Levengood v. N.Y. Shipbldg. Corp...

Decision Date29 June 1946
Docket NumberNo. A-11268.,A-11268.
Citation48 A.2d 570
PartiesLEVENGOOD v. NEW YORK SHIPBUILDING CORPORATION.
CourtNew Jersey Department of Labor-Workmen's Compensation Bureau

OPINION TEXT STARTS HERE

Workmen's compensation proceeding by Harry N. Levengood, for personal injury opposed by New York Shipbuilding Corporation, before the New Jersey Department of Labor Workmen's Compensation Bureau.

Petition dismissed.

William E. Strouse, of Camden, for petitioner.

A. Millard Taylor and Carroll & Taylor, all of Camden, for respondent.

KRAFT, Deputy Commissioner.

The petitioner, Harry N. Levengood, seeks compensation from the respondent, New York Shipbuilding Corporation, alleging that on March 27, 1945, he sustained an accident arising out of and in the course of his employment with the respondent. The facts therein are not disputed. At the close of petitioner's case, the respondent moved for a dismissal, contending that the petitioner had failed to establish that he sustained an accident within the meaning of the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq.

It appears that the petitioner was employed with the New York Shipbuilding Corporation as a painter. The place of employment of the petitioner was in that portion of the shipyard located on the west side of Broadway. The time shed is also located there.

On March 27, 1945, petitioner drove his own vehicle to work and parked it on the east side of Broadway in a parking lot provided by the respondent for that purpose. On that date the petitioner was working on the 4 p. m. to 12 midnight shift on the west side of Broadway and when he finished his work for the day he walked to the time shed, punched his card, and then started for his car which was parked in the parking lot on the other side of Broadway. Petitioner testified that when he punched his card he had completed his work for the respondent for the day. He further testified that he had never returned to the yard after checking out.

The parking lot had previously been designated to him by the respondent as the one where he could park his car. When he reached his car, he found that it had a flat tire. He did not have a jack but was able to borrow one from the shipyard. While petitioner was engaged in placing the jack under it, another car driven by another employee struck petitioner in the legs, causing the injury complained of.

In cases of this nature, we are faced with the ever-perplexing question of determining whether the relationship of employer and employee existed at the time of the injury, or whether such relationship had ceased and the employee was on his own.

‘An accident arises ‘out of’ the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it. * * * A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * * And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.' Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458, 461.

A long line of cases have held the Workmen's Compensation Act to be remedial legislation and that the construction to be accorded it must be liberal in an attempt to meet its scope and purposes. However, we cannot ignore the plain language of the statute and make the employer an insurer for all injuries suffered by the employees. Belyus v. Wilkinson Gaddis & Co., 115 N.J.L. 43, 178 A. 181.

In Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438, the petitioner was employed by the respondent and while proceeding to work one morning a few minutes before time to commence work, she slipped on ice on the side-walk in front of an entrance to the factory which she did not intend to use and was injured. The Court denied recovery, holding that the injury did not arise out of or in the course of her employment and stated: ‘In seeking the proper construction of the statute, where is the boundary between employment and nonemployment to be found if not in the facts of the present case? Is it when the employee is within a few feet of the place of employment, but still on the public highway in no way connected therewith, and not where the distance intervening is multiplied few or many times? Is it when one starts on the journey from home to factory? If not, at what point between does employment begin? There must come a time when the employee is on his own. At the moment of the accident the respondent was not in employment. The time and place were her own; she could proceed or turn back. She was in no sense in the service of the employer at the moment.’

In Grady v. Nevins Church Press Co., 120 N.J.L. 351, 199 A. 578, the petitioner was about...

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4 cases
  • Rice v. Pharmaceuticals, Inc.
    • United States
    • New Jersey Superior Court — Appellate Division
    • March 3, 1961
    ...dropped on his left hand. His claim was held compensable. The Buerkle case expressly rejected the rule of Levengood v. New York Shipbuilding Corp., 24 N.J.Misc. 273, 48 A.2d 570; (W.C.B.1946), in which the Workmen's Compensation Bureau denied compensation to an employee injured while changi......
  • Buerkle v. United Parcel Service, A--344
    • United States
    • New Jersey Superior Court — Appellate Division
    • June 18, 1953
    ...employment. The tribunals below relied in some considerable measure upon a Department of Labor case, Levengood v. New York Shipbuilding Corp., 48 A.2d 570, 24 N.J.Misc. 273 (W.C.B.1946). We agree that the decision is quite analogous and to the extent that it is inconsistent with our present......
  • Theberge v. Pub. Serv. Electric & Gas Co.
    • United States
    • New Jersey Department of Labor-Workmen's Compensation Bureau
    • February 3, 1947
    ...conduct, free from the master's supervision, could impose no liability upon the master. * * *' In Levengood v. New York Shipbuilding Corporation, 48 A.2d 570, 24 N.J.Misc. 273, a petitioner was denied compensation against his employer where he was in his employer's parking lot changing a ti......
  • Garden State Racing Ass'n v. N.J. Racing Comm'n
    • United States
    • New Jersey Supreme Court
    • July 30, 1946

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