Ricciardi v. Damar Products Co.

• Citation: 82 N.J.Super. 222,197 A.2d 390
• Decision Date: 04 February 1964
• Docket Number: No. A--508,A--508
• Parties: Joseph RICCIARDI, Petitioner-Appellant and Cross-Respondent, v. DAMAR PRODUCTS COMPANY, Respondent-Respondent and Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 222

82 N.J.Super. 222

197 A.2d 390

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

No. A--508.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 30, 1963.

Decided Feb. 4, 1964.

Norman Peterkin, Orange, for petitioner-appellant and cross-respondent (Friedman & D'Alessandro, Newark, attorneys).

Herman D. Michels, Newark, for respondent and cross-appellant (Toner, Crowley, Woelper & Vanderbilt, Newark, attorneys, Marshall Crowley, and Herman D. Michels, Newark, of counsel, Andrea C. Balliette, East Orange, on the brief)

Before Judges GAULKIN, LEWIS and LABRECQUE.

The opinion of the court was delivered by

GAULKIN, S.J.A.D.

Petitioner's wife, Janet Ann Ricciardi, was killed in an automobile accident while returning from a company prcnic. Petitioner's petition for workmen's compensation was resisted by the employer on the grounds that the accident was not compensable and, in any event, petitioner was not a dependent. The Division awarded compensation. The County Court reversed, holding that the accident was compensable but that petitioner was not a dependent Petitioner appeals, and the employer cross-appeals from that portion of the judgment of the County Court which held the accident to be compensable.

We hold that the accident was not compensable and that, even if it were, petitioner did not established dependency.

I.

It is agreed that at the present time New Jersey adheres to the rule that ordinarily an employee may not recover compensation for injuries sustained while going to or coming from his regular place of work. Only the Legislature or the Supreme Court can change that rule. Until it is changed, we are bound by it. So long as New Jersey adheres to that rule, we cannot see how compensation can be awarded to an employee who is injured on his way to or from a picnic, unless the picnic is one arranged by the employer in such a fashion that attendance at it by the employee is in the nature of a 'special errand.' Stout v. Sterling Aluminum Products Co., 213 S.W.2d 244 (Mo.Ct.App.1948); F. Becker Asphaltum Roofing Co. v. Industrial Commission, 333 Ill. 340, 164 N.E. 668 (Sup.Ct.1929); Miller v. Eystone Appliances, 133 Pa.Super. 354, 2 A.2d 508 (Super.Ct.1938). Cf. Lawrence v. American Mutual Liability Ins. Co., 165 A.2d 735 (R.I.Sup.Ct.1960); Stakonis v. United Advertising Co., 110 Conn. 384, 148 A. 334 (Sup.Ct.Err.1930).

In the case at bar we find that the employer's participation in the arrangements for the picnic were not sufficient to make attendance thereat a 'special errand.' There was no direction or request by the employer that the employees attend (as there was in Stakonis and Miller, supra), no financial or other compulsion upon the employees to attend, and no suggestion from management that it would be displeased by nonattendance. Indeed, a large proportion of the workers and even of the managerial staff did not attend. The picnic was on Saturday, a non-working day, the employees received no pay for the day, and no record of attendance was made.

The mere fact that the employer might have benefited from the picnic because of improved morale is not sufficient to justify compensation for injuries sustained while going to or coming from the picnic. The employer benefits from the employee's coming to the regular place of business to work, yet an injury suffered while coming to work is not compensable. If a worker may not recover compensation for injuries sustained while going to his regular place of work, which he is obliged to attend, it is difficult to see how compensation can be awarded to one who is injured on his way to or from a picnic or other entertainment or facility provided by the employer, off the factory grounds from which the employee is free to stay away without financial loss or employer displeasure.

The mere fact that the employer pays for the picnic does not make the going-or-coming injury compensable. Industry today provides many off-the-premises entertainments and facilities for its workers--libraries, reading rooms, hospitals clinics, vacation resorts, recreation halls, theatres, bowling alleys, etc. When the workers are free to attend to refrain from attending these facilities and entertainments as they see fit, we conceive that injuries sustained while going to or coming from such places are not compensable.

II.

The petitioner contends that he was partially dependent on his wife. He testified that he earned $4,700 per year at the time of her death. She earned $23 or $24 per week, out of which she contributed approximately $18 per week towards household expenses. They had no children. They lived with petitioner's mother, to whom they paid $20 a week for rent. Decedent maintained a separate bank account which contained a balance of $152 shortly before her death, from which, a day or two before the accident, she withdrew $150 'to buy something for the house.'

These facts do not establish that petitioner was a dependent, but rather that petitioner supported his wife with the aid of her contribution. It certainly required more than $18 per week to feed, house, clothe, maintain and entertain the decedent, and she obviously derived more than $18 per week benefit out of the common fund.

Under N.J.S.A. 34:15--13 the burden is upon petitioner to establish that he was wholly or partially dependent upon his wife at the time of her death. A dependent under the act has been defined as 'one who is sustained by another or relies for support upon the aid of another,' Wilken v. Shein's Express Co., 131 N.J.L. 450, 37 A.2d 47 (Sup.Ct.1944); Catelli v. Bayonne Associates, Inc., 3 N.J.Super. 122, 65 A.2d 617 (App.Div.1949); Rodesky v. Paterson, 19 N.J.Misc. 35, 17 A.2d 49 (Dept. Labor 1940); Gladstone v. Trenton Lehigh Coal Co., 3 N.J.Misc. 27 (Dept. Labor 1924); cf. Morrow v. Meteor Air Transport, Inc., 14 N.J.Super. 176, 179, 81 A.2d 506 (App.Div. 1951), even though '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 upon by the claimant to maintain the claimant's accustomed mode of living.' 2 Larson, Workmen's Compensation Law, § 63.11 (1961). See also Carianni v. Schwenker, 38 N.J.Super. 350, 361--362, 118 A.2d 847 (App.Div.1955); Havey v. Erie Railroad Co., 88 N.J.L. 684, 96 A. 995 (E. & A.1915); Denis v. Scandanavian Belting Co., 5 N.J.Misc. 445 (Dept.Labor 1927); 9 Schneider, Workmen's Compensation Law (3d ed. 1950), § 1913. Cf. Wartell v. McGarrity, 20 N.J.Misc. 497, 29 A.2d 408 (Dept.Labor 1942), Fey v. Essex County, 23 N.J.Misc. 80, 41 A.2d 215 (Dept.Labor 1945).

Under these standards, petitioner was not a dependent.

The judgment of the County Court dismissing the petition is affirmed.

LEWIS, J.A.D. (concurring in result).

I agree that petitioner did not establish dependency, and for that reason he is not entitled to workmen's compensation benefits. The majority opinion, however, holds that defendant's fatal accident was not compensable. My analysis of the evidence and applicable law leads me to the opposite conclusion. Before discussing the legal issues, a degree of factual particularization is essential.

Respondent Damar, a closely-held family corporation, was one of three companies under the same management operating a mail-order business. Following a successful Christmas party given by Damar for the employees of its three branches, the company agreed to sponsor, in the form of a picnic, a similar social assembly during the summer. The picnic idea originated with Dolores Smaldone, an employee, and Morris Katz, president of the employees' union. Their suggestion was favorably received by the company, as indicated by Donald Hass, its vice-president and general manager, who testified, '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.' Hass proposed that the picnic affair be held at the Cider Mill Inn on Vaux Hall Road, Union, N.J., and he advised Smaldone and Katz to 'get a committee together and let's work out the arrangements.' Hass said that he would discuss the matter with the company's treasurer 'as far as the payment of the picnic is concerned.'

Smaldone became chairman of the committee, which was composed of regular employees, none of whom held a managerial or supervisory position with the company. The committee members, during employment hours, prearranged the details for the outing that was held on Saturday afternoon, July 2, 1960. They solicited the attendance of the employees, posted notices on the company's bulletin boards and distributed mineographed invitations. Although acceptance was voluntary, and the employer did not issue orders or directives to the employees, they were personally contacted and requested to attend. The manner of invitation was described by an employee, Mamie Losey:

'The Judge: Did she (Dolores Smaldone) come personally to you and ask you to attend the picnic?

The Witness: Yes, because they had to have a list of names.

The Judge: What did she say in connection with Mr. Margolese (president of the company)?

The Witness: She said she would like to have as many people there as she could so that when Mr. Margolese came that he would feel that it was a success.'

The witness also explained the transportation arrangements--'if you wanted a ride, you could ride with the employees. They were going to be in front of the plant at 12:30 that day.'

On this subject Mr. Hass, in his testimony on behalf of management, when questioned as to whether transportation was offered to the employees said:

'A. There were two cars. Mine and Mr. Francis Marguiles, also a brother; both of us were at the plant on Newark Avenue, Elizabeth, at noon-time, I...