ripened into a custom to the extent that it is incidental to and part of the contract of employment, or when it is with the knowledge and acquiescence of the employer, or when it is the result of a continued practice in the course of the employer's business, and which practice is beneficial to both the employer and employee.'

The record discloses that the transportation of White to and from work in the respondent's truck was pursuant to express authority and agreement.The transportation of the petitioner Green was the result of the respondent's manager's advising him to ride with White.His doing so had ripened into such a daily custom that whenever White worked too late to give Green a ride home, the manager himself did so.The continued...