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Cocchio v. Condenser Service & Engineering Co.

Decided: April 26, 1951.


Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Eastwood, J.A.D.


This is an appeal from an award of compensation to petitioner by the Workmen's Compensation Division of the Department of Labor and Industry for injuries sustained in an automobile accident which occurred in Pekin, Illinois. Our review of the record brings us to a conclusion contrary to that reached by the deputy director. Accordingly, under the authority of Rules 1:2-20 and 4:2-6, we are making new findings of fact.

In September, 1947, the petitioner went from New Jersey, where he was employed by the respondent, to Pekin, Illinois, as a member of a construction crew to work on a project there. The terms of employment were made known to him before he left for the job in question, viz.: that he would be employed on a basis of 12 hours per day for which he would receive a stipulated hourly rate of compensation and that he would receive

$5 per day additional for lodging and meals. Other employees came from Wisconsin to work on the same project. The men were permitted to decide which shift they preferred to work and petitioner selected the day shift, 8.00 A.M. to 8.00 P.M.

The town of Pekin is a small municipality with limited accommodations. Cocchio stated that upon arrival, Hans Guildi, a member of the Wisconsin crew and foreman of the night shift, selected the "Taswell House" as a lodging place and accordingly petitioner and a number of the workmen engaged rooms at that hotel. The men were transported by their employer to and from the site of their employment, several miles distant, as well as to a place where they could eat lunch during their working hours. However, they were not permitted to use the vehicle after their return to the hotel in the evening. The claimant testified that they were on a 24-hour call and after completion of their daily shift, if they left the hotel, they were required to leave word there where they could be reached if needed.

On Sunday, September 14, 1947, petitioner returned to the hotel after completing his regular shift, bathed and dressed. At approximately 9:30 P.M., he travelled about Pekin in search of other members of the crew. Not finding anyone, he looked unsuccessfully for a place in Pekin where he might obtain a "hot" dinner. He learned of a place called the "Chicken Barn" located about two miles out of town. While en route in a taxicab, which he had engaged to transport him, a collision occurred between the taxi and another automobile. As a result thereof petitioner was severely injured.

Petitioner filed his petition for compensation under our Workmen's Compensation Act, claiming the injuries thus sustained to be compensable. Respondent denied petitioner's contention and asserted that the accident occurred while the employee was "on his own" and not in the pursuit of any function related to his employment. The Division found for the employee, from which finding respondent appeals directly to this court by reason of the fact that the accident causing

petitioner's injuries occurred outside of this State. Stetser v. American Stores Co. , 124 N.J.L. 228 (E. & A. 1940).

The employer contends that petitioner failed to sustain the burden of establishing by a preponderance of the proofs, an injury by accident arising out of and in the course of his employment. It is argued that petitioner's employment ceased for the day at 8:00 P.M. and that he was entirely on his own thereafter; that no control was exercised over the employees either as to lodging or as to their dinner arrangements; and that the petitioner was not undertaking duties of his employment at the time of the accident in question, nor anything incidental thereto, but was in pursuit of personal pleasures.

The employer also disputes the division of responsibility for payment of the counsel fee awarded to petitioner's counsel.

The employee contends that he was under 24-hour supervision; that he was directed by the foreman, Guildi, where to lodge; that in response to an inquiry directed to Guildi where he might get a dinner on Sunday, he was informed that all places in the town of Pekin closed on Sunday and that it would be necessary for him to go out of town to secure a meal. Guildi denied petitioner's contentions and stated that he exercised no control over the employees after their regular 12 hours of duty. He was corroborated by the ...

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