Civil action. Claim petition No. D-72611. Determination of facts and rule for judgment.
Wood, Wm. Fillmore, J.c.c.
[77 NJSuper Page 321] This case comes before the court on appeal from the determination of the Division of Workmen's Compensation that petitioner's husband, Daniel
H. Filson, was employed by respondent at the time of his fatal accident, that the accident arose out of and in the course of that employment, and that the New Jersey Compensation Act is applicable to the case. The same issues are raised on this appeal.
It is well established that when a contract of employment is "made" in this State our compensation act applies even if the accident occurs outside the State. Gotkin v. Weinberg , 2 N.J. 305 (1949). Therefore the first inquiry by this court will be whether a contract of employment was consummated and, if so, whether it was consummated in New Jersey?
The evidence consists primarily of correspondence between decedent and respondent corporation. On February 7, 1960 decedent wrote respondent from Monterey, California, where he was employed as an assistant professor of physics at the United States Naval Postgraduate School, seeking a temporary position as a physicist for the summer months of that year. In the letter he indicated that he hoped ultimately (after termination of his Naval School employment, which he expected to last at least another academic year) to return to the New York area to live and that he intended to use the summer to acquaint himself with employment opportunities in that area. Respondent answered by letter of April 5, 1960, which (1) offered decedent temporary employment for a period of at least ten weeks, contingent upon his satisfactorily meeting respondent's physical requirements; (2) set forth specific terms as to salary and length of work week, and (3) agreed to reimburse decedent, upon his reporting for work, for his transportation expenses from Monterey to the place of employment in New Jersey and to pay decedent, upon termination of the employment, for the cost of transportation back to Monterey. Decedent was authorized to have a physical examination, at respondent's expense, by his own physician; and he was advised that upon receipt of the doctor's report, respondent would let him know the outcome. He was also advised that if the report was satisfactory, he would have
respondent's assurance of meeting its requirements when reporting for work, provided there were no unfavorable developments in the meantime. By letter of April 11, 1960 decedent accepted the above offer of employment and advised respondent that he would be available by the first of June. The next and final items of correspondence between respondent and decedent were two letters from respondent, dated April 18 and May 18, 1960, respectively. In the former respondent (1) acknowledged decedent's letter of April 11 and expressed its satisfaction with June 1 as the date for decedent to report for work; (2) instructed decedent to report directly to Mr. N. W. Smusyn, respondent's technical employment coordinator, so that the latter could "go through the formalities" of placing decedent on the payroll, and (3) forwarded to decedent "Qualification Record" and "Certificate of Non-Affiliation" forms and an instruction sheet indicating that the enclosed forms should be completed and returned promptly, and also indicating that certain other documents, such as birth and citizenship records, veteran's discharge papers and Social Security card, should be presented when reporting for work. The letter of May 18 advised decedent that the report of his physical examination had been received and found satisfactory. The concluding sentence of that letter read: "Consequently, the way is now clear for you to join us."
On May 21, 1960, while decedent was traveling with his family by car through Iowa en route to New Jersey to begin his work with respondent, the car skidded off the road. Decedent sustained fatal injuries in the upset.
Respondent contends that no employment contract had been consummated or, in the alternative, that the contract, if consummated at all, was completed in California. The first contention is based primarily upon the theory that the employee status was not to begin until certain further requirements, which allegedly had to be met at the time decedent reported for work, were satisfied. These so-called requirements were specified in the instruction sheet enclosed with
respondent's letter of April 18, 1960. However, the only thing that decedent was instructed by that sheet to do at the time of reporting was to produce the above mentioned birth and citizenship records, veteran's discharge papers, Social Security card, and similar documents. The producing of such documents was merely one of the "formalities" necessary for completing respondent's files and placing decedent on the payroll. Like the compensation judge, I find as a fact that a contract of employment was consummated by the above correspondence and that, in other words, the contract was not contingent upon the producing of those documents.
I now turn to respondent's alternative contention that the contract, if consummated at all, was made in California. The circumstance upon which respondent based this contention is that on April 21, 1960 decedent in California executed the above mentioned "Qualification Record," which ...