Rafferty v. Dairymen's League Coop. Ass'n, Inc.

• Decision Date: 11 June 1938
• Citation: 200 A. 493
• Parties: RAFFERTY v. DAIRYMEN'S LEAGUE COOP. ASS'N, Inc.
• Court: New Jersey Supreme Court

200 A. 493

RAFFERTY

v. DAIRYMEN'S LEAGUE COOP. ASS'N, Inc.

New Jersey Department of Labor—Workmen's Compensation Bureau.

June 11, 1938.

Proceeding under the Workmen's Compensation Act by Pauline C. Rafferty, claimant, for the death of her husband, opposed by the Dairymen's League Co-operative Association, Incorporated, employer.

Compensation awarded claimant.

Maurice J. Cronin, of Jersey City (George R. Milstein and Benjamin Dowden, both of Jersey City, and Edwin J. O'Brien, of Newark, of counsel), for petitioner. larence B. Tippett, of New York City, for respondent.

N J. STAHL, Deputy Commissioner.

>

The undisputed facts as developed in the evidence are essentially as follows: On December 2d, 1936, and for more than nine years prior thereto, William Francis Rafferty, petitioner's decedent, was employed by the respondent in the capacity of sales supervisor in the metropolitan area. While his duties were primarily confined to selling the respondent's products and obtaining new accounts, with full charge over the several salesmen in the metropolitan district, he was frequently called upon to perform special duties such as to entertain customers at the respondent's expense and to attend various banquets at which the trade was represented. These special assignments were in addition to his regular work and invariably required the decedent's presence during the evenings—some of these functions lasting until the early hours of the morning. He received for his said services a salary of $250 per month, together with the use of an automobile furnished and maintained by the respondent. It so happened that the decedent was called upon to attend a dinner of the New York Restauranteurs' Association on November 30th, 1936, which was held at Kean's Chop House in New York City. This affair broke up early enabling him to arrive at his home in Maplewood before midnight. On December 1st, 1936, after finishing his regular day's work, he was instructed by a Mr. Robert M. Mason, his immediate superior, to attend a banquet of the New York and New Jersey Milk Institute which was being held that evening at the Pennsylvania Hotel. Leaving the respondent's office at No. 11 East Forty-Second street, New York City, in the company of Edward C. Polley, a fellow-salesman, decedent drove to the hotel in his company-assigned car, arriving at the banquet hall a few minutes after seven o'clock. He was joined there by several other members of the respondent's sales staff, including Mr. Mason. At eleven-thirty P. M., after the banquet was over, decedent journeyed to Hotel New Yorker, where a group of respondent's customers was being entertained by Mr. Polley. A private suite of rooms had been engaged for the affair, and cocktails and hors d'oeuvres were served to the guests—the expenses of which were borne by the respondent. The festivities came to an end sometime between three and four o'clock in the morning at which time most of the guests, including the decedent, left the hotel presumably for their respective homes. The weather at that hour was stormy and. a light snow had covered the ground. Several hours later, Charles Miller, night watchman of the Western Union Telegraph Company, in making his usual rounds, noticed decedent's car draw up to the curb and stop in front of his employer's premises, situated at the foot of Hudson street, Jersey City, adjacent to the Morris canal basin. Hudson street begins at Exchange Place, one block east of the Pennsylvania Railroad ferryhouse, runs parallel with the Hudson river, and ends at the Morris canal basin—there being no fence or barrier at the foot of said street to serve as a protection to the motorist and traveling public from the waters thereof. At approximately seven-thirty A. M., several of the Western Union employes began to arrive for work and because decedent's car was partly obstructing the driveway leading from the street to the Western Union cable house they proceeded to push the car a few-feet ahead in order to clear the driveway. Peering inside the car they observed the decedent apparently asleep and upon arousing him from his slumber they found him to be all right except that he appeared tired and in want of sleep. A short time later their attention was attracted when the car started in motion in a forward direction and plunged into the icy waters of the Morris canal basin less than seventy-five feet away from where it had been parked. Their frantic efforts to rescue the decedent proved of no avail for although the car was retrieved within ten or fifteen minutes by means of grappling hooks and a winch, equipment of the Western Union Telegraph Company, death had already taken its toll. It is by reason of Rafferty's death that the petitioner, Pauline C. Rafferty, his lawful widow and the mother of his two infant children, Diane Marie Rafferty, a daughter born February 26th, 1928, and William Francis Rafferty, a son born September 22d, 1932, brings this proceeding to recover compensation from the respondent on the ground that his death occurred as a result of an accident, arising out of and in the course of his employment.

The burden of proof rests upon the petitioner to establish her right to compensation. The rule applicable to the case under consideration is ably stated by Mr. Justice Trenchard in Bryant v. Fissell, 84 N.J. L. 72, 86 A. 458, 460, that "the burden of furnishing evidence from which the inference can be legitimately drawn that the death of an employe was caused by 'an accident arising out of and in the course of his employment' rests upon the claimant."

While there is no question but that the decedent met his. death by accidental drowning on the morning of December 2d, 1936, when his car plunged into the Morris canal basin, the respondent controverts petitioner's right of recovery upon the ground that his death was not the result of a compensable accident within the meaning and purview of the Workmen's Compensation act, R.S.1937, 34:15-1 et seq.

The sole issue raised, therefore, is whether or not Rafferty's death resulted from an accident arising out of and in the course of his employment with the respondent.

Upon carefully considering the evidence in the case and upon making an exhaustive research of the authorities, I feel reasonably satisfied that the accident which occasioned the death of Rafferty by drowning arose both out of as well as in the course of his employment. The words "out of" relate to the origin or cause of the accident; the words "in the course of," to the time, place and circumstances under which the accident takes place. The former words relate to the character of the accident, while the latter words relate to the circumstances under which the accident takes place. An accident comes within the latter words if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed and at a place, where he may reasonably be during the time to do that thing. The accident, in order to arise "out of" the employment, must be of such nature 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.

As a general rule an accident occurring to an employe, away from the employer's premises while going to or returning from work does not arise out of and in the course of the employment. There are, however, exceptions to this rule, which, for the sake of convenience, I shall classify under four groups or headings, as follows:

(1) Where Transportation is Furnished by the Employer to and from the Place of Employment. An injury sustained by an employe while riding to or from the place of employment in a conveyance furnished by the employer in compliance with the terms of the contract of hire or upon the ground of mutual benefit arises out of and in the course of the employment. Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 189 A. 662; Alberta Contracting Corp. v. Santomassimo, 107 N.J.L. 7, 150 A. 830.

(2) Where the Use of an Automobile on Other Form of Vehicle is Required in the Performance of the Contract of Service. The law is well settled in this state that an employe, authorized or required to use an automobile by his employer in the ful filling of his contract of service, is still within the course of his employment while driving from the point of last call to his home where the car is garaged. Demerest et al. v. Guild et al., 114 N.J.L. 472, 176 A. 558; Sanford v. Charles H. Totty Co., 110 N.J.L. 262, 164 A. 458; Auer v. Sinclair Refining Co., 103 N.J.L. 372, 137 A. 555, 54 A.L.R. 623.

(3) Traveling Salesmen and Other Whose Duties Require Them to Travel from Place to Place. As an accepted rule in this as well as most other jurisdictions traveling salesmen are regarded as acting in the course of their employment so long as they are traveling in the interest of their employer's business, including the whole period of time between their starting from and returning to their place of business or home. Foley v. Home Rubber Co., 89 N.J. L. 474, 99 A. 624. Within this rule the traveler, when overtaken by night, may rea sonably seek the "protection of an inn and still be regarded as acting within the course of his employment. California Casualty Indemnity Exchange v. Industrial Accident Commission of California, 5 Cal.2d 185, 53 P.2d 758.

(4) Necessary Travel While on Special Duty After Regular Working Hours. In his ordinary work, the employe knows that he has to be at the proper place at a speci fied time to begin his services and continue then until a set time. Prior to the time set for beginning the service and after the services are ended for the day, the em ploye's time is his own, and he may dispose of it as he pleases. But if, while so off duty from his regular employment, he is called to do an...