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Hornyak v. Great Atlantic & Pacific Tea Co.

Decided: May 21, 1973.

MICHAEL HORNYAK, PLAINTIFF-APPELLANT,
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub, Justices Jacobs, Proctor, Mountain and Sullivan, and Judge Conford. For affirmance -- Justice Hall. The opinion of the Court was delivered by Jacobs, J.

Jacobs

The Appellate Division, in an unreported opinion, affirmed the denial of a workmen's compensation award to the plaintiff; we certified on his application. 62 N.J. 188 (1972).

The plaintiff was employed as a shipper in the respondent's distribution warehouse at Cedar Lane, Florence, New Jersey. His working hours were from 9:30 P.M. until 6 or 7 A.M., with two coffee breaks of 15 minutes each and a half hour lunch period from 1:30 to 2 A.M. He had to check in when entering the premises at 9:30 P.M. and check out when leaving the premises at 6 or 7 A.M.; but he did not have to check out when he left the premises for lunch or check in when he returned. Although there was a lunchroom at the premises, no food was available there. Normally about 20 or 25 employees would bring their own lunch and eat in the lunchroom where drinks could be obtained from vending machines. Most of the 85 or so employees would customarily leave the premises and have lunch in nearby Bordentown or Burlington eating places. The supervisory employees knew of this practice and there had never been any suggestion that it was not permissible.

On December 14, 1968 the plaintiff went to the Burlington diner during his 1:30-2 A.M. lunch hour. The diner is located about six miles south of the warehouse on Route 130 and was, at that time of night, the nearest place to eat. The plaintiff had his lunch and was in the course of returning to the warehouse. When he was about two and a half blocks away, at about 1:55 A.M., his car was involved in an accident. He was seriously injured, was taken to the Rancocas Valley Hospital where he remained for a week, and was later treated by several physicians. In due course he filed a claim petition for compensation in the Department of Labor and Industry, Division of Workmen's Compensation. The Division dismissed the petition under the judge-made "going and coming" rule which has often precluded employees from obtaining compensation for injuries suffered

by them on their way to and from work. See Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 214 (1953); 1 Larson, The Law of Workmen's Compensation § 15 (1972); 8 Schneider, Workmen's Compensation Text § 1710 (1951). The Division took the position that "when the employee is given time off to leave the premises to have his meals, logic supports the holding that an injury during that interval does not arise out of and in the course of employment." This position was adhered to in the County Court which affirmed the dismissal of the complaint. The Appellate Division affirmed the County Court's judgment in a per curiam reading as follows:

The most recent determinations by our Supreme Court hold to the proposition that, although subject to various exceptions, as well as some criticisms, the "coming and going" rule is still in effect in this State. Bergman v. Parnes Brothers, Inc., 58 N.J. 559 (1971); Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7 (1970). In view of the fact that the circumstances attending the injury of this petitioner do not fall within any of the recognized exceptions to the rule [including Jones v. Continental Electric Co., 75 N.J. Super. 76 (App. Div. 1962), certif. den. 38 N.J. 312 (1962)], he is not entitled to compensation.

Our Workmen's Compensation Act (N.J.S.A. 34:15-1 et seq.) is humane social legislation designed to place the cost of work-connected injury on the employer who may readily provide for it as an operating expense. The Act sets forth that compensation shall be paid for death or injury by accident arising out of and in the course of the employment. N.J.S.A. 34:15-7. Shortly after its original passage the former Supreme Court noted that an accident arises out of the employment if it results from a risk "reasonably incidental" thereto and that it arises in the course of the employment "if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time." Bryant, Adm'x. v. Fissell, 84 N.J.L. 72, 77, 78 (Sup. Ct. 1913). Later cases have expressed the same

thoughts in similar terminology. See, e.g., Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43, 47 (Sup. Ct. 1935), aff'd, 116 N.J.L. 92 (E. & A. 1936); Beh v. Breeze Corporation, 2 N.J. 279, 282 (1949); Secor v. Penn Service Garage, 19 N.J. 315, 320 (1955); Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586 (1959). And very recently this Court, stressing the liberal legislative intent to have the employer's enterprise "absorb the injuries reasonably related to it", expansively construed the statutory language to apply to an injury not actually inflicted until after termination of the employment but the cause of which admittedly originated in the employment. See Thornton v. Chamberlain Manufacturing Corp., 62 N.J. 235, 242 (1973).

At no point has the Legislature altered the sweeping generality of the statutory terms and it has consistently left their definition and application to the courts. They, in turn, have conscientiously sought to evolve liberally just lines between those accidental injuries which may fairly be said to have some work connection and those which may fairly be said to be unrelated to the employment. Right from the start it was understood that it was not necessary that the employee actually be working at his machine or elsewhere within his employer's premises to satisfy the statutory formula. See Blovelt v. Sawyer, [1904] 1 K.B. 271; Rowland v. Wright, [1909] 1 K.B. 963; Hanna v. Erie Railroad Co., 8 N.J. Misc. 829 (Sup. Ct. 1930); cf. Waskevitz v. Clifton Paper Board Co., 7 N.J. Super. 1 (App. Div. 1950); Crotty v. Driver Harris Co., 49 N.J. Super. 60 (App. Div.), certif. denied, 27 N.J. 75 (1958); Jones v. Continental Electric Co., Inc., 75 N.J. Super. 76 (App. Div.), certif. denied, 38 N.J. 312 (1962). In Jones a watchman was killed while crossing the street in front of his employer's plant on the way to a nearby diner where he planned having his midnight lunch; in his opinion holding that the death arose out of and in the course of the employment, Judge Gaulkin cited the settled doctrine that the continuity of the employment is not interrupted by acts of personal comfort such as stopping

work to have a smoke or to get some fresh air and that this "is not limited to acts performed on the employer's premises." 75 N.J. Super. at 82; cf. Zabriskie v. ...


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