Reimers v. Proctor Pub. Co.

• Decision Date: 25 February 1914
• Citation: 89 A. 931,85 N.J.L. 441
• Parties: REIMERS v. PROCTOR PUB. CO.
• Court: New Jersey Supreme Court

89 A. 931

85 N.J.L. 441

REIMERS

v. PROCTOR PUB. CO.

Supreme Court of New Jersey.

Feb. 25, 1914.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Hudson County.

Petition under Workmen's Compensation Act by Gustav A. Reimers against the Proctor Publishing Company. Judgment for petitioner, and defendant brings certiorari. Reversed, and record remitted for new trial.

Argued November term, 1913, before SWAYZE and BERGEN, JJ.

Lazarus & Brenner, of Bayonne, for plaintiff. Robert J. Bain, of Jersey City (Collins & Corbin, of Jersey City, on the brief), for defendant.

SWAYZE, J. This is a proceeding under the Workmen's Compensation Act, taken by the father of the decedent, an unmarried man. No executor or administrator qualified. We see no objection to the father initiating the proceeding. P. L. 1911, p. 142, pi. 19.

The principal question in the case for us is whether there was evidence justifying an inference that the death was by accident arising out of and in the course of the employment. There was evidence justifying an inference that the decedent was employed by the defendant as a general utility man, and that among his duties was the distribution of newspapers. He had at one time used an automobile of the defendant, and had met with an accident which damaged the machine. The defendant then borrowed an automobile, and its president and one of his sons, who was in its employ, both forbade decedent to use the car. Nevertheless he used it frequently to distribute the newspapers. There is no evidence that any one except the president had authority to authorize its use; but the use was so frequent and so public that, if there was nothing more in the case, the trial judge would have been justified in finding that the decedent was authorized to use it notwithstanding the prohibition. The difficulty is that both the president and his son testified that the decedent had been told not to use the car on the day the present accident happened. The son in particular told him, just before he went out, to let the car alone. There is no conflicting evidence on this point, and, if these witnesses are to be believed, the decedent took the car on the occasion when the accident happened in disobedience of express orders just received. If there was authority to use it before, there was a revocation. A similar question has recently been passed on by the House of Lords under the English act, and recovery denied. Barnes v. Nunnery Colliery Co., [1912] A. C. 44.

If this difficulty could be surmounted, there would be further difficulty in holding that there was evidence justifying a finding that the death was due to the...