Lee v. Fish
| Decision Date | 06 January 1938 |
| Citation | 196 A. 662 |
| Parties | LEE v. FISH et al. |
| Court | New Jersey Supreme Court |
Proceeding under the Workmen's Compensation Act by Edward Lee, claimant, for the death of Raymond Lee, his son, opposed by Morris Fish, trading as Fish Bros., employer, and the American Motorists Insurance Company, insurer. On determination of facts and rule for judgment.
Judgment for petitioner.
William Fogel, of Newark (David Riskein, of counsel), for petitioner. Stanley U. Phares, of Elizabeth, for respondents.
STAHL, Deputy Commissioner.
A dependency claim petition for compensation having heretofore been filed, claiming compensation for dependency and funeral benefits under an act of the Legislature commonly referred to as the Workmen's Compensation Act, Comp.St.Supps. § **236 —1 et seq.; and an answer was duly filed by the respondent denying the material allegations thereof.
There are two issues presented to me for determination: First, did the accident which the petitioner's decedent admittedly sustained on October 22, 1936, when he fell from an autotruck owned by the respondent as it was proceeding on the public highway in the city of Newark, arise out of and in the course of his employment with the re-spondent; and, secondly, was Edward Lee, father of the decedent employee, a legal dependent within the terms of the Workmen's Compensation Act, and, if so, was such dependency partial or total?
From the testimony of the various witnesses adduced, it appears that on October 22, 1936, the petitioner's decedent was in the employ of the respondent as a helper in his business as wholesale grocer, which business was operated on Cornelia street, Newark, N. J. On the day in question, at about 1 a. m., as was his custom, he went upon the truck of his employer preparatory to being taken home after the close of the day's business. The said truck was operated by the respondent's brother, Leonard Fish, who was the manager of the respondent's business. It further appears that the decedent lived on the route between the employer's place of business and the garage where the said truck was nightly stored. I further find from the testimony that it was the custom of the employer, through his brother, Leonard Fish, to call for the decedent regularly on Sundays and take him to the respondent's place of business in order to aid the respondent in opening his business on time; this with the knowledge and acquiescence of the employer over a long period of time. The testimony is clear and convincing that the transportation was furnished by the respondent. I am satisfied that the furnishing of the said transportation by the employer was grounded in the mutual convenience and advantage of both the employer and employee. They engaged in this practice until the same ripened into custom. It is clear that the furnishing of the said transportation was for the benefit of both parties. I feel that the same comes clearly within the rule established and so well expressed in the cases of Rubeo v. McMullen Co., 117 N.J.L. 574, 189 A. 662; Id., ...
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