Hebrank v. Parsons, Brinckerhoff, Hall & MacDonald

• Decision Date: 19 July 1965
• Docket Number: No. A--694,A--694
• Parties: Albert J. HEBRANK, Jr., Petitioner-Appellant, v. PARSONS, BRINCKERHOFF, HALL & MacDONALD, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 406

88 N.J.Super. 406

212 A.2d 579

Albert J. HEBRANK, Jr., Petitioner-Appellant, v. PARSONS, BRINCKERHOFF, HALL & MacDONALD, Respondent-Respondent.

No. A--694.

Superior Court of New Jersey Appellate Division.

Argued March 29, 1965.

Decided July 19, 1965.

James J. Gallagher, Caldwell, for appellant (Johnson & Gallagher, Caldwell, attorneys).

Samuel A. Bloom, Millburn, for respondents.

Before Judges GOLDMANN, SULLIVAN and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Petitioner appeals from a judgment of the Hunterdon County Court affirming the dismissal of his petition for compensation by the Division of Workmen's Compensation.

In September 1959 respondent was engaged in a survey project in connection with a proposed highway relocation in the Flemington-Clinton area. Petitioner, who had been in its employ for about five weeks, was sent down to the area as a member of the survey group on the project. He was to receive a weekly salary of $104 plus a $9 Per diem allowance for expenses. The latter sum was unrestricted and could be used in any manner that he saw fit. While not required by respondent to do so, petitioner chose to live near the location of the work, and so took a room in the White House Motel, Whitehouse, rather than return daily to his home in Caldwell, New Jersey. The survey chief, J. P Nealon, also took up residence at the same motel. According to petitioner, the decision that he and Nealon should live at the White House Motel was made by Nealon, but Nealon, while conceding that the company had used that motel before, stated that the decision was a mutual one. Ronald Jones, another member of the group, commuted back and forth from his home in Trenton.

The survey team had a company station wagon assigned to it. It was used to carry equipment, transport the members to and from the job site and perform other incidental tasks, such as finding a place to eat. The surveying equipment was kept in the station wagon.

On the evening of September 23, 1959 the survey group completed its work at about 4 P.M. Petitioner and Nealon then drove back to the motel in the station wagon, stopping at a tavern on the way. After showering, they took a nap until about 8 P.M. They then left for dinner in the station wagon, stopping on the way to visit some of Nealon's friends at a tavern in Clinton, eight miles to the west. There they assertedly consumed two or three beers but no hard liquor. They then went to a roadhouse at Pattenberg, some six miles further west where, it is conceded, each had two or three more beers. Thereafter, instead of returning to their motel, they drove south approximately 25 miles to a roadhouse or tavern known as the Rendezvous, located opposite Lambertville, at New Hope, Pennsylvania. They remained until closing time which was at approximately 2 A.M. Petitioner asserts that while there Nealon drank beer and cocktails while he drank only beer. However, Nealon averred that they both drank beer and cocktails. It was conceded that the trip was for their personal enjoyment and was in no way connected with their employment.

Upon leaving the cocktail lounge Nealon, who had been driving since they had left work at 4 P.M., gave the keys to petitioner, who thereupon took the wheel. At about 3 A.M., while en route to the motel and about eight miles from Whitehouse, petitioner lost control of the car, which went into a skid, left the road and eventually collided with a telephone pole. The resultant injuries to petitioner were of a serious nature and incapacitated him for a long period.

Following a full hearing the judge of compensation dismissed the petition on the ground that the accident did not arise out of and in the course of petitioner's employment, but had occurred during a deviation therefrom. He rejected respondent's additional contention that the injuries were not compensable because they were brought about by petitioner's voluntary intoxication. R.S. 34:15--7, N.J.S.A. The county judge affirmed the conclusions reached in the Division.

Petitioner argues that the facts establish that the accident in question arose both out of and in the course of his employment. These conclusions are postulated upon one or more of three propositions: (1) there was no deviation since respondent furnished petitioner with transportation and a Per diem living allowance and he was engaged on an errand which was within reasonable contemplation as incidental to his employment; (2) assuming a deviation, it had terminated prior to the accident and he was in the act of returning to his home on the job at the time of the accident; (3) he was performing a task which was of mutual benefit to him and his employer, or incidental to his employment, at the time of the accident.

Since the decision in Close v. Kordulak Bros., 44 N.J. 589, 210 A.2d 753 (1965), we are no longer required to weigh the evidence anew to determine whether the claimant has sustained the burden of proof of an accident arising out of and in the course of his employment by the preponderance of the evidence. Compare Russo v. United States Trucking Corp., 26 N.J. 430, 140 A.2d 206 (1958). Our scope of review is now the same as in any appeal in a nonjury case, i.e., 'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard of the opportunity of the one who heard the case to judge of the credibility of the witnesses. Close, supra, 44 N.J. at p. 599, 210 A.2d 753. In substance, the trial judge found that the Rendezvous was a place where there was music, dancing and--apparently--girls, and determined that petitioner's visit there was entirely disconnected from his employment, and that his abandonment of the employment relationship was so extended as to time and distance as to preclude restoration of the employer-employee relationship at the time of the accident. We accept the factual findings below as supported by sufficient credible evidence and proceed to determination of whether under such a state of facts the accident can be considered as having occurred out of and in the course of petitioner's employment. Bryant, Adm'x. v. Fissell, 84 N.J.L. 72, 86 A. 458 (Sup.Ct.1913).

Generally, an accidental injury sustained by an employee while going to or returning from his place of employment is deemed not to have arisen out of or been in the course of his employment. 1 Larson, Workmen's Compensation Law (1952) § 15.00; Ricciardi v. Damar Products Company, 45 N.J. 54, 211 A.2d 347 (1965); O'Brien v. First Camden Nat. Bank & Trust Co., 37 N.J. 158, 162, 179 A.2d 740 (1962); Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438 (E. & A.1938). To this rule, a number of exceptions have been recognized. Jasaitis v. City of Paterson, 48 N.J.Super. 103, 109--110, 137 A.2d 1 (App.Div.1957); O'Brien, supra, 37 N.J. at pp. 162--163, 179 A.2d 740; Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 96 A.2d 401 (1953); O'Regan v. New Jersey Hardware Co., 74 N.J.Super. 41, 180 A.2d 409 (Cty.Ct.1962); Neumeister v. Eastern Brewing Corp., 73 N.J.Super. 193, 179 A.2d 551 (App.Div.1962), certification denied 37 N.J. 88, 179 A.2d 416 (1962); Filson v. Bell Tel. Labs., Inc., 82 N.J.Super. 185, 197 A.2d 196 (App.Div.1964). Petitioner contends that he comes within one of such exceptions.

Petitioner first urges that the accident arose out of and in the course of his employment by virtue of his having been furnished with transportation and provided with a Per diem living allowance while quartered away from home. He argues that his activities on the evening in question were normal activities of respondent's employees, of which it is assumed to have been aware. His position on this point is summarized by the statement in his brief that he:

'* * * undertook a risk reasonably incidental to his employment and that it occurred while he was doing what a man So employed may reasonably do within the period of time of his employment and in a place where he may reasonably be while thus employed.'

Petitioner buttresses his argument upon Robinson v. Federal Telephone & Radio Corp., 44 N.J.Super. 294, 130 A.2d 386 (App.Div.1957), and order cases which will be discussed infra.

In Robinson, petitioner, a technician-employee of respondent was directed to go, with a fellow employee, to respondent's plant in Mississippi, where his services were required. The trip was made in an automobile owned and operated by the fellow employee, who was to be reimbursed by respondent on a mileage basis. Respondent also paid for food, lodging and other expenses incidental to the trip, and petitioner and his partner were free to set their own hours of travel, choose their own route and select their own places to eat and sleep. At the end of the first day, upon discovery of the fact that their motel did not possess eating facilities, they drove five miles to a restaurant, where they had dinner and drank some beer. They thereafter attended a local movie and stopped at a tavern for refreshment. They were on the return trip to the motel when their car collided with a utility pole. In a subsequent suit for compensation the employer sought to avoid liability upon the theory that, having registered at the motel, petitioner's employment-connected activity had terminated for the day until travel was resumed the following morning. In ruling that the accident was compensable, we held 'There should be no doubt that when an employer sends an employee on a journey for business reasons and argrees (sic) to pay for lodging and food in the course thereof, the service tie continues while the employee is engaged in a reasonable pursuit of his meals. And in the absence of any limitation imposed by the employer, an exercise of reasonable discretion as to the selection of the place where a particular meal is to be taken ought to be recognized. Risks and perils of...