Micieli v. Erie R. Co.

• Decision Date: 11 August 1943
• Docket Number: No. 232.,232.
• Citation: 33 A.2d 586,130 N.J.L. 448
• Parties: MICIELI v. ERIE R. CO.
• Court: New Jersey Supreme Court

130 N.J.L. 448

33 A.2d 586

MICIELI

v.ERIE R. CO.

No. 232.

Supreme Court of New Jersey.

Aug. 11, 1943.

COPYRIGHT MATERIAL OMITTED.

Proceeding under the Workmen's Compensation Act by Bertha Micieli, claimant, for death of Joseph Micieli, her 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 the employer brings certiorari.

Affirmed.

January term, 1943, before BODINE, HEHER, and PERSKIE, JJ.

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

Koch & Simon, of Paterson (Nathan Rabinowitz, of Paterson, of counsel), for respondent.

PERSKIE, Justice.

This is a workman's compensation case. N.J.S.A. 34:15-1 et seq., N.J.S.A. Broadly stated, the basic question for decision is whether the deceased employee died as the result of an accident arising out of and in the course of his employment. More specifically stated, the question for decision is whether the terms and conditions of the pass given to and accepted by decedent at the time of his employment and used by the decedent when he suffered fatal injuries while on his return from work to his home in one of prosecutor's public passenger trains should have barred, as urged, his widow's claim petition for compensation.

The meager facts which give rise to the stated question are stipulated. From the stipulated facts we learn that at the time of the accident (January 6, 1938) and for two years prior thereto, decedent, whose sole dependent was his wife (respondent here) with whom he lived in Paterson, N.J., was engaged and worked for prosecutor railroad company as a baggage porter at its terminal in Jersey City, N. J. Decedent worked six days a week from 10:00 p. m., to 7:00 a. m., at the rate of fifty cents an hour and earned $24 a week. His rate of pay was the same as that of any employee living in Port Jervis, N. Y., or in Jersey City, N. J. His duties were confined entirely to Jersey City and consisted of handling, sorting, routing and loading of mail, newspapers and baggage arriving at Jersey City from New York and destined to points within and without the State of New Jersey.

On January 6, 1938, decedent completed his work at his usual time (7:00 a. m.) and promptly thereafter boarded one of prosecutor's public trains which traveled from Jersey City to Paterson, N. J. As the train was moving into the Paterson station, at 7:33 a. m. at a speed of approximately 15 miles an hour, decedent was seen to jump off the train, run along the platform holding on to a grab handle, lose his footing, fall and roll under the train. He sustained fatal injuries.

At the time of the accident decedent had in his possession a railroad pass which had been given to him by prosecutor at the time of his employment. The pass reads as follows:

(Front)

‘Erie Railroad Company.

‘New York, Susquehanna and Western Railroad Co.

‘The New Jersey & New York Railroad Co.

‘Eastern District.

‘Not good on trains 1 and 2 except between Hornell and Buffalo, N. Y. 1937-1938

‘Pass Mr. Joseph Micielo

‘Account Extra Baggage porter (AIK)

‘Between stns. Jersey City, N. J. and Paterson, N. J.

‘Until December 31, 1938.

‘Valid when countersigned by A. E. Hoffman.

‘Countersigned A. E. Hoffman.

‘Unless otherwise ordered and subject to conditions on back.

W. M. White, General Manager.'

(Reverse side)

‘Conditions

‘A person accepting and using this free pass thereby assumes all risks of accidents, death, personal injury and loss of and damage to property whether caused by negligence of any railroad company named on the other side or negligence of any officer, agent or employee thereof or otherwise.

‘As a condition precedent to the issuing and use of this pass, each recipient represents that he or she is not prohibited by law from receiving such free transportation and agrees that this pass is gratuitously, and furnished no part of consideration for services and that none of said railroad companies shall be considered as a common carrier as to the transportation furnished thereon. (Italics supplied).

‘This pass is not transferable, and if presented by any other than an individual named thereon, the conductor will take up pass and collect fare. This free pass is accepted and used upon the above conditions.

‘(Signed) Joseph Micieli.

‘This pass will not be honored unless signed in ink or indelible pencil by the person or persons to whom issued.’

Although the parties by their stipulation reserved the right ‘to introduce evidence in connection with the conditions under which the pass was issued,’ nonetheless, for reasons not made to appear, no such evidence was introduced.

On the facts as stipulated, the deputy commissioner in the Bureau, on the holding in the cases of Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 189 A. 662, conformed to 118 N.J.L. 530, 193 A. 797, affirmed 120 N.J.L. 182, 198 A. 843, and Lehigh Navigation Coal Co. v. McGonnell, 120 N.J.L. 428, 199 A. 906, affirmed 121 N.J.L. 583, 3 A.2d 581, determined that decedent's death was the result of an accident which arose out of and in the course of his employment. Micieli v. Erie Railroad Co., 14 A.2d 56, 18 N.J.Misc. 466, 468.

On appeal to the Passaic County Court of Common Pleas, the judge of that court affirmed in all things the determination and rule for judgment in the Bureau. 20 N.J.Misc. 494, 29 A.2d 412. Prosecutor was allowed a writ of certiorari.

Although we do not seem to have a case ‘directly in point’ (cf. Fisher v. Tidewater Bldg. Co., 96 N.J.L. 103, 104, 114 A. 150, affirmed 97 N.J.L. 324, 116 A. 924, Laverty v. Ludington Management, Inc., 110 N.J.L. 410, 413, 166 A. 137), nevertheless, we have set down well defined principles. The general rule of law is that injuries sustained by a workman when going to or returning from his place of work are not considered as arising out of and in the course of his employment. Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 578, 579, 189 A. 662; Grady v. Nevins Church Press Co., 120 N.J.L. 351, 355, 199 A. 578; Grotsky v. Charles Grotsky, Inc., 121 N.J.L. 461, 3 A.2d 149, affirmed 124 N.J.L. 572, 12 A.2d 856. This rule, however, has its exceptions. Injuries sustained by a workman while he is provided with transportation when going to or coming from his work are considered as arising out of and in the course of his employment when such transportation, for examples, is the result of an ‘express agreement’ between the employer and his workman, or when it has ripened into a ‘custom’ to the extent and it is ‘incidental to,’ and ‘part of’, the ‘contract of employment,’ or when it is with the ‘knowledge and acquiescence of the employer,’ or when it is the result of a ‘continued practice’ in the ‘course of the employer's business' and which practice is ‘beneficial to both employer and employee.’ Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 578, 579, 189 A. 662, 664 and same case 118 N.J.L., 530, 532, 193 A. 797, see 21 A.L.R. 1223, Denver & R. G. W. R. Co. v. Industrial Comm., 72 Utah 199, 269 P. 512, 62 A.L.R. 1438; Cicalese v. Lehigh Valley R. Co., 75 N.J.L. 897, 69 A. 166; Depue v. George D. Salmon Co., 92 N.J.L. 550, 106 A. 379; Fisher v. Tidewater Bldg. Co. supra; Matthison v. Payne, 98 N.J.L. 87, 118 A. 771, affirmed 99 N.J.L. 285, 122 A. 926; Laverty v. Ludington Management, Inc., supra.

Thus whatever may be the rule of law elsewhere (see, Tallon v. Interborough Rapid Transit Co., 232 N.Y. 410, 134 N.E. 327, 21 A.L.R. 1218-a four to three decision), it is clear that with us the basis for the application of the exceptions to the general rule is not made to rest upon such refinement as to whether the instrumentality of transportation employed is one of a private nature and for the exclusive use of the workman (Rubeo cases supra; Laverty v. Ludington Management, Inc., supra), or whether the instrumentality of transportation employed is of a public nature, and for the general use by the public. Fisher v. Tidewater Bldg. Co., supra, Lehigh Navigation Coal Co. v. McGonnell, supra. Rather is the basis for our application of the exceptions to the general rule made to rest upon the conduct, the action of the parties with relation to the transportation of the workman to and from his work. Thus whether that conduct, that action, constitutes the relation of master and servant depends upon the particular facts of each case considered and determined. In this fashion, we give force and effect to the legislative mandate liberally to construe our Workmen's Compensation Act.

Before considering the facts in the case at bar, we desire to digress long enough to observe that we would ordinarily remand the case to the Bureau to take testimony, in accordance with the stipulated reservation, as to the conditions under which the pass was issued. But since no such testimony was supplied in the first instance, we assume that it was not available. Hence nothing is to be gained in so doing. At all events, respondent, represented by counsel, chose to submit her cause as stipulated. She stands or falls on that stipulation.

We turn to the facts. Our careful study of the facts as stipulated and the proper inferences to be drawn therefrom, ad measured by the judicial yard stick of the ‘preponderance of probabilities according to the common experience of mankind’ (cf. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 538, 6 A.2d 213, 216), satisfies us that respondent proved her right to compensation.

Concededly, prosecutor gave decedent the pass at the time he was employed about two years prior to his death. Prosecutor knew, or is charged with the knowledge, by the very words of the pass, that decedent lived in Paterson, N. J. It is, moreover, conceded by counsel for the parties in their respective briefs, notwithstanding the conflicting language of the pass, that ‘it ...