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Begley v. International Terminal Operating Co.

Decided: May 6, 1971.


Wood, William Fillmore, J.c.c.


This is a workmen's compensation death action brought by decedent's widow, wherein there is very little, if any, dispute concerning the essential facts. On the other hand, the parties are in complete disagreement on the basic legal question, namely, whether the accident which caused the death arose out of and in the course of decedent's employment. More specifically, the question is whether, under the so-called going-and-coming rule, and under the exceptions thereto that are either established by precedent or justified by reason and fairness, the accident is compensable. With respect to exceptions to the general rule, this case presents a question that has never been decided in this State.

The judge of compensation decided the case in favor of petitioner and respondent appeals.

Decedent was employed by respondent as a pier superintendent at the Elizabethport Marine Terminal in the Port Newark area of Elizabeth. His duties were to supervise the loading and unloading of ships. He regularly worked five days a week, Mondays through Fridays. Normally he began work at about 8 A.M. and quit at about 5 or 6 P.M. However, at times, whenever there was in the terminal a vessel that required loading or unloading, he had to work as late as 9 P.M. His salary was $260 for the five-day week, regardless of the number of hours worked. On occasions he was called upon to work Saturdays or Sundays. Work on those days was considered overtime, and for this overtime work he was paid $35 a day, irrespective of whether he worked a full day or only a fraction thereof.

Because decedent's duties necessitated his travelling frequently from place to place within the terminal area during the course of a day's work, and because of the substantial distances between the various places where he worked, it was established practice for him to use his own car for such travel. The only exception to that practice was when one of respondent's vehicles was available for his use, but respondent's vehicles were never available when there was a ship in the pier to be loaded or unloaded. There was such a ship in the pier, and consequently decedent actually used his car for employment purposes, on the date of the accident.

The evidence does not indicate that respondent actually required or ordered decedent to use his car. However, since, as above indicated, no other mode of transportation was available to him when there were ships in the terminal requiring his services as supervisor, the use of his own car at such times must have been, under the circumstances, a practical necessity. In any event, respondent compensated decedent for his car use at the rate of 12 cents a mile, thereby indicating that it recognized and accepted such use as being substantially beneficial to its enterprise. Moreover, decedent's immediate supervisor, appearing as a witness for respondent, testified that, although decedent could perform his duties without a car, to do so "would cause a very slow process"; and respondent's general operating manager, likewise appearing as respondent's witness, conceded that decedent's use of his car was "productive." The compensation did not include the distance travelled to and from decedent's home (which was in Staten Island, New York) to the terminal.

Decedent's death was caused by a collision of his car with an item of road construction machinery known as a backhoe or crane. The accident occurred on a public street on Saturday, January 27, 1968, at about 6:15 P.M., shortly after decedent had left his place of employment and while he was apparently on his way home. It was dark and the backhoe was parked on or near the street without adequate lighting or sufficient barricade.

Under these circumstances, the accident is not compensable unless it comes within an exception to the general rule that Workmen's Compensation Act benefits are not payable for accidental injury or death occurring while the employee is in the process of travelling between his home and his place of employment. Morris v. Hermann Forwarding Co. , 18 N.J. 195 (1955).

One long-recognized exception to the above rule allows compensation in cases where the employer pays for or otherwise provides transportation between the home and the employment site. However, under this exception, as illustrated by Morris , where the employer provides transportation only during the time and in the area of actual employment, and/or only for a portion of the distance between the employment area and the employee's home, workmen's compensation liability ceases at the point where the employer-provided transportation terminates.

In Morris decedent lived in New Brunswick in Middlesex County, New Jersey, and worked as a travelling salesman. His sales areas were New York City and the New Jersey Counties of Bergen, Hudson and Essex. His employer paid all of his travelling expenses within those areas and also paid his train fare between those areas and New Brunswick. The accident occurred while decedent, after having completed his day's work and returned to New Brunswick by train, was on his way from the train station to his home. Although decedent used a bus to go from the station to a point within the vicinity of his home, his bus fare was not paid by his employer. The court held that the accident was not compensable since decedent left the scope of his employment when he departed from the station.

In so far as the employer's payment for transportation is concerned, the facts in the present case are strikingly similar to Morris. In both cases decedent had, at the time of the accident, gone beyond the point to which or the ...

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