Jones v. Continental Elec. Co.

• Decision Date: 13 June 1962
• Docket Number: No. A--793,A--793
• Citation: 75 N.J.Super. 76,182 A.2d 168
• Parties: Elizabeth JONES, Petitioner-Respondent, v. CONTINENTAL ELECTRIC CO., Inc., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 76

75 N.J.Super. 76

182 A.2d 168

Elizabeth JONES, Petitioner-Respondent, v. CONTINENTAL ELECTRIC CO., Inc., Respondent-Appellant.

No. A--793.

Superior Court of New Jersey Appellate Division.

Argued Jan. 15, 1962.

Decided June 13, 1962.

Isidor Kalisch, Newark, for appellant.

John S. Giava, Newark, for respondent.

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

The Division and the County Court awarded petitioner workmen's compensation for the death of her husband, Thomas Jones, and the employer, Continental Electric Co., Inc., (Continental) appeals.

Jones had been employed as a watchman by Continental for 12 years. At the time he was killed, his shift was from 7 P.M. to 7 A.M. The evidence does not reveal precisely what his duties were. The only thing that does appear is that he was required to make rounds of the plant, punching American District Telegraph (A.D.T.) clocks at stated intervals. We do not know how many clocks there were, or the length of the intervals. The plant consisted of three buildings, the main one fronting on the south side of Ferry Street. The two smaller buildings were on the opposite side of the street. Jones was therefore required to cross Ferry Street in making his rounds. There is no evidence that the employer gave any instructions as to the point on Ferry Street at which Jones was to cross. The main building was between Main Street and Magazine Street, but both these streets made T intersections with the southerly line of Ferry Street. There were no traffic lights or marked crosswalks at these intersections. The nearest complete intersection was at Fillmore and Ferry Streets, approximately 575 feet west of the plant buildings. This intersection did have a marked crosswalk and was controlled by traffic lights.

There was no cafeteria or other eating facilities on the premises during the night, except coffee and soft drink machines. There is no evidence that the employer had any rules or gave any instructions as to Jones' time, place or opportunity to eat. Obviously Jones would be expected to eat during the 12 hours of his shift. As the court said in Bollard v. Engel, 254 App.Div. 162, 4 N.Y.S.2d 363, 365 (App.Div.1938), affirmed, 17 N.E.2d 130 (Ct.App.1938), and cited with approval by Judge (now Justice) Jacobs in Bradley v. Danzis Pharmacy, 5 N.J.Super. 330, 69 A.2d 36 (App.Div.1949), 'In order that a workman may continue to render service it is essential that he should eat.'

Mrs. Jones testified that Jones usually took food with him from home, or she or their son brought it to him. However, on the night in question he had left his home without taking food and without arranging to have it brought to him. He told Mrs. Jones he 'would get something later,' which would indicate that on occasion, during the 12 years he worked for Continental, he had purchased food during his hours of duty. There is nothing in the evidence that indicates that he was forbidden to leave the premises or deviate from his rounds for that purpose. Where the death of an employee occurs before he has an opportunity to tell why he was where he was, and doing what he was doing when he was injured, the courts are satisfied with 'very scanty circumstantial evidence that the accident arose out of, and in the course of, the employment.' Macko v. Herbert Hinchman & Son, 24 N.J.Super. 304, 94 A.2d 690 (App.Div. 1953); Olivera v. Hatco Chemical Co., 55 N.J.Super. 336, 150 A.2d 781 (App.Div. 1959), certification denied 30 N.J. 557, 154 A.2d 449 (1959).

About midnight he told Frank J. Zvolensky, a power press operator in the main building, and the only other employee in the plant, that he was going out for a sandwich and for Zvolensky to answer the telephone while he was gone. It is admitted that this was the customary arrangement when Jones was out of the main building. Jones did not say how long he would be gone, but he knew Zvolensky's shift ended at 12:30. There was no testimony as to when Jones was due to punch the next clock, or in which building. However he took with him the keys which he would have to have to enter any of the three buildings.

About five minutes after he left the main building Jones was killed on Ferry Street by an automobile. His body was found on or near the crosswalk running from the southeasterly to the northeasterly corners of Ferry and Fillmore Streets. On the northeast corner there was a diner. There was no proof that there was any place closer to the plant open at that hour where food could be bought. Indeed, there was no proof that even the diner was open and, of course, none that Jones had been there. If Jones did intend to enter the diner, there is no proof whether he intended to eat at the diner or to buy a sandwich to take out.

The employer contends that death did not occur in the course of decedent's employment and did not arise out of the employment. It admits that '(e) mployees who, within the time and place of their employment, engage in acts which minister to personal needs do not thereby leave the course of their employment Unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred,' quoting from Crotty v. Driver Harris Co., 49 N.J.Super. 60, 139 A.2d 126 (App.Div.1958) (emphasis the employer's). It argues, however, that when Jones went to the intersection 575 feet from the nearest plant door, and there crossed Ferry Street to get something to eat, the extent of the departure was so great that the intent to abandon the job temporarily must be inferred, just as when an employee goes home for lunch. But what would the employer have had Jones do? As we have said, there is no proof that the employer required Jones to bring his lunch, and the employer gave him no time off to leave the plant to eat. Was Jones then not to eat? In the absence of proof of specific instruction to that effect, that would be an unreasonable assumption. Green v. DeFuria, 19 N.J 290, 116 A.2d 19 (1955); Bollard v. Engel, supra. Therefore, we must assume that the employer contemplated, at least, that at times the employee would go out to buy something to be brought back and eaten in the plant. Since there does not appear to have been any place closer to the plant to make such a purchase, going 575 feet to the corner could not have been an unexpected deviation. Cf. 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). Nor was it a material deviation. He left Zvolensky on the premises, and for aught that appears, he intended to be back in a very few minutes. Cf. Green v. DeFuria, supra. On Ferry Street Jones was within sight and sound of the plant, and probably in as good a position to watch the two smaller buildings as if he had been in the main building. And, as we have said, there is no indication that the trip to the diner would have made him late for the next clock punch.

There is nothing to indicate what, if anything, Jones was required to do between the times that he punched clocks. Presumably, he would 'watch' (whatever that entailed) the interiors of the buildings while going from clock to clock, and the exteriors and the surrounding areas while passing from building to building. There is nothing to indicate that the deviation (if it was one) interfered in any way with his duties, or detracted from their efficient performance.

Being a watchman, and having no fixed hour or place to eat, Jones had the right to eat anywhere on the premises which he was not forbidden to enter. Cf. Robertson v. Express Container Corp., 13 N.J. 342, 99 A.2d 649 (1953); Green v. DeFuria, supra. He could have eaten, if he chose, while walking from building to building, even while crossing Ferry Street, and if he had been injured while doing so it would have been compensable. Since his job was to watch outdoors as well as indoors he could have eaten out of doors, if he so desired--provided, of course, he punched the A.D.T. clocks on time and did not go so far away from the buildings as to be materially unable...