Ricciardi v. Damar Products Co.

• Decision Date: 14 June 1965
• Docket Number: No. A--93,A--93
• Citation: Ricciardi v. Damar Products Co., 211 A.2d 347, 45 N.J. 54 (N.J. 1965)
• Parties: Joseph RICCIARDI, Petitioner-Appellant, v. DAMAR PRODUCTS COMPANY, Respondent-Respondent.
• Court: New Jersey Supreme Court

Page 54

45 N.J. 54

211 A.2d 347

Joseph RICCIARDI, Petitioner-Appellant, v.DAMAR PRODUCTS COMPANY, Respondent-Respondent.

No. A--93.

Supreme Court of New Jersey.

Argued March 15, 1965.

Decided June 14, 1965.

Norman Peterkin, Orange, for appellant(Friedman & D'Alessandro, Newark, attorneys).

Herman D. Michels, Newark, for respondent(Roger L. Toner, on the brief, Toner, Crowley, Woelper & Vanderbilt, Newark, attorneys).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Petitioner seeks an award under the workmen's compensation law by reason of the death of his wife.He prevailed in the Division of Workmen's Compensation, but the County Court reversed upon a finding that petitioner was not a dependent of the decedent.The Appellate Division affirmed the County Court, finding both (1) that the accident did not occur in the course of employment and (2) that there was no dependency, one judge however disagreeing with the first of these findings.82 N.J.Super. 222, 197 A.2d 390(1964).We granted certification.43 N.J. 354, 204 A.2d 589(1964).

I

The deceased was killed on July 2, 1960 in an automobile accident while returning home from a picnic sponsored by her employer.With respect to liability for compensation, the issues are twofold: (1) whether the picnic was an event within the coverage of the statute and (2) whether the statute protected the deceased in going to and from the picnic.

The facts are not in dispute.The picnic was suggested by an employee.The employer thought well of the idea, its vice-president testifying that 'We had a very successful Christmas party in 1959, which made the people and the management of the Company so pleased that we wanted to continue on an entertainment basis in some form or another, twice a year.'The company paid about 98 percent of the expenses of the picnic, the union contributing the balance.The vice-president just referred to said 'It was good for the Company,' explaining that the outing was intended to improve relations between employees and employer and among the employees.The company and its two affiliates are engaged in the mail order business in which there is a fluctuating need for help and hence a high rate of labor turnover.

The picnic was held on a non-working day.No one was required to attend, but management wanted a good turnout and the employee committee formed with management's approval urged all employees to attend.The president of the company spoke at the picnic and awarded some six or seven savings bonds for perfect attendance during the first half of the year.The employer thought enough of the event to schedule another picnic for the following year.

We think it clear the picnic was sponsored by the employer in part at least to further its own interests.That the employees were free to attend or to stay away is not a critical fact.Nor is it decisive that wages were not paid those who did appear, seeVan Ness v. Borough of Haledon, 136 N.J.L. 623, 626, 56 A.2d 888(E. & A.1948);Filson v. Bell Telephone Laboratories, Inc., 82 N.J.Super. 185, 197 A.2d 196(App.Div.1964);Ryan v. St. Vincent de Paul Roman Catholic Church, 41 N.J.Super. 206, 210, 124 A.2d 315(App.Div.1956), or that the picnic was held at a place other than the work premises.Rather the question is whether the event is sufficiently work-connected to bring the employees within the coverage of the compensation law, a law which provides protection for employees, not because of fault or failure of the employer, but rather upon the belief that the enterprise itself should absorb losses which inevitably and predictably are an incident of its operations.

Where, as here, the employer sponsors a recreational event for the purpose of maintaining or improving relations with and among employees, the employees gratify the employer's wish by attending and thus serve the employer's business aim.It therefore is correct to say the Legislature intended the enterprise to bear the risk of injuries incidental to that company event.Hence the picnic itself was a covered affair.In point is Kelly v. Hackensack Water Co., 10 N.J.Super. 528, 77 A.2d 467(App.Div.1950),Id., 23 N.J.Super. 88, 92 A.2d 506(App.Div.1952).The controlling doctrine is expounded in Complitano v. Steel & Alloy Tank Co., 34 N.J. 300, 168 A.2d 809(1961), reversing the judgment of the Appellate Division upon the dissenting opinion therein of Judge Conford, 63 N.J.Super. 444, at p. 456, 164 A.2d 792.SeeCuna v. Board of Fire Commissioners, Avenel, 42 N.J. 292, 305--306, 200 A.2d 313(1964);cf.DuCharme v. Columbia Engineering Co., 31 N.J.Super. 167, 106 A.2d 23(App.Div.1954).

Had the deceased suffered her fatal injuries at the picnic, the accident would be compensable under the cases just cited.Here the fatal accident occurred on the trip home and hence the further question is whether the compensation statute covers that travel.The facts are that it was expected the employees would arrange among themselves for transportation, and two of the executives made their cars available for the transportation of those who could not.We gather the deceased was taken to the picnic by a coemployee and was being driven directly home from the picnic by another employee when she was killed.

Our cases accept as a general rule the proposition that an employee is not covered while going to or from his regular place of work.O'Brien v. First Camden National Bank & Trust Co., 37 N.J. 158, 162, 179 A.2d 740(1962);Morris v. Hermann Forwarding Co., 18 N.J. 195, 113 A.2d 513(1955);Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 96 A.2d 401(1953).That rule is not free from dispute since travel to and from the place of work quite obviously is essential to the work itself.Indeed, not infrequently employers assume the expense of such travel.

The uneasy footings of the general rule have led to a number of exceptions to it.See dissenting opinion in Moosebrugger, supra(12 N.J., at p. 216, 96 A.2d, at p. 404).One is that the compensation act will cover the employee during transportation furnished or paid for by the employer.Jasaitis v. City of Paterson, 31 N.J. 81, 84, 155 A.2d 260(1959);Filson v. Bell Telephone Laboratories, Inc., supra(82 N.J.Super. 185, 197 A.2d 196).Another, and the one more directly involved in the case on hand, is that where an employee pursues a special errand or mission, as distinguished from reporting to the regular place of his day's work, he is within the protection of the statute during the travel to and from the scene of his special errand.Hence if the point of departure or return is the employee's home, the travel is covered.SeeBobertz v. Board of Education, 135 N.J.L. 555, 52 A.2d 827(E. & A.1947);Ryan v. St. Vincent de Paul Roman Catholic Church, supra(41 N.J.Super. 206, 124 A.2d 315);O'Reilly v. Roberto Homes, Inc., 31 N.J.Super. 387, 107 A.2d 9(App.Div.1954);Goldmann v. Johanna Farms, Inc., 26 N.J.Super. 550, 98 A.2d 142(Cty.Ct.1953).In one case, where the employee had to engage a baby sitter so that he could attend a dinner in furtherance of his employment, the employee remained within the protection of the statute in taking the baby sitter to her home.Harrison v. Stanton, 26 N.J.Super. 194, 97 A.2d 687(App.Div.1953), affirmed o.b. 14 N.J. 172, 101 A.2d 554(1954).

Here the employer could not achieve the business aim of the outing unless the employees reached the picnic scene.Travel to and from it were of course essential.The event was a special one, and we see no reason why, under the special-mission exception we are discussing, the travel should not be covered along with the picnic itself.This is the same result reached in other jurisdictions which hold that a company-sponsored recreational outing is protected by the compensation law.¹SeeStakonis v. United Advertising Co., 110 Conn. 384, 148 A. 334(Sup.Ct.Err.1930);Dodge v. Wm. J. Keller, Inc., 304 N.Y. 792, 109 N.E.2d 85(Ct.App.1952);Miller v. Keystone Appliances, Inc., 133 Pa.Super. 354, 2 A.2d 508(Super.Ct.1938).

II

We turn to the issue of dependency.It is not disputed that a man may be a dependent of his wife;N.J.S.A. 34:15--13, subd. g expressly so provides.He may be a total dependent, Wartell v. McGarrity, 20 N.J.Misc. 497, 29 A.2d 408(Dept. Labor1942), or a partial dependent.Partial dependency is here claimed.

The general test of dependency is well put in 2 Larson, Workmen's Compensation Law § 63.11, p. 102(1961):

'A showing of actual dependency does not require proof that, without decedent's contributions, claimant would have lacked the necessaries of life.The test is whether his contributions were relied on by claimant to maintain claimant's accustomed mode of living.'

Upon this standard, the claimant is entitled to prevail.

Petitioner and the decedent were married in August 1958.He was a patrolman, earning $4,500 per year, and she was unemployed.The couple resided with petitioner's mother for about four or five months, after which, the wife having obtained work at $60 per week, they moved to an apartment of their own, furnished out of their joint savings.Later the wife became ill and underwent surgery.Without her earnings, the couple could not maintain their mode of living and hence they returned to the home of petitioner's mother where they were able to stay for but $20 per week.When the wife obtained employment with the respondent, the couple again planned to acquire a place of their own.They pooled their earnings, purchased the necessary furnishings, and were to occupy their new apartment the day she was killed.

At the time of her death the decedent was working a few days a week for which her earnings averaged $27.81 gross and $23.60 net.Of this she withheld $5 for her personal use.Petitioner was then earning $4,700 per year gross.Upon these figures, the employer contends the decedent drew benefits from the family fund in excess of her dollar...