Micieli v. Erie R. Co.

• Decision Date: 13 April 1944
• Docket Number: No. 40.,40.
• Citation: Micieli v. Erie R. Co., 131 N.J.L. 427, 37 A.2d 123 (N.J. 1944)
• Parties: MICIELI v. ERIE R. CO.
• Court: New Jersey Supreme Court

131 N.J.L. 427

37 A.2d 123

MICIELI

v.ERIE R. CO.

No. 40.

Court of Errors and Appeals of New Jersey.

April 13, 1944.

Appeal from Supreme Court.

Proceeding under the Workmen's Compensation Act by Bertha Micieli, claimant, for death of Joseph Micieli, hen husband, opposed by the Erie Railroad Company, employer. An award of the Workmen's Compensation Bureau, 14 A.2d 56, 18 N.J.Misc. 466, for claimant was affirmed by the Court of Common Pleas, 29 A.2d 412, 20 N.J.Misc. 494, and by the Supreme Court, 130 N.J.L. 448, 33 A.2d 586, and the employer appeals.

Affirmed.

Hobart, Minard & Cooper, of Newark (John J. Gaffey, of Newark, of counsel), for prosecutor-appellant.

Isadore Rabinowitz and Nathan Rabinowitz, both of Paterson, for defendant-respondent.

BROGAN, Chief Justice.

The question in this case is whether compensation should be paid to petitioner under our Workmen's Compensation Act (34:15-1, et seq.), based upon the death of her husband, killed on his journey homeward, as he traveled on the employer's railroad, using a pass for such transportation provided by the employer. Compensation was allowed in the Bureau; on appeal, the Court of Common Pleas affirmed; and on certiorari, the judgment was sustained.

A lucid exposition of the facts and the controlling law appears in the opinion of Mr. Justice Perskie for the Supreme Court. 130 N.J.L. 448, 33 A.2d 586. The Supreme Court determined, among other things, first, that the relation of master and servant between the employer and the employee continued, under the circumstances, on the decedent's homeward journey; second, that the railroad pass which Micieli used in his transportation, limited as it was to travel from Paterson, N. J., where he resided, to Jersey City, N. J., where he worked, and back, was not designed to determine his status as employee under our Workmen's Compensation Act. The first proposition is completely supported by the authorities cited by the Supreme Court; the second is removed from doubt by the fact that an employee suffering injury or death by accident arising out of and in the course of his employment, in cases where the Workmen's Compensation Act is controlling, is not free to release his employer by agreeing that he ‘assumes all risk of accidents, etc., * * * whether caused by negligence of any railroad company named’ on the pass, as in this case. To state it differently, if the injury or death by accident occurred at a time and place where otherwise it would be compensable, as in this case (compare Rubeo v. Arthur McMullen, etc., 117 N.J.L 574, 578, 189 A. 662; Id., 118 N.J.L. 530, 532, 193 A. 797, affirmed 120 N.J.L. 182, 198 A. 843; Laverty v. Ludington, etc., 110 N.J.L. 410, 166 A. 137, and cases cited therein); the fact that the employee was using a pass supplied by his employer for travel to and from his place of employment, does not put the employer outside the sphere of liability. The words on the pass quoted above served to delineate the user as one who released the carrier from liability for breach of duty imposed by the common law and by statute. Those words and the others printed on the pass, that the pass was ‘given gratuitously’ and not as a consideration for services, cannot be invoked to justify a surrender of the employee's rights, under the statute, supra, if otherwise he was entitled to such rights by the statute and our decisions, supra. Micieli therefore was not competent to narrow his own rights or restrict the employer's liability under the Workmen's Compensation Act.

On the main question the general rule is that an employee who is carried to and from his place of employment as part of his contract or service, or as a privilege incidental thereto with no deduction from his regular wages for such transportation, is considered by the weight of authority to be a servant, and not a passenger. See 10 Amer.Juris. p. 37, sec. 973, and cases cited. (Italics above supplied.) This principle is apt in this case; and the cases in this country are generally in accord. See 62 A.L.R. 1445; 145 A.L.R. 1035. The English rule was not to the contrary until the decision of the case, St. Helens Coliery Co. v. Hewitson (1924) A.C. 59. It is to be noted that in that...