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Rainear v. C.J. Rainear Co.

Decided: June 26, 1973.

BARBARA B. RAINEAR, PLAINTIFF-APPELLANT,
v.
C.J. RAINEAR CO., INC., DEFENDANT-RESPONDENT, AND BARBARA B. RAINEAR, EXECUTRIX OF THE ESTATE OF WARREN R. RAINEAR, JR., DECEASED, PLAINTIFF-APPELLANT, V. C.J. RAINEAR CO., INC., DEFENDANT-RESPONDENT



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

Jacobs

The Division of Workmen's Compensation and the Camden County Court found that the decedent's accidental injury and death arose out of and in the course of his employment within the broad statutory contemplation and were therefore compensable. The Appellate Division reversed in an unreported per curiam and we granted certification on the plaintiff's application. 63 N.J. 257 (1973).

The decedent Warren Rainear, Jr. of Turnersville, N.J. was employed as an assistant purchasing agent by the respondent family corporation C.J. Rainear Co., Inc. of

Philadelphia, Pa. His duties included buying, estimating, billing and occasional sales, pickups and deliveries. His wife testified that while his work was mainly office work he "did do selling" to a customer at its premises located along his route to and from home. She also testified that while his customary work hours were from nine to five he "always brought work home." He was a paraplegic and had a specially equipped car which he used for transportation. Although the respondent had furnished his wife with a company car, his car was not owned by the company, though it paid for all operating expenses including gasoline, repairs, etc. There was testimony by his wife indicating that the company made installment and insurance payments on his car though the payments may not have appeared as such on the company records. The Workmen's Compensation Division found that he was not given the use of a company car "because of insurance rating problems" but that the company "provided all travel expenses." This finding, along with the supporting underlying circumstances, brought the decedent within the established rule that, where the employer provides for the employee's transportation to and from the place of employment, workmen's compensation coverage is applicable during such travel. See Hammond v. The Great Atlantic & Pacific Tea Co., 56 N.J. 7, 11-12 (1970); Filson v. Bell Tel. Labs., Inc., 82 N.J. Super. 185, 191 (App. Div. 1964); Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 578-579 (E. & A. 1937); cf. Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 218 (1953) (dissenting opinion); 1 Larson's Workmen's Compensation Law, ยง 16.30, p. 270 (1972).

On Friday, July 11, 1969 the decedent left home for work, telling his wife that he would be staying late to clear up his desk. He planned a week's vacation commencing on the following day. At about 6 P.M. he left his employer's premises and apparently stopped for dinner at Schillig's, a restaurant and bar located on the Black Horse Pike, Mt.

Ephraim, N.J. The record is obscure as to what actually happened thereafter, although it may be assumed that he did some drinking at Schillig's and remained there for a considerable period of time. At about 3:50 A.M. on July 12, 1969, while he was on his way home to Turnersville, he was in an unwitnessed accident. The accident occurred on the Black Horse Pike, a route home running in a generally parallel direction with the North-South Freeway which was his more customary route. His wrecked car was examined later and was found to contain many manuals and invoices connected with company work. He was taken by ambulance to the Kennedy Memorial Hospital and from there he was taken home. He was subsequently readmitted to the hospital and died there on July 29, 1969.

The decedent's wife testified that when she visited him at the hospital on July 14, 1969 he told her that the accident occurred while he was coming home from work and that he was on the Black Horse Pike because he had stopped at Schillig's. She denied that he told her he had gotten drunk at Schillig's, although she assumed he had done some drinking. A State Trooper testified that when he interviewed her in August, 1969 she stated that the decedent had told her he had gotten drunk; however, when she was recalled for further testimony she denied making such statement. The hospital records made no mention of drinking and there is nothing in the record to confirm any suspicion that drinking caused the accident. Neither the Division of Workmen's Compensation nor the County Court found intoxication, and the Appellate Division's opinion noted that it was "not contended that the injuries were due to intoxication, hence were not compensable." See N.J.S.A. 34:15-7.

The Division of Workmen's Compensation found that after the decedent left Schillig's and was on his way home he was traveling within the scope of his employment and that the injuries and death resulting from the ensuing accident arose out of and in the course of his employment within the

contemplation of the statute. The finding by the County Court was to the same effect. Its opinion acknowledged that there was a deviation while the decedent was at Schillig's but pointed out that the accident occurred after the deviation had been terminated and the decedent was again on his way home along a permissible route. The County Court stated that it could not determine that the ten hour delay from the time the decedent left his employer's premises to the time of the accident "was so unreasonable to deny compensation to petitioner when the accident occurred when Warren Rainear, Jr. was on his way home in a direct route of travel, there being no evidence of his whereabouts during that interval, save what he told his wife on his arrival home after the accident, and that he had dinner and alcoholic drinks at a bar-restaurant; no testimony having been produced that either intoxication or some deficiency of the decedent's was the proximate cause of the accident."

In reversing the County Court, the Appellate Division did not differ with the finding that since the employer was paying travel expenses the decedent was entitled to workmen's compensation coverage during travels to and from work; nor did it differ with the finding as to the absence of proof of causative intoxication. However it determined that "the ten hour separation from any employment function, in a place distant from the employer's place of business and under the circumstances herein found, amount to such a departure from the decedent's reasonable sphere of employment as to require a conclusion that the accident did not arise out of his employment." The Appellate Division did not deal at all with the legal effect of the termination of the departure and the decedent's return to his travel home, nor did it discuss pertinent opinions such as Green v. Bell Cleaners, 65 ...


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