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Rubeo v. Arthur McMullen Co.

Decided: August 18, 1937.

NANCY RUBEO, PROSECUTOR,
v.
ARTHUR MCMULLEN COMPANY, RESPONDENT



On certiorari.

For the prosecutor, Matthew M. Sepin (Sallie H. Donarovich, of counsel).

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

Before Justices Bodine, Heher and Perskie.

Heher

The opinion of the court was delivered by

HEHER, J. The deceased employe, Dominick Rubeo, was killed by accident while being transported in one of his

the situs of his employment at St. George, Staten Island, in the State of New York, to the vicinity of his home in the the State of New York, to the vicinity of his home in the city of Newark, in this state; and the question for decision is whether the accident so occurring arose out of and in the course of his employment within the intendment of the Workmen's Compensation act of 1911 (Pamph. L., pp. 134, 763), as amended.

An award in favor of the dependents made by the compensation bureau was reversed by the Hudson Common Pleas. The Supreme Court sustained this judgment. Our court of last resort remanded the cause for further findings of fact and a determination in accordance with the apposite principles, as outlined in the opinion. 117 N.J.L. 574.

We resolve the basic inquiry in the affirmative.

In May, 1934, the respondent employer sought the services of the deceased employe, a skilled concrete worker who had been in its employ on prior occasions, for the performance of a contract for the building of a dock on Staten Island. Through its superintendent, Holt, it persuaded Rubeo to leave his employment at the Newark Airport, and to enlist in its service at the same base weekly wage. The evidence is in conflict as to whether the deceased was to be provided with transportation from his home to the situs of the construction work; but it is conceded that Holt, who lived in the city of Rahway, in this state, transported the deceased, almost daily, between his home, or the immediate vicinity thereof, and Staten Island. While they were engaged in "pouring concrete" -- from May 7th, 1934, to the ensuing May 24th -- daily transportation was provided, and thereafter and until June 7th, 1934 (the day of the fatal accident), it seems to have been the general practice. Holt said it was "done regularly." The vehicle was one of the employer's trucks assigned to the use of Holt, and garaged near his home at the employer's expense. The fatality occurred on the homeward trip, after the completion of the day's work.

When the accident happened, the essential statutory relation, in popular understanding and intent, had not been terminated. The line of delimitation is not so finely drawn. The provision ...


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