On appeal from the Supreme Court, whose opinion is reported in 123 N.J.L. 529.
For the respondent-appellant, Nathan Rabinowitz and Nathan Robins, (Isadore Rabinowitz).
For the prosecutors-appellees, Harvey G. Stevenson.
The opinion of the court was delivered by
WOLFSKEIL, J. The appeal in this case is from a decision of the Supreme Court, which reversed an award made by the Workmen's Compensation Bureau for injuries sustained by appellant. The point in controversy is whether the accident which occasioned the injuries took place in the course of appellant's employment. This needs to be determined from the factual situation, concerning which there is virtually no dispute, the issue being the legal deduction to be drawn from the facts.
The proofs show that appellant was in the employ of Alex Goldstein, who conducted his business under the name of Lambert Textile Printing Co. Appellant performed such jobs that might be assigned to him about the plant, being regarded as a "handy man," and also on occasion drove Goldstein to places in the latter's automobile being paid for the driving separately by Goldstein, instead of through company disbursement. The appellant was occupied about the plant for specified hours during the day, drawing his pay for that work through funds of the company.
On July 15th, 1938, Goldstein told appellant that he wished him to "punch out" at twelve o'clock, to go home and get dressed and then to drive him to Saratoga. The "punching out" indicated on the time clock the moment of discontinuance of work at the plant. Appellant did as he was directed and returned to the plant at three o'clock prepared for the trip. He says that Goldstein promised to pay him $7 for the driving. They left in the employer's personal automobile. Appellant had a relative living in the vicinity of Saratoga and when that point was reached he left the car and Goldstein continued on to Saratoga. The return journey was made on
the following Monday. On the way home there was a collision at a highway intersection and Goldstein was killed. The appellant was severely injured, remaining unconscious for thirty hours.
Upon presentation of a claim for compensation because of his injuries, the Workmen's Compensation Bureau, through the deputy commissioner, adjudged that the accident arose out of and in the course of appellant's employment with the Lambert Textile Printing Co. This finding was reversed by the Supreme Court, which reached the opposite conclusion and held that the petitioner at the time of the accident was on no business of the company, so that the injuries sustained by him did not arise out of and in the course of his employment, as the trip had nothing to do with the textile business conducted by Goldstein.
We are of the opinion that such a view overlooks the dispositive factor of the singleness of identity between Goldstein individually and Lambert Textile Printing Co. The evidence showed that Lambert Textile Printing Co. was a trade name under which Goldstein conducted his business. It was not a corporation nor partnership, nor any other form of separate entity, serving purely as a medium through which Goldstein chose to act in that regard. Were it possible to have disassociated Goldstein from connection with Lambert Textile Printing Co., there would have been nothing left to the latter except a name.
Lambert Textile Printing Co. was a conduit through which the acts of Goldstein flowed, a title which he chose to assume. Anything Lambert Textile Printing Co. did was merely what Goldstein in that guise did, and was in substance his individual act. The risk is incidental to the employment when it is connected with what the employe is called upon to do in order to fulfill his contract of hire. Bird v. Lake Hopatcong Country Club, 119 N.J.L. 415.
It follows, therefore, that being an employe of Lambert Textile Printing Co., or employe of Goldstein, presented no distinction, but an ...