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Nicolasi v. Sparagna

Decided: January 17, 1947.

GRACE NICOLASI, PLAINTIFF-RESPONDENT,
v.
JEAN SPARAGNA AND ANGELO SPARAGNA, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the appellants, Stanger & Howell (Robert G. Howell, of counsel).

For the respondent, Tuso & Tuso (Carl Kisselman, of counsel).

Perskie

The opinion of the court was delivered by

PERSKIE, J. The basic question for decision on the facts of this case and the law applicable thereto is whether respondent correctly invoked the common law remedy, or whether she should have invoked, as urged for appellants, the exclusive remedy furnished her under our Workmen's Compensation Act. R.S. 34:15-7, et seq.

Respondent, Grace Nicolasi, plaintiff below, sued Jean

Sparagna, Angelo Sparagna (appellants) and Louis Uleau (who did not appeal), defendants below, in a common law action for alleged actionable negligence. In her suit, respondent substantially alleged that, on March 8th, 1944, she was, at the instance and request of Jean Sparagna, a passenger in her car operated by her father with her permission and consent; that as a result of the alleged negligence of Angelo Sparagna, or Louis Uleau, or both, the car in which respondent was riding came into collision with the car owned and operated by Uleau at or near the intersection of Main Road and Wheat Road, in Landis Township, Cumberland County, New Jersey; and that as a result of that collision respondent sustained injuries for which she sought her damages.

Defendants denied liability. That denial, so far as is here pertinent, set up, inter alia, the defense (sixth separate defense), that plaintiff's alleged right of action was "not cognizable in this court" (i.e., Supreme Court), but is only cognizable "in other tribunals," i.e., the Workmen's Compensation Bureau. This separate defense was also the gravamen of defendants' motions for a nonsuit and for a directed verdict. The trial judge denied those motions and submitted the case to the jury which returned a verdict of $3,500 in favor of respondent, and, as molded, against the three named defendants.

The applicable law dispositive of appellants' contentions is clear. The general rule is that injuries sustained by a workman while going to and returning from his place of work are not considered as arising out of and in the course of his employment. But injuries sustained by the workman while he is provided with transportation when going to or returning from his work are considered as arising out of his employment when such transportation is the result of an express or implied agreement between the employer and his workman, or when it has ripened into a custom to the extent that it is incidental to and part of the contract of employment, or when it is with the knowledge and acquiescence of the employer, or when it is the result of a continued practice in the course of the employer's business, and which practice is beneficial to both the employer and employee. Micieli v. Erie Railroad

Co., 130 N.J.L. 448, and cases collated on p. 452; 33 A.2d 586; affirmed, 131 N.J.L. 427; 37 A.2d 123; Wolf v. Oestereicher, 133 N.J.L. 261; 44 A.2d 29.

Do the circumstances in the case at bar support appellants' claim that they invoke the exceptions ...


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