O'Brien v. First Camden Nat. Bank & Trust Co.

• Decision Date: 02 April 1962
• Docket Number: No. A--81,A--81
• Citation: 37 N.J. 158,179 A.2d 740
• Parties: Anna E. O'BRIEN, Petitioner-Appellant, v. FIRST CAMDEN NATIONAL BANK & TRUST COMPANY, Respondent-Respondent.
• Court: New Jersey Supreme Court

Page 158

37 N.J. 158

179 A.2d 740

Anna E. O'BRIEN, Petitioner-Appellant, v. FIRST CAMDEN NATIONAL BANK & TRUST COMPANY, Respondent-Respondent.

No. A--81.

Supreme Court of New Jersey.

Argued Feb. 5, 1962.

Decided April 2, 1962.

Joseph R. Moss, Runnemeade, for petitioner-appellant.

A. Millard Taylor, Camden, for respondent-respondent.

The opinion of the court was delivered by

FRANCIS, J.

In this workmen's compensation case the issue is whether decedent's fatal accident arose out of and in the course of his employment. The Deputy Director made an award, the County Court reversed, 64 N.J.Super. 127, 165 A.2d 325 (1960), and was affirmed by the Appellate Division, 68 N.J.Super. 177, 172 A.2d 16 (1961). We granted certification, 36 N.J. 135, 174 A.2d 922 (1961).

On August 4, 1958, decedent, Joseph O'Brien, was engaged as a bank guard and custodian by First Camden National Bank & Trust Company. He was employed to work at a newly constructed branch located at the northwest corner of Black Horse Pike and Browning Road in the Borough of Bellmawr. The bank was opened to the public for business on August 14, 1958. From August 4 to 14, O'Brien reported for work at 8 A.M., quite obviously the time fixed for the beginning of his day, and did odd jobs and janitorial work while awaiting the formal opening of the bank. Shortly before August 14 he was sent to the employer's main office where, for a day or two, he received instruction about his functions as guard and custodian, the uniform he was to wear and the gun he was to carry.

Part of O'Brien's obligation, at least from August 17 on, was to open the bank at 8 A.M. He was given possession of the key in order to do so. At some time before August 14, just when does not appear, his superior told him that instead of coming to the bank first he should go to Borough police headquarters, where an officer in a radio patrol car would be designated to drive him, or go with him to the bank, and stay with him while he opened up and made certain that everything was safe. This arrangement resulted from conferences between the bank manager and the chief of police. They agreed that the opening time when O'Brien would be alone was a 'risky' period and such a plan was advisable for security reasons. This meant, of course, that if the bank was to be opened on the hour, O'Brien's work day had to begin early enough so that the new incidental mission could be accomplished before that time.

Why it was deemed necessary to send O'Brien to police headquarters for the radio car and the officer, rather than simply have that officer or some other one meet him at the bank at 8 A.M. each day, was not explained. Although there was some discrepancy in the testimony, the Deputy Director in his determination said police head-quarters is about 200 feet east of the bank. In any event, it is located a short distance away on Browning Road on the same side of the street as the bank. The police chief testified the arrangement was a 'preliminary' one. It may have been considered an experimental procedure at its inception because of the imminence of the bank opening and the newness of its operation. No specific proof was adduced on the subject to contradict the chief's statement. Since, for purposes of this case, we are concerned with the situation as of August 14 and thereafter until O'Brien's fatal accident on September 9, 26 days later, it seems just to consider the security plan as it was described, i.e., a preliminary one. it is so referred to in the Deputy Director's findings.

O'Brien lived on Creek Road, Bellmawr, some distance west of Black Horse Pike. The bank is located on the northwest corner of Browning Road and Black Horse Pike. Decedent resided with his son, who drove him to work in the morning. Prior to inauguration of the security, arrangement, the son proceeded in an easterly direction to a point opposite the bank and dropped his father there in time to report for duty at 8 A.M. Beginning with August 14, however, the son did not stop on reaching the bank; he continued east on Browning Road the short distance to police head-quarters, at which point his father alighted and walked across the street. When the police escort joined him, O'Brien retraced the distance to the bank and opened the door under the watchful eye of his companion.

On September 9, 1958, at about 7:55 A.M., decedent's son drove him past the bank and, as usual, dropped him opposite police headquarters. While crossing the street he was struck by an automobile and suffered fatal injuries.

Petitioner, decedent's widow, sought workmen's compensation against the bank on the ground that her husband had come to his death as the result of an accident which arose out of and in the course of his employment. The claim was resisted on the theory that O'Brien was just coming to work when injured; that his day of service to the employer had not yet begun, and would not begin until he actually stepped from the public sidewalk onto the police headquarters premises. The Deputy Director felt that O'Brien was engaged in a 'special errand' for the bank at the time of the accident and so was in the course of his employment. The County Court and Appellate Division decided to the contrary, declaring that he was simply on his way to report for duty and had not yet entered the active service of his employer.

In the administration of workmen's compensation laws, a doctrine grew up known as the 'going and coming' rule. In the jurisdictions where adopted, it signified that until an employee came on the employer's premises he was not in the course of employment; also, that at the end of the work period on leaving the premises he stepped out of the course of employment. In short, injuries received En route to and from work were said to be non-compensable. 1 Larson, Workmen's Compensation Law (1952) § 15.00. New Jersey took the same position. Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438 (E. & A. 1938); Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 96 A.2d 401 (1953). The sweeping generality of the rule inevitably spawned exceptions. Neumeister v. Eastern Brewing Corporation, 73 N.J.Super. 193, 179 A.2d 551 (App.Div.1962), certif. den. 37 N.J. 88, 179 A.2d 416 (1962); Ryan v. St. Vincent de Paul Roman Catholic Church, 41 N.J.Super. 206, 124 A.2d 315 (App.Div.1956); Cerria v. Union News Co., 31 N.J.Super. 369, 106 A.2d 745 (App.Div.1954); Bradley v. Danzis Pharmacy, 5 N.J.Super. 330, 69 A.2d 36 (App.Div.1949); Bobertz v. Board of Education of Hillside Tp., 134 N.J.L. 444, 48 A.2d 847 (Sup.Ct.1946), reversed on other grounds 135 N.J.L. 555, 52 A.2d 827 (E. & A. 1947); Larson, supra, §§ 15.12, 16.00--17.00. Within the spirit and logic of the qualifications it may be said that a turning aside from the customary route to or from work in order to do something for and at the direction of the employer brings the employee within the course of his employment, at least during the side trip. A like conclusion should be drawn where, for the same reason in coming to or going home from work, he goes beyond his usual place of work or beyond his home. During the extension of the journey and while retracing his steps, he must be considered within the protected scope of his employment. See, e.g. Sheehan v. Board of Trustees, 256 App.Div. 148, 9 N.Y.S.2d 235 (App.Div.1939); Martin v. Lavender Radio & Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (Sup.Ct.1957).

The various exceptions adopted have in turn brought back into sharper focus the basic statutory test of compensability, that is, whether under the facts and circumstances of the particular situation the injury arose out of and in the course of the employment. Too easy reference to the subordinate going and coming precept manifestly pointed in the...