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Lewis v. Ward

Decided: November 13, 1956.

MARY LEWIS, PETITIONER-APPELLANT,
v.
MICHAEL WARD, RESPONDENT-RESPONDENT



On appeal from Division of Workmen's Compensation.

Waugh, J.c.c.

Waugh

This is an appeal from an order entered by the Deputy Director, in the Workmen's Compensation Division, granting a motion to dismiss the claim petition. The dismissal was entered at the close of petitioner's factual presentation and before any medical proofs were adduced.

Petitioner was employed by the respondent, in the latter's home, as a domestic, on the basis of one day a week, at a rate of $8 per day, plus 20 cents for carfare and one meal to be supplied by respondent. The hours of employment were from 7:30 A.M. to 3:30 P.M.

According to petitioner's testimony, the actual cost of carfare to and from respondent's home was in excess of 60 cents. When she informed the respondent of the actual cost, the respondent said nothing and did not increase the carfare payments.

It appears that on October 20, 1955, for the second time in approximately three years of employment, the respondent drove the petitioner to the latter's home at the close of the day. It was on this occasion, while petitioner was getting out of the respondent's automobile, that the petitioner closed the automobile door on her own right thumb, causing a painful injury.

The general rule regarding accidents occurring while the employee is traveling to and from his employer's place of business, is that such accidents and resulting injuries do not arise out of or in the course of employment and, hence, are not compensable. Moosebrugger v. Prospect Presbyterian Church of Maplewood , 12 N.J. 212 (1953); Bobertz v. Board of Education of Hillside Township , 134 N.J.L. 444 (Sup. Ct. 1946).

Petitioner contends that the dismissal below was erroneous on two grounds, namely, (1) that where an employee is paid transportation costs in full or in part, in addition to salary, or (2) where the employer directs the employee to ride in either his or another's vehicle, these factors give rise to exceptions to the "going and coming" general rule of no liability.

The second of the two grounds urged by the petitioner can be disposed of briefly. The record does not, in the opinion of this court, support the argument that the petitioner was ordered by the respondent to ride in the latter's automobile. The only fair inference is that the petitioner was offered a ride and that respondent was impatient to get started. The record does not support the petitioner's contention of an order or command by the employer which is essential to bring the case within the cases cited by the petitioner on page 7 of his brief.

The other ground urged by the petitioner is that payment of transportation costs, in full or in part, places the petitioner's case within one of the exceptions to the "going and coming" rule.

The exceptions in New Jersey, to the "going and coming" rule referred to in the majority opinion in the Moosebrugger case, cited supra , and set forth in the minority opinion, 12 N.J. , at page 218, are as follows:

"'(1) Where Transportation is Furnished by the Employer to and from the Place of Employment.' Rubeo v. Arthur McMullen Co., supra [117 N.J.L. 574]. '(2) Where the Use of an Automobile or Other Form of Vehicle is Required in the Performance of the Contract of Service.' Demerest v. Guild , 114 N.J.L. 472, 476 (E. & A. 1935). '(3) Traveling Salesmen and Others Whose Duties Require Them to Travel from Place to Place.' Geltman v. Reliable Linen & Supply Co., supra [128 N.J.L. 443]. '(4) ...


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