For reversal -- Justices Hall, Sullivan and Clifford and Judges Conford and Collester. For affirmance -- Justices Jacobs and Pashman. Pashman, J. (concurring in dissent). Jacobs, J. (dissenting).
The Division of Workmen's Compensation allowed, and the Appellate Division by a divided court affirmed an award of compensation to petitioner in respect of injuries sustained while driving home from his employment. The appeal is here as of right because of the dissent. Const. of 1947, Art. VI, Sec. V, par. 1(b).
Petitioner, a carpenter living at West Keansburg, was working for respondent at a construction site in Hackensack, and complained to the employer that his auto trip back and forth to work was becoming costly. The employer thereupon agreed to defray his tolls on the Garden State Parkway, amounting to $10 weekly. Petitioner estimated the total out-of-pocket cost of traveling to work by car at $25 weekly. His wages at the time of the accident were $8 per hour plus overtime ($325.60 per week). The accident occurred shortly after the making of the arrangement mentioned.
Compensation was allowed by the tribunals below on the basis of the exception to the "going and coming" rule comprised by the situation where the employer furnishes actual transportation to the employee for the trip to or from home or reimburses him his expenses therefor.
The doctrinal basis for the exception is that the employer actually or presumptively gains a benefit from the transportation under such circumstances. See Micieli v. Erie Railroad Co., 130 N.J.L. 448, 452 (Sup. Ct. 1943), aff'd 131 N.J.L. 427 (E. & A. 1944). In all the cases thus far decided in New Jersey in which compensation was allowed, except one, the employer had provided the transportation for,
or defrayed the whole cost of, that portion of the trip during which the accident had occurred,*fn1 e.g., Fisher v. Tidewater Building Co., 96 N.J.L. 103 (Sup. Ct. 1921), aff'd o.b. 97 N.J.L. 324 (E. & A. 1922); Lehigh Navigation Coal Co. v. McGonnell, 120 N.J.L. 428 (Sup. Ct. 1938), aff'd o.b. 121 N.J.L. 583 (E. & A. 1939); Green v. Bell Cleaners, 65 N.J. Super. 311 (App. Div. 1961), aff'd 35 N.J. 596 (1961); Rainear v. Rainear, 63 N.J. 276, 278 (1973). Previous formulations of the exception by this Court have been in terms clearly contemplating that it encompasses the employer either providing the transportation or paying for it, free of any implication that payment of only part would suffice. See Ricciardi v. Damar Products Co., 45 N.J. 54, 61 (1965); Rainear v. Rainear, supra (63 N.J. at 278); Jasaitis v. Paterson, 31 N.J. 81, 84 (1959).
The exceptional case mentioned above is Pearce v. N.J. Highway Authority, 122 N.J. Super. 342 (App. Div. 1973), where, as here, recovery was allowed although the employer, the agency owning and operating the Garden State Parkway, reimbursed the employee only for toll expense on the Parkway, not for the total travel expense from home to job.*fn2
We conclude, after study of all of the cases, that the rationale of the exception to the going and coming rule under discussion can be sustained only in those situations where, if the employee travels by car, the employer reimburses him for all or substantially all of the total expense involved. Anything less would border so closely upon the noncompensable area where the arrangement is really part of the work-remuneration rather than provision for transportation
as to render the rule impracticable of judicial administration and of but ephemeral foundation in any significant nexus between the journey and the employment. Cf. Watkins v. Cowenhoven, 90 N.J. Super. 17 (App. Div. 1965), certif. den. 46 N.J. 538 (1966); 1 Larson, Workmen's Compensation (1972) § 16.30. The arrangement here does not qualify, the employer reimbursing the employee to the extent of only 40% of the travel expense involved.