Wenzel v. Zantop Air Transport, Inc.

• Decision Date: 15 March 1967
• Docket Number: No. W,W
• Citation: 94 N.J.Super. 326,228 A.2d 104
• Parties: Lawrence R. WENZEL, Petitioner-Appellant, v. ZANTOP AIR TRANSPORT, INC., Respondent-Respondent. C. 910.
• Court: New Jersey County Court

Page 326

94 N.J.Super. 326

228 A.2d 104

Lawrence R. WENZEL, Petitioner-Appellant, v. ZANTOP AIR TRANSPORT, INC., Respondent-Respondent.

No. W.C. 910.

Union County Court Law Division, New Jersey.

March 15, 1967.

John W. Devlin, Plainfield, for appellant (O'Brien, Devlin & Shaw, Plainfield, attorneys).

Andrew Lawrie, East Orange, for respondent (Lawrie & Jennings, East Orange, attorneys).

WEIDENBURNER, J.S.C. (temporarily assigned).

The primary issue in this workmen's compensation appeal is whether New Jersey has jurisdiction of the cause. The judge of compensation dismissed petitioner's claim on the ground that New Jersey lacks jurisdiction because neither the contract of employment was made nor the work-connected accident occurred in this State.

The petitioner is a commercial airplane pilot, who was born and raised in New Jersey. He testified that he had owned and maintained his home in this State for a period of 15 years prior to his accident, but the record is barren of evidence of who lived there or when petitioner last lived in or visited it prior to the accident; that he maintained a banking account in New Jersey in which he deposited checks received from respondent and that he had voted in this State and never voted elsewhere, although he had not voted here during the five years preceding the accident because his employment required him to be outside the State on election day.

Petitioner's testimony disclosed that during the years 1958 to the date of his accident in 1963 he was employed by various airlines and flying services, including respondent, and resided in proximity to his various based throughout said period at Greenwood, Mississippi; Piggott, Arkansas; Warner-Robbins, Georgia; Macon, Georgia; Detroit, Michigan; Ontario, California, and Hill Field, Utah.

On or about June 23, 1960, while petitioner was employed by an air carrier with a base in Georgia and living in an apartment near that airport, he telephoned respondent's office in Detroit, Michigan, seeking employment. As a result of this telephone conversation petitioner went to respondent's office in Detroit and was hired as a pilot. A written employment contract was subsequently executed by the parties on August 23, 1960 in which petitioner gave his address as 233 North Jackson Avenue, North Plainfield, New Jersey.

When petitioner began his employment with respondent, he was assigned to a base at Warner Robbins, Georgia, and flew a route from there to Charleston, South Carolina, Dover, Delaware, McGuire Air Force Base, New Jersey, and Middletown, Pennsylvania, and return. He testified that 20% To 25% Of his flight time was 'involved in trips to New Jersey,' although in several months such flights occupied him as much as 35% To 100% Of his total work time. In May 1962 respondent assigned petitioner to Detroit, Michigan, and he began to fly to and from Newark, New Jersey, where respondent maintained an office and a staff at the Newark Airport. Until the end of 1962 he said that the percentages of his time spent on flights in and out of New Jersey varied monthly from 12% To 30% Of his total time. In January 1963 petitioner's base was changed from Detroit to Ontario, California, but soon thereafter, at the suggestion of respondent's chief pilot in California, petitioner went to Utah 'to be able to fly more.' Between the date of his assignment to the California base and the date of the work-connected accident, petitioner did not spend any time on flights in or out of New Jersey. While on his second trip out of Hill Field, Utah, petitioner's plane crashed on February 16, 1963 at Payallup, Washington.

In terms of flying time the evidence disclosed that petitioner logged a total flight time of 495 hours during the year 1960, of which 6 1/2 hours were spent in flying in any over his State. In 1961 petitioner's total flying time was 917 1/2 hours, of which 18 hours were logged on flights in and over New Jersey. In 1962 petitioner flew 957 1/2 hours, of which 25 3/4 hours were in the air over this State. To the date of petitioner's accident in 1963 in Washington he had logged a total of 46 hours of flying time, none of which was spent in flights over this State.

Petitioner testified that he stayed overnight in New Jersey on 11 of the trips which took him into and out of this State during 1962. He said that he stayed at hotels on all of those occasions, although we judicially notice that McGuire Air Force Base and Newark Airport, which are the only two locations to which petitioner flew in this State, are within one hour's driving time from the community in which petitioner claims residence.

Petitioner was hospitalized in Washington until October 8, 1963, during which period the Industrial Commission of Utah had assumed to petitioner of the matter of compensation to petitioner at the request of respondent. While so hospitalized petitioner sought and was granted authorization by the Utah Commission to go to his home in New Jersey upon his discharge from the hospital. Respondent's insurance carrier then gave petitioner permission to receive medical attention in this State and paid the cost of his transportation to New Jersey.

Petitioner consulted several physicians in New Jersey, including those suggested by respondent's representatives, one of whom was a Dr. Kessler. The latter recommended that petitioner enroll in Kessler Institute for rehabilitation treatment, but respondent's representative informed petitioner in July 1964 that '(a)s a result of our medical information, we cannot give authorization for you to enter the Kessler Institute.' The New Jersey claim petition for compensation was filed one month later.

Petitioner testified that he has also made application for compensation benefits in Utah, Michigan, California and Washington. The Washington authorities informed petitioner that its statute did not cover air traffic accidents and that, in any event, his claim was barred by its one-year statute of limitations. Michigan advised petitioner that he was not entitled to benefits from that state if he were received benefits from Utah, and California's representatives have stated 'that they do not understand the connection between the claim' in that jurisdiction since the accident occurred in Washington. Petitioner has not cashed compensation payment checks received from Utah and the proceedings there 'are being held in abeyance, pending the outcome of the matter in New Jersey.'

Our highest court has repeatedly approved the legal philosophy that a broad, liberal interpretation should be given to coverage under our Workmen's Compensation Act 'in order to insure the accomplishment of the statutory remedial goals.' Stellmah v. Hunterdon Co-op. G.L.E. Serv., Inc., 47 N.J. 163, 169, 219 A.2d 616, 619 (1966); Close v. Kordulak Bros., 44 N.J. 589, 604, 210 A.2d 753 (1965); Cuna v. Board of Fire Com'rs, Avenel, 42 N.J. 292, 298, 200 A.2d 313 (1964).

The fact that petitioner has filed several applications for compensation benefits in other jurisdictions and received and accepted medical and hospital benefits under the proceeding instituted in Utah by the respondent does not preclude him from electing to pursue his remedy for compensation benefits in New Jersey. Cramer v. State Concrete Corp., 39 N.J. 507, 511, 189 A.2d 213 (1963); Wilson v. Faull, 27 N.J. 105, 116--117, 141 A.2d 768 (1958); Rivera v. Green Giant Co., 93 N.J.Super. 6, 13, 224 A.2d 505 (App.Div.1966), certification granted 4, N.J. 443, 226 A.2d 432 (1967). It has been said that '(a)s a matter of fairness the employee should receive 'the highest available amount of compensation' to which he is entitled, so long, of course, as credit is given for payments received.' Cramer v. State Concrete Corp., supra, 39 N.J., at p. 511, 189 A.2d at p. 216. This principle, which allows the employee a choice of forum to seek the highest available amount of compensation, 'is consonant with the high-minded remedial purposes underlying compensation enactments.' Boyle v. G. & K. Trucking Co., 37 N.J. 104 ,112, 179 A.2d 514 (1962); Rivera v. Green Giant Co., supra, 93 N.J.Super., at p. 13, 224 A.2d at p. 505.

In the past our courts have endeavored to find either contract of employment or injury in this State as a basis for assuming jurisdiction. As recently as Rivera v. Green Giant Co., supra, it was said:

'* * * If the Situs of both the injury and the employment undertaking is outside of New Jersey, our compensation laws are generally not applicable. Franzen v. E. I. Dupont de Nemours & Co., 128 N.J.L. 549, 27 A.2d 615 (Sup.Ct.1942); Crawford v. Trans World Airlines, 27 N.J.Super. 567, 570, 99 A.2d 673 (Cty.Ct.1953). Cf. Bowers v. American Bridge Co., 43 N.J.Super. 48, 57, 127 A.2d 580 (App.Div.1956), affirmed o.b. 24 N.J. 390, 132 A.2d 28 (1957).' (93 N.J.Super., at p. 11, 224 A.2d at p. 508).

Petitioner recognizes the limits of jurisdiction established in our case law to date but vigorously contends that jurisdiction should be assumed in the instant case because the petitioner 'was domiciled in New Jersey' and had spent a sufficient portion of his employment time in New Jersey prior to the accident to establish an employer-employee relationship within this State. His conclusion is that these facts furnish New Jersey with sufficient interest in the employment relationship to justify the assumption of jurisdiction under the expanding jurisdictional concepts reflected in the decisions dealing with state jurisdiction over foreign corporations and other nonresidents by substituted service. Respondent contends that the proofs do not establish that petitioner's 'residence' was in this State and that, in any event, 'residence' alone is not a sufficient basis for New Jersey to assume jurisdiction.

This court agrees that the decisions of our appellate courts as to the bases for jurisdiction in workmen's compensation cases should not be interpretated as a refusal to recognize that there are...