On appeal from the Superior Court, Appellate Division, whose opinion is reported at 129 N.J. Super. 77.
For affirmance -- Chief Justice Hughes and Justices Hall, Sullivan and Clifford. For reversal -- Justices Jacobs, Mountain and Pashman. Pashman, J. (dissenting). I am authorized to state that Justices Jacobs and Mountain join in this dissent.
The judgment is affirmed substantially for the reasons expressed by the Appellate Division, 129 N.J. Super. 77.
PASHMAN, J. (dissenting). I respectfully dissent from the majority's holding and would vote to abandon the going and coming rule. The workmen's compensation statute requires that for an injury to be compensable, it must arise out of and in the course of employment. N.J.S.A. 34:15-7 (L. 1911, c. 95, § 7). The Legislature provided little guidance as to what was encompassed within this phrase. Our courts soon held that an accident was compensable when it was "reasonably incidental to the employment" and
The exceptions which have developed since the rule was first formulated by our courts are too numerous to mention here. A most thorough and comprehensive discussion can be found in 1 Larson, Workmen's Compensation, § 15.13 et seq. See also Horovitz, 14 NACCA L.J. 36, 37-46 (1954); Horovitz, "Workmen's Compensation: Half Century of Judicial Developments," 41 Neb. L. Rev. 1, 49-59 (1961); Note, "The Going and Coming Rule," 41 N.D.L. Rev. 185, 186-192 (1964-1965); 99 C.J.S. Workmen's Compensation § 232 et seq.
Workmen's compensation represents an attempt by the Legislature to place the burden of work-related injuries on the employer, who ultimately passes it on to the consumer. This is consistent with the philosophy that injuries are a cost of production and consumption. Our workmen's compensation scheme is "humane social legislation" aimed at placing the burden of compensation on those who benefit most from the manufacture of the product. Hornyak v. Great Atlantic & Pacific Tea Co., 63 N.J. 99, 101 (1973). The liberal intent of the Legislature has been held to include injuries which occur even after employment has been terminated. E.g., Thornton v. Chamberlain Manufacturing Corp., 62 N.J. 235 (1973). Our courts never interpreted
the statute literally to apply solely to accidents on the employer's premises. See Hornyak, supra at 102-103 of 63 N.J. and cases cited therein.
Since the workmen's compensation law was enacted in 1911, our concepts as to the nature of employment and employer-employee relationships have undergone substantial changes, both legally and sociologically. I am of the opinion that traveling and its hazards have long been an essential part of the job. Ricciardi v. Aniero Concrete Co., 64 N.J. 60, 63 (1973) (Jacobs, J., dissenting). The going and coming rule should be abandoned. Judicial constructions created in a distant social and legal context are not immutable rules incapable of being discarded.*fn1 See White v. Atlantic City Press, 64 N.J. 128 (1973), overruling Beh v. Breeze Corp., 2 N.J. 279 (1949).
The arguments for abandoning the rule have been forcefully set out in Ricciardi v. Aniero Concrete Co., supra, 64 N.J. at 63-66; Hornyak, supra, 63 N.J. at 101-105; Hammond v. Great Atlantic & Pacific Tea Co., 56 N.J. 7, 11-13 (1970); Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 216-221 (1953) (Jacobs, Heher and Wachenfeld, JJ., dissenting).
Adherence to the going and coming rule coupled with the tendency to expand the traditional exceptions thereto, have led to inequitable and often illogical distinctions undermining initial justifications for retaining the rule. See Note, supra, 20 Rutgers L. Rev. at 618-619; Note, supra, 41 N.D.L. Rev. at 193. The holding of the majority herein is perhaps best compared with Ricciardi v. Damar Products Co., 45 N.J. 54 (1965), where the Court held compensable an accident occurring while an employee was returning from a picnic. The outing was sponsored by the employer, but was
held on a nonworking day without mandatory attendance. Chief Justice Weintraub's ...