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Rubeo v. Arthur McMullen Co.

Decided: January 22, 1937.

NANCY RUBEO, PETITIONER-APPELLANT,
v.
ARTHUR MCMULLEN COMPANY, DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the appellant, Matthew M. Slepin (Sallie H. Donarovich, of counsel).

For the respondent, Gray & Bird (A. Lionel Reid, of counsel).

Perskie

The opinion of the court was delivered by

PERSKIE, J. Did the relationship of employer and employe exist at the time the latter journeyed from work to his home and during which journey he sustained injuries resulting in his death, or, in more terse language, did the accident resulting in the death of the employe arise out of and in the course of his employment?

This is a workmen's compensation case. It is undisputable that the deceased employe was a good concrete mixer and had worked for the respondent, at varying intervals, for many years. In May of 1934 respondent had a contract at St. George, Staten Island, which required the services of efficient concrete mixers. Thus because of its knowledge of decedent's ability it concluded to employ him and sent its superintendent to do so. Deceased lived in Newark at the time and was employed at the Newark air port and he told the superintendent that he was not anxious to make a change and would not consider making one unless he could get permission from his then employer to do so. The superintendent obtained permission to employ deceased. The base salary of $40 a week which the deceased was earning at that time in Newark was agreed upon. A discussion then followed as to the transportation of the employe to and from work. There is testimony from which it appears that the deceased insisted upon being provided with transportation; that the superintendent during the negotiations for the employment so advised respondent over the telephone and as a result thereof agreed to transport deceased to and from work. The testimony of the widow was positive that superintendent Holt, with consent of the respondent, agreed to a base salary of $40 a week and that Holt, for respondent, was to transport deceased to and from work. As to the transportation, there is testimony to the contrary. At all events it is conceded that Holt resided in Rahway, New Jersey; that he daily drove a truck belonging to respondent, with its consent, to and from work. That for about thirteen or fourteen days prior to and on June 7th, 1934, the superintendent would pick up deceased and other employes at an agreed point and would take them to

work at Staten Island and also did transport them back from work as near their homes as he could, usually at Elizabeth, New Jersey. It is conceded that on June 7th, 1934, while deceased journeyed as aforesaid from work and while passing through Jersey City fell from the truck and from the injuries received by the fall died the following day. It has been the contention of the respondent throughout this case that the transportation of the deceased was the result of a mere courtesy extended him and some of the other employes and nothing more.

In the bureau the deputy commissioner, on a refinding of the facts, determination and order, in pursuance of an order of the Hudson County Court of Common Pleas to that effect, determined that the "transportation which the deceased received was not only a custom and practice which was beneficial to both employer and employe, but actually was included in and was part of the contract of hiring." Thus compensation was allowed to the widow and the two children. Appeal was taken to the Hudson County Court of Common Pleas. In that court it was determined that the proofs failed to justify the inference that the transportation facilitated the prosecution of the work or was beneficial to either the employer or the employe and that the proofs also failed to establish that the transportation of the employe was based on either an expressed or implied contract, or that the employe was entitled thereto by virtue of express order of respondent or its agent. Thus compensation was disallowed and the petition was dismissed.

The Supreme Court allowed a writ of certiorari. That court in sustaining the Common Pleas said: "The Common Pleas judge, examining the evidence, held that there was no express contract to provide transportation, although there was some evidence for petitioner supporting that claim. It seems to be fairly clear that not only Rubeo but other men were allowed to ride the whole or part of the way home on the truck as a matter of convenience, but he refused to find that this had ripened into a custom to such an extent as to become part of the contract of employment. This was the

determinative question of fact, and it was decided in favor of petitioner by the commissioner, and adversely on appeal by the Pleas. We have carefully examined the evidence, and conclude that it sufficiently sustains the finding of the Common Pleas judge." (Italics supplied.)

First: The function of the Supreme Court, on certiorari, in these cases, "either by reason of the general language of the Certiorari act (section 11) or the language of the Compensation act, [N.J.St.Annual 1932, ยง **236 -- 60], or both, is to review questions of fact as well as law." Gianfrancisco v. Public Service and Transport, 11 N.J. Mis. R. 219, 221; 165 A. 419. Ct. Patton v. American Oil Co., 13 N.J. Mis. R. 825; 181 A. 651; affirmed, 116 N.J.L. 382; 185 A. 35. And while it may affirm a judgment of the Pleas where the facts and the legitimate inferences to be drawn therefrom tend to support the judgment of that court (Geizel v. Regina Co., 96 N.J.L. 31, 33; 114 A. 328; affirmed, 97 N.J.L. 331; 116 A. 924; Kauffeld v. G. F. Pfund & Son, 97 N.J.L. 335; 116 A. 487) yet, in the Supreme Court that principle of law has been held not to operate as a bar to the ...


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