Stellas v. W. Union Tel. Co., Inc.

• Decision Date: 04 June 1938
• Citation: 1 A.2d 335
• Parties: STELLAS v. WESTERN UNION TELEGRAPH Co., Inc.
• Court: New Jersey Supreme Court

1 A.2d 335

STELLAS

v. WESTERN UNION TELEGRAPH Co., Inc.

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

June 4, 1938.

Proceeding under the Workmen's Compensation Act by Jack Stellas, claimant, by George Stellas, as his next friend, opposed by the Western Union Telegraph Company, employer.

Compensation awarded to claimant.

Moore & Butler, of Atlantic City, for petitioner.

Bolte & Miller, of Atlantic City, for respondent.

MEDINETS, Deputy Commissioner of Compensation.

This is a proceeding brought by Jack Stellas, as petitioner, and against The Western Union Telegraph Company, Incorporated, as respondent, seeking compensation under an act of the legislature of the State of New Jersey, entitled "An Act prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder," approved April 4th, 1911, P.L.1911, p. 134, together with the several acts amendatory thereof and supplemental thereto. R.S.1937, 34:15-1 et seq.

A petition and answer were duly filed and the matter regularly came on for hearing before me, Harry S. Medinets, a deputy commissioner of compensation, of the Workmen's Compensation Bureau, on April 14th, 1938.

From the testimony produced before me, I find that Jack Stellas, the petitioner, was employed as a bicycle messenger by the Western Union Telegraph Company, the respondent. He was required to report for work in uniform by seven-thirty in the morning for the purpose of delivering telegrams. On July 13th, 1937, he arrived at respondent's place of business just before seven-thirty A. M. He changed into uniform and reported for duty. After doing so, he noticed that the tire of his bicycle had a slow leak and was in need of repair. As a condition of his employment, young Stellas was required to provide his own bicycle and keep the same in a good state of repair. The office of the Western Union kept some bicycle repair supplies, but in this instance, however, it was found necessary that Stellas go to a bicycle shop to make the needed repairs. Stellas asked permission of his immediate superior to leave and make the necessary repairs to put the bicycle in good working condition. Upon receiving his superior's approval and permission to absent himself, since there were a number of boys ahead of him who would be available to deliver any messages which came in, he proceeded to the bicycle repair shop. While en route to the store, he was struck and injured by an automobile. His claim for compensation is predicated upon the fact that this injury arose cut of and in the course of his employment.

In construing the Workmen's Compensation Act, it should be remembered that the statute is remedial and should be liberally and broadly construed. O'Mara v. Kirch, 106 N.J.L. 151, .147 A. 511; Schmid v. Stanton Forging Co., 104 N.J.L. 471, 142 A. 4; Bodnarik v. Empire Floor, etc, Co., 151 A. 908, 8 N.J.Misc. 718; Steers, Inc., v. Turner Const. Co., 104 N.J.L. 189, 139 A. 42. Therefore, what accidents should be held compensable "as arising out of the course of employment" have been given a broad interpretation.

In Hall v. Doremus, 114 N.J.L. 47, at page 50, 175 A. 369, at page 371, which case is also cited by respondent, the court said: "And it would seem that, on principle, even though the accident resulted from the doing in an emergency of something that is not strictly within the scope of the employment, it may nevertheless be one that arises out of and in the course of the employment."

And in Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458, another case relied on by the respondent, the court declared (at page 70, 86 A. at page 461): "And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment."

It may be noted here that respondent could and should have foreseen, because of its long experience in employing boys with bicycles, that a bicycle tire may, on occasion, become flat and the case above cited is certainly controlling on this point. In the two cases last cited, compensation was awarded.

One of the earliest cases arising under the act was Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023, affirmed Terlecki v. Straus, 86 N.J.L. 708, 92 A. 1087, where a girl's hair was injured by a machine while she was combing it preparatory to going home after she had finished work. Mr. Justice Swayze held that the accident was compensable as arising out of and in the course of her employment. "The preparation reasonably necessary for beginning work after the employer's premises are reached and for leaving when the work is over is a part of the employment. * * * The employment was not, indeed the proximate cause of the accident, but it was a cause in the sense that, but for the employment, the accident would not have happened. The employment was one of the necessary antecedents to the accident." [Page 1024.] The opinion in this case certainly applies in its entirety to the case at bar.

Bryant v. Fissell, supra, also enunciated the principle that, "An accident arises 'in the course of employment' 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 that time." Foley v. Home Rubber Co., 89 N. J.L. 474, 99 A. 624.

Under these principles, it is not necessary that the employe be actually engaged in prosecuting his designated work in order to obtain compensation. He need only be doing some act reasonably necessary and incidental to his employment.

A school janitor, returning home from evening church services, decided to look after the school fires, because of a sudden fall in the temperature. He suffered injury while going home for the school keys. The accident was held compensable. Kromley v. Board of Education, 180 A. 546, 13 N.J.Misc. 627.

Where part of an employe's duties was to take milk pails home and wash them, it was held that he was entitled to compensation, after being struck by an automobile while carrying the pails back to the farm. Barkman v. Meyer, 171 A. 536, 12 N.J. Misc. 287.

It is indeed possible that a workman may not even be, doing acts incidental to furthering his employment, but. actually be doing some action purely for his own personal convenience which may be so closely connected with his employment as to entitle him. to compensation. A barge captain who went ashore to get some food, visited a friend for three or four hours and was struck by a train on returning to the barge. It was held he was entitled to compensation. Ramsey v. Leahey, 102 N.J.L. 513, 134 A. 91, affirmed 103 N.J.L. 501, 135 A. 919.

An employe who was given leave to attend to his own personal affairs and was injured while driving back to work was entitled to compensation. Rachels v. Pepoon, 135 A. 684, 5 N.J.Misc. 122, affirmed 104 N.J.L. 183, 139 A. 923. It is the contention of the respondent that Jack Stellas was on a personal and private mission. Under the above cited case, it would certainly appear that he is entitled to compensation. It is the contention of the petitioner, however, that Stellas was not on his own mission, but was performing a duty necessary to the continuation of his employment. A truck driver, who left his truck to go into a public house to get a pint of beer and who was struck, was held to have met with an accident arising out of and in the course ot employment. Martin v. Lovibond, 2 K.B. 227; Salomone v. Ansetta, 194 A. 798, 16 N.J.Misc. 96. Some other cases in which the accidents have also been held to have arisen out of and in the course of employment are: Zabriskie v. Erie Railroad Co., 85 N.J.L. 157, 88 A. 824, affirmed 86 N.J.L. 266, 92 A. 385, L.R.A.1916A, 315; Hart v. Wilhelms, 31 N.J.L.J. 13; Hanna v. Erie Railroad Co., 152 A. 179, 8 N.J.Misc. 829; Jasnig v. Winter, 115 N.J.L. 320, 179 A. 844.

However, our case is not nearly as extreme as those cited above. The boy was not doing an errand for his own personal convenience, but an act absolutely necessary and essential if he was to...