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Green v. Bell Cleaners

Decided: January 24, 1961.


Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.


The petitioners, James E. White and Edward L. Green, filed claim petitions for workmen's compensation against their employer, Bell Cleaners. They sustained injuries, admittedly, as the result of an accident on October 26, 1957, while they were riding, en route from Wrightstown to Browns Mills, New Jersey, in a truck owned by their employer and driven by White. At the time of the accident, White was driving another employee, Robert Lomax, to his home in Browns Mills.

The Deputy Director dismissed both petitions. He found that White was never authorized by the respondent employer, either expressly or by implication, to drive the truck to Browns Mills, even though White was then driving Lomax from work to his home there. He concluded that

this trip, four or five miles in a southerly direction, was such an unauthorized and material deviation from White's authorized, normal, and northwesterly course of travel between Wrightstown and his home in Yardley, Pa., as to constitute an abandonment by both petitioners of the employment relationship during the period of the deviation.

The Burlington County Court having affirmed the dismissal for the same reasons, the petitioners appealed to this court. As required in such cases, we have made a study and independent appraisal of the entire record for the purpose of making a determination according to our own considered judgment. Russo v. United States Trucking Corp. , 26 N.J. 430, 435 (1958); Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 448 (1958); Pellegrino v. Monahan McCann Stone Co. , 61 N.J. Super. 561, 562 (App. Div. 1959), affirmed 33 N.J. 73 (1960).

The material facts are not in dispute. The respondent conducted a dry cleaning business within the confines of the Fort Dix military reservation. The petitioners were employed there by the respondent as a cleaner and presser respectively; and, in addition to his other duties, White drove one of respondent's four trucks. White, who lives in Yardley, Pa., more than twenty miles northwest of Fort Dix, had express authority from respondent to drive the panel truck, as a means of transportation to and from work. No special route of travel had been prescribed. Petitioner Green, who lived in Trenton, about eighteen miles northwest of Fort Dix and along White's usual course of travel, was advised by respondent's manager that he could ride daily with White to and from work. He did so, except on some occasions when White worked late and then the manager himself drove Edward Green home. Another employee, a Roger Green, not related to petitioner, who also lived in Trenton also rode daily to and from work in respondent's truck driven by White. Respondent's attorney admitted in the record that Rosen (respondent) was aware of the fact that White was picking up the two Green boys.

The uncontradicted evidence establishes that it was customary for all of respondent's truck drivers to pick up any employee who was going in the same direction. Thus, besides the two Greens, White had also driven several other employees, going his way, on occasions prior to the accident. Even the respondent's manager and his foreman frequently gave rides to employees. As White testified, without contradiction:

"Every one did it and Mr. Rosen [respondent] knew about it and he never kicked."

On the day of the accident, a Saturday and normally a short working day, petitioner Green, who finished work about 2 P.M., and Roger Green were picked up by White at Fort Dix at about 3:20 P.M. for their mutual customary homeward journey. About one mile from that pick-up, and as they approached Wrightstown, near the bus station there, they met another employee, Robert Lomax, who was walking along the road. White stopped the truck and picked up Lomax, who had missed his 3:22 P.M. bus. As White testified:

"I asked him where he was going and he said he was going home, so I said 'Well, I might as well take you because I don't have anything in particular to do.'"

Lomax lived in Browns Mills about four or five miles south of the Wrightstown bus station and in the opposite direction from White's ordinary homeward course. In fact, White never before had driven any fellow employee home by going south from Fort Dix; and, at the same time, there was no express prohibition against doing so. Lomax was the only one of respondent's employees who lived in Browns Mills or in that area. He had always been driven to work by his uncle. While he had never before been driven home by White, another of ...

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