Hornyak v. Great Atlantic & Pac. Tea Co.

• Decision Date: 21 May 1973
• Citation: 63 N.J. 99,305 A.2d 65
• Parties: Michael HORNYAK, Plaintiff-Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 99

63 N.J. 99

305 A.2d 65

Michael HORNYAK, Plaintiff-Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Feb. 20, 1973.

Decided May 21, 1973.

Ruth Rabstein, Trenton, for appellant (Pellettieri & Rabstein, Trenton, attorneys).

Thomas J. Mannion, Jr., Camden, for respondent (Capehart & Scatchard, Camden, attorneys).

The opinion of the Court was delivered by

JACOBS, J.

The Appellate Division, in an unreported opinion, affirmed the denial of a workmen's compensation award to the plaintiff; we certified on his application. 62 N.J. 188, 299 A.2d 722 (1972).

The plaintiff was employed as a shipper in the respondent's distribution warehouse at Cedar Lane, Florence, New Jersey. His working hours were from 9:30 P.M. until 6 or 7 A.M., with two coffee breaks of 15 minutes each and a half hour lunch period from 1:30 to 2 A.M. He had to check in when entering the premises at 9:30 P.M. and check out when leaving the premises at 6 or 7 A.M.; but he did not have to check out when he left the premises for lunch or check in when he returned. Although there was a lunchroom at the premises, no food was available there. Normally about 20 or 25 employees would bring their own lunch and eat in the lunchroom where drinks could be obtained from vending machines. Most of the 85 or so employees would customarily leave the premises and have lunch in nearby Bordentown or Burlington eating places. The supervisory employees knew of this practice and there had never been any suggestion that it was not permissible.

On December 14, 1968 the plaintiff went to the Burlington diner during his 1:30--2 A.M. lunch hour. The diner is located about six miles south of the warehouse on Route 130 and was, at that time of night, the nearest place to eat. The plaintiff had his lunch and was in the course of returning to the warehouse. When he was about two and a half blocks away, at about 1:55 A.M., his car was involved in an accident. He was seriously injured, was taken to the Rancocas Valley Hospital where he remained for a week, and was later treated by several physicians. In due course he filed a claim petition for compensation in the Department of Labor and Industry, Division of Workmen's Compensation. The Division dismissed the petition under the judge-made 'going and coming' rule which has often precluded employees from obtaining denied, 27 N.J. 75, 141 A.2d 318 by them on their way to and from work. See Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 214, 96 A.2d 401 (1953); 1 Larson, The Law of Workmen's Compensation § 15 (1972); 8 Schneider, Workmen's Compensation Text § 1710 (1951). The Division took the position that 'when the employee is given time off to leave the premises to have his meals, logic supports the holding that an injury during that interval does not arise out of and in the course of employment.' This position was adhered to in the County Court which affirmed the dismissal of the complaint. The Appellate Division affirmed the County Court's judgment in a Per curiam reading as follows:

The most recent determinations by our Supreme Court hold to the proposition that, although subject to various exceptions, as well as some criticisms, the 'coming and going' rule is still in effect in this State. Bergman v. Parnes Brothers, Inc., 58 N.J. 559 (279 A.2d 660) (1971); Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7 (264 A.2d 204) (1970). In view of the fact that the circumstances attending the injury of from the picnic and that no wages were the recognized exceptions to the rule (including Jones v. Continental Electric Co., 75 N.J.Super. 76 (182 A.2d 168) (App.Div.1962), certif. den. 38 N.J. 312 (184 A.2d 423) (1962)), he is not entitled to compensation.

Our Workmen's Compensation Act (N.J.S.A. 34:15--1 et seq.) is humane social legislation designed to place the cost of work-connected injury on the employer who may readily provide for it as an operating expense. The Act sets forth that compensation shall be paid for death or injury by accident arising out of and in the course of the employment. N.J.S.A. 34:15--7. Shortly after its original passage the former Supreme Court noted that an accident arises out of the employment if it results from a risk 'reasonably incidental' thereto and that it arises in the course of the employment 'if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.' Bryant, Adm'x v. Fissell, 84 N.J.L. 72, 77, 78, 86 A. 458, 460 (Sup.Ct.1913). Later cases have expressed the same thoughts in Pacific Tea Co., 56 N.J. 7, 264 A.2d 204 Wilkinson, Gaddis & Co., 115 N.J.L. 43, 47, 178 A. 181 (Sup.Ct.1935), aff'd, 116 N.J.L. 92, 182 A. 873 (E. & A.1936); Beh v. Breeze Corporation, 2 N.J. 279, 282, 66 A.2d 156 (1949); Secor v. Penn Service Garage, 19 N.J. 315, 320, 117 A.2d 12 (1955); Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586, 147 A.2d 783 (1959). And very recently this Court, stressing the liberal legislative intent to have the employer's enterprise 'absorb the injuries reasonably related to it', expansively construed the statutory language to apply to an injury not actually inflicted until after termination of the employment but the cause of which admittedly originated in the employment. See Thornton v. Chamberlain Manufacturing Corp., 62 N.J. 235, 242, 300 A.2d 146 (1973).

At no point has the Legislature altered the sweeping generality of the statutory terms and it has consistently left their definition 358 (App.Div.1973); Cf. Brousseau v. They, in turn, have conscientiously sought to evolve liberally just lines between those accidental injuries which may fairly be said to have some work connection and those which may fairly be said to be unrelated to the employment. Right from the start it was understood that it was not necessary that the employee actually be working at his machine or elsewhere within his employer's premises to satisfy the statutory formula. See Blovelt v. Sawyer, (1904) 1 K.B. 271; Rowland v. Wright, (1909) 1 K.B. 963; Hanna v. Erie Railroad Co., 8 N.J.Misc. 829, 152 A. 179 (Sup.Ct.1930); Cf. Waskevitz v. Clifton Paper Board Co., 7 N.J.Super. 1, 71 A.2d 646 (App.Div.1950); Crotty v. Driver Harris Co., 49 N.J.Super. 60, 139 A.2d 126 (App.Div.), certif. denied, 27 N.J. 75, 141 a,2d 318 (1958); Jones v. Continental Electric Co., Inc., 75 N.J.Super. 76, 182 A.2d 168 (App.Div.), certif. denied, 38 N.J. 312, 184 A.2d 423 (1962). In Jones a watchman was killed while crossing the street in front of his employer's plant on the way to a nearby diner where he planned having his midnight lunch; in his opinion holding that the death arose out of and in the course of the employment, Judge Gaulkin cited the settled doctrine that the continuity of the employment is not interrupted by acts of personal comfort such as stopping work to have a smoke or to get some fresh air and that this 'is not limited to acts performed on the employer's premises.' 75 N.J.Super. at 82, 182 A.2d at 171; Cf. Zabriskie v. Erie R.R. Co., 86 N.J.L. 266, 92 A. 385 (E. & A.1914).

In Ricciardi v. Damar Products Co., 45 N.J. 54, 211 A.2d 347 (1965), the employee was injured while returning home from a picnic sponsored by her employer. The picnic was at a place other than the work premises but this was held to be immaterial (45 N.J. at 60, 211 A.2d 347); similarly, it was held to be immaterial that the employees were free to attend or stay away from the picnoic and that no wages were paid for that nonworking day to those who did or did not attend (45 N.J. at 59, 211 A.2d 347). In response to the employer's contention that the award was barred by the going and coming rule, this Court, speaking through the present Chief Justice, pointed out that the rule was 'not free from dispute since travel to and from the place of work quite obviously is essential to the work itself' (45 N.J. at 61, 211 A.2d at 350); and, after noting that the 'uneasy footings' of the rule had led to many exceptions, it held that the case before it could justly be brought within one of them. 45 N.J. at 61--62, 211 A.2d 347. In commenting on Ricciardi, the author of the note in 20 Rutgers L.Rev. 599 (1966) voiced the thought that 'if an employee may recover for injuries sustained on the way to or from a company picnic, from which the employee is free to stay away without financial loss or employer displeasure, it is difficult to conceptualize how a worker may be denied compensation for injuries sustained while going to or from his regular place of work, which he is obliged to attend.' 20 Rutgers L.Rev. at 617.

In Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7, 26j A.2d 204 (1970), an award was sustained though the injury occurred outside the employer's plant while the employee was en route to a street corner where she was to be picked up by a coemployee for her ride home. The situation was brought within an exception to the going and coming rule but Justice Proctor, in his opinion for this Court, took occasion to express general disapproval of the rule itself. He referred to it as one which has produced 'many harsh results' leading to exceptions so numerous, they have almost 'swallowed' the rule. 56 N.J. at 11:12, 264 A.2d 204. See Bergman v. Parnes Brothers, Inc., 58 N.J. 559, 279 A.2d 660 (1971); Williams v. Remco Industries, 118 N.J.Super. 481, 288 A.2d 586 (App.Div.), certif. denied, 61 N.J. 163, 293 A.2d 393 (1972); DiNardo v. Newark Bd. of Ed., 118 N.J.Super. 536, 289 A.2d 259 (App.Div.1972); Pearce v. N.J. Highway Authority, 122 N.J.Super. 342, 300 A.2d 358 (App.Div.1973); Cf. Brousseau v. Blackstone Mills, 100 N.H. 493, 130 A.2d 543 (1957); Schreifer v. Industrial Accident Commission, 61 Cal.2d 289, 38 Cal.Rptr. 352, 391 P.2d 832 (1964); Guest v. Workmen's Compensation Appeals Board, 2 Cal.3d 670, 87 Cal.Rptr. 193, 470...