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

• Decision Date: 13 June 1961
• Docket Number: No. A--268,A--268
• Citation: 172 A.2d 16,68 N.J.Super. 177
• Parties: Anna E. O'BRIEN, Petitioner-Appellant, v. FIRST CAMDEN NATIONAL BANK & TRUST COMPANY, Respondent-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 177

68 N.J.Super. 177

172 A.2d 16

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

No. A--268.

Superior Court of New Jersey Appellate Division.

Argued May 8, 1961.

Decided June 13, 1961.

Frank W. Thatcher, Runnemede, for petitioner-appellant (Joseph R. Moss, Runnemede, attorney).

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

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Petitioner Anna E. O'Brien seeks to set aside a judgment in the County Court based on an opinion reported at 64 N.J.Super. 127, 165 A.2d 325. Said judgment, dismissing her dependency claim petition, reversed a judgment in the Workmen's Compensation Division which had awarded her compensation for the death of her husband Joseph O'Brien. His death on September 11, 1958 resulted from injuries sustained two days earlier when he was struck by an automobile while he was walking across East Browning Lane, a public highway in the Borough of Bellmawr.

The sole question to be resolved on this appeal is whether the fatal accident arose out of and in the course of O'Brien's employment with respondent, First Camden National Bank & Trust Company; specifically, whether, under the circumstances of this case, decedent's death might be deemed compensable on one of the following theories advanced by petitioner: (a) that decedent when fatally injured was engaged in performing a 'special service' for respondent; (b) that he was then engaged in an activity encompassed by his regular daily employment; (c) that at the time he was engaged in the accomplishment of a 'dual purpose,' including one primarily in the interest of the bank; or (d) that recovery was justified on the 'positional risk' doctrine or the 'if but for the employment' doctrine, citing Olivera v. Hatco Chemical Co., 55 N.J.Super. 336, 150 A.2d 781 (App.Div.1959), certification denied 30 N.J. 557, 154 A.2d 449 (1959).

Respondent asserts that none of the foregoing contentions is justified by the evidence and that the County Court properly denied petitioner recovery. The fatal accident, asserts respondent, occurred while decedent was en route from his home to the place where his daily work began and hence was noncompensable.

The facts are not in dispute. On August 4, 1958 respondent, having its main office at Camden, hired O'Brien to be a custodian or guard at its newly constructed branch bank located at the northwest corner of Black Horse Pike and Browning Road in the Borough of Bellmawr. The branch was actually opened to the public for business on August 14, 1958.

From August 4 to August 14, with the exception next hereinafter mentioned, O'Brien reported for work daily at 8:00 A.M. at the branch bank where he performed general janitorial duties while the work incident to the interior decoration of the building, preparatory to its opening, was being completed. Shortly before August 14 decedent, at respondent's direction, went to its main office where, for a day or two, he received orientation and instruction with reference to his prospective duties as guard and custodian.

From the time of his employment to the date of his death decedent lived at his son's home at Creek Road, Bellmawr, located six blocks west of the site of the branch bank.

As a result of conferences between respondent's manager and the chief of police of the Borough of Bellmawr, it was arranged for 'security reasons' that on each morning commencing August 14 O'Brien was initially to go to the police station located on the north side of East Browning Lane, about 500 feet east of the branch bank building, where a police officer duly assigned would join him and accompany him to the bank. Pursuant to that arrangement, decedent's son, as an accommodation to his father, transported him each work day to a point on the south side of East Browning Lane directly opposite the police station. Decedent would alight from his son's car, cross the road to the station and await the arrival of a police car whose driver would be summoned by radio. The police-operated vehicle would then transport decedent to the bank where, in the presence of the police officer, he would unlock the bank door and enter the building. That procedure was followed up to the day of the accident and thereafter continued by another employee of respondent who took decedent's place.

At about 7:55 A.M. on September 9, the morning of the fatal accident, decedent, as above stated, alighted from his son's car opposite the police station and, as he was crossing the road to go to the station, was struck by an automobile.

Petitioner concedes, as expressed in her counsel's brief, 'that ordinarily' when an employee is injured 'on his way' to or from 'his regular place of employment' such 'injury is not work-connected.' She contends, however, that decisions so holding are not here applicable. She asserts that the accident, happening under the circumstances above outlined, should, under one of the aforesaid theories advanced by her, be deemed to have arisen out of and in the course of her husband's employment and that the County Court erroneously determined that it occurred simply while decedent was on his way to work.

To support her contention petitioner relies principally on testimony of the chief of police with reference to conferences between him and the branch manager preceding August 14, at which the aforesaid arrangements for police protection at the branch bank were made. The discussion, as outlined in the chief's testimony, centered on the need for such protection at the opening of the bank for business each morning. He testified that the branch manager agreed with his observation that the 'most risky time for the bank * * * was when the bank was opened in the morning' and that the 'preliminary arrangement was to have Mr. O' Brien report to the police station * * * so that we could call the radio car in and have them take Mr. O'Brien back to the bank where he opened the door.'

On the use of the aforesaid words 'preliminary arrangement' petitioner bases her primary contention that decedent at the time of the aforesaid accident was not simply on his way to work but was engaged in 'special service' for respondent. She argues, as expressed in her brief, that he 'was hired as a guard at the bank'; that the 'bank opened at 8:00 A.M. That was the time he was expected to commence his work.' From this premise petitioner, adopting a definition of 'special services' from the opinion in Moosebrugger v. Prospect Presbyterian Church, 12 N.J. 212, 215, 96 A.2d 401 (1953), asserts in her brief: 'When the decedent was told to go to the Police Station, he certainly was doing some work (or, as expressed in Moosebrugger, rendering a service) 'out of the ordinary, unusual or one not contemplated under the terms of the employment. " For emphasis, petitioner's brief poses the question whether decedent would have been discharged if he had 'refused to go to the Police Station' and if, instead, he had proposed that he 'would go directly to the bank.' The brief then suggests: 'Can anyone say that the instruction to report to the Police Station was not incident to the job of decedent?' To justify the alleged pertinency of the posed questions petitioner draws the following phrase from the opinion in Ferragino v. McCue's Dairy 128 N.J.L. 525, 527, 26 A.2d 730, 731 (Sup.Ct.1942): '* * * Ferragino was under orders from his master, and it is not easy to see how he could have refused to obey except at the risk of losing his job.'

The definition of 'special services' in Moosebrugger, supra, the aforesaid posed questions and the quoted phrase from Ferragino, supra, afford no justification for the position taken by petitioner under the facts in the case at bar. The words 'preliminary arrangement' are treated by petitioner as the equivalent of a 'temporary arrangement,' for which concept the proofs afford no support. Clearly it was an arrangement made prior to the formal opening of the new bank and to be followed each bank day thereafter. There was nothing temporary about it. When the case was tried, nearly a year later, the arrangement was still in force. The simple fact and only justifiable inference from the proofs is that, instead of decedent's commencing his daily work at the branch bank building, his daily job assignment as the result of the 'security' plan originated at the police station to which by respondent's instruction he was to go each morning for the purpose above outlined. Until he arrived at the station he was on his way to work. The accident occurred within the 'going to and coming from rule' enunciated in Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438 (E. & A.1938); cf. Makal v. Industrial Commission, 262 Wis. 215, 54 N.W.2d 905 (Sup.Ct.1952).

In Ferragino, supra, petitioner, who worked for a family corporation engaged in the retail milk business and who had no fixed hours of employment, occasionally did work having 'no obvious connection with the milk business,' for which he received no extra wage. On the day in question one of the officers of the corporation, with authority to so act, directed petitioner and other employees to move a piano which had been used at a bazaar conducted by a church, a customer of respondent. Ferragino was injured in an automobile accident while going from the dairy plant to the church. The court (128 N.J.L. at p. 527, 26 A.2d at page 730), held that while moving 'a church piano from one spot to another on a church property is not ordinarily Per se an incident to the dairy business, * * * it may become so when done, as here, on the order of the employer for a customer in the effort to build up good will and to retain the customer's friendly interest.' No similarity exists...