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Bergman v. Parnes Brothers Inc.

Decided: July 1, 1971.

SAM BERGMAN, PETITIONER-APPELLANT,
v.
PARNES BROTHERS, INC., RESPONDENT-APPELLEE



For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Mountain. For affirmance -- Justice Hall. The opinion of the Court was delivered by Proctor, J. Francis, J. (concurring). Mountain, J., joins in this concurrence. Francis and Mountain, JJ., concur in result.

Proctor

This is a Workmen's Compensation case. Compensation was denied by the Division of Compensation and judgment was affirmed by the county court. On petitioner's appeal, the Appellate Division by a divided court affirmed the judgment of the county court. Petitioner appeals to this Court as of right. R. 2:2-1(a)(2).

The petitioner, Sam Bergman, was employed as a presser by respondent Parnes Bros., Inc. in its garment factory in Freehold. He was compensated on a piece work basis rather than paid a salary or an hourly wage. Prior to March 12, 1968, the date of the accident for which compensation is claimed, petitioner had worked for Parnes Bros. for ten or twelve weeks. He commuted to work by bus from his farm three miles south of Freehold.

On the day in question, petitioner arrived at respondent's factory about 7:30 A.M. He punched his card and was prepared to start work at 8:00 A.M., the usual time. However, there were no garments yet completed and ready to be pressed. He was told by Izio Parnes, one of respondent's owners and the foreman in charge of production, that there would be no work for about two hours. Such delays were frequent, and as a result respondent had a policy of telling pressers in advance to come in late if there would be no work for them in the early morning. However, for some reason not explained, respondent had not notified petitioner of the unavailability of work on the morning in question.

After staying at the factory for a brief period, petitioner was told by one of respondent's owners that he could go home and return in two hours when there would be work.*fn1 This offer was agreeable to petitioner particularly since there was

apparently no comfortable place on the premises to relax during a work lull. Petitioner testified:

I wasn't comfortable over there. You see * * * you have to sit over there and the steam from the iron comes in your face and the noise from the machines.

Izio Parnes drove petitioner to the bus stop, and petitioner took a bus home from there.

Petitioner remained at home for about one hour and forty minutes. He ate breakfast and when he finished, rather than take a bus -- buses ran infrequently during the midmorning -- he left for work in his car. Driving conditions were poor; rain mixed with snow was falling. Apparently, as a result of these conditions, petitioner lost control of his car and skidded off the road. The accident resulted in the injuries for which compensation is claimed.

Both the Division and the County Court held that the "going and coming" rule applied to the case and barred compensation. The majority opinion of the Appellate Division phrased the issue as "whether an accident occurring off the premises after an employee who was compensated only for piecework that he performed has reported to work, but has been temporarily released from the premises by his employer due to no work being available and directed to return in a short time" is compensable. The majority held that the case was governed by the "going and coming" rule and that since the facts did not bring it within one of the exceptions to that rule, compensation should be denied. The dissenting judge found the "going and coming" rule inapplicable and concluded that petitioner's injuries were compensable since his return home during the work lull was reasonable and since he was "in a place where he might reasonably be."

Under our Workmen's Compensation Act, the test for compensability is whether an injury arises out of and in the course of employment. An ...


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