Jasaitis v. City of Paterson

• Decision Date: 16 December 1957
• Docket Number: No. A--661,A--661
• Citation: 48 N.J.Super. 103,137 A.2d 1
• Parties: Anthony JASAITIS, Petitioner-Appellant, v. CITY OF PATERSON, Respondent-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 103

48 N.J.Super. 103

137 A.2d 1

Anthony JASAITIS, Petitioner-Appellant, v. CITY OF PATERSON, Respondent-Respondent.

No. A--661.

Superior Court of New Jersey.

Appellate Division.

Argued Nov. 25, 1957.

Decided Dec. 16, 1957.

John C. Wegner, Paterson, argued the cause for petitioner-appellant.

Ervan F. Kushner, Paterson, argued the cause for respondent.

Before Judges CLAPP, JAYNE and SCHETTINO.

The opinion of the court was delivered by

SCHETTINO, J.A.D.

This is an appeal from a judgment of the County Court dismissing petitioner's application for compensation and reversing a judgment of Department of Labor and Industry, Division of Workmen's Compensation, awarding compensation to petitioner.

Petitioner was and is a regular patrolman on defendant's police force. On February 4, 1956 he completed his usual tour of duty at 6:00 P.M. He reported 'off duty' at his police station, left for home still in uniform and boarded a bus. He testified that: 'When I arrived at my destination, Martin and Twenty-first Avenue, As I left the bus, I slipped and fell. It was an icy sidewalk.' (Italics ours.) He sustained a fracture of his left foot. The nature and extent of the disability is not a subject matter of this appeal.

Petitioner seeks compensation under the Workmen's Compensation Act, R.S. 34:15--7, N.J.S.A. Defendant filed an answer alleging that 'petitioner did not sustain an accident resulting in an injury while and during the course of his employment.' The claim came on for hearing before a compensation referee at a formal hearing, (but see N.J.S.A. 34:15--22, 34:15--54.1, 34:15--57) on December 19, 1956 and at the hearing, defendant stipulated all the jurisdictional elements, including the fact that petitioner sustained a compensable accident arising out of and in the course of his employment.

Thus, the only issue to be determined there was the nature and extent of permanent disability. The referee entered a 'consent judgment,' allowing petitioner 15% Of the left foot, an amount equivalent to $900, together with certain unpaid medical bills in the amount of $34.25, and disallowing certain other medical expenses.

On January 9, 1957 the entire proceedings were reopened by consent and the stipulation previously made admitting the jurisdictional facts was withdrawn. Defendant by consent reasserted the defense previously raised in its answer, that petitioner did not sustain an accident arising out of and in the course of his employment. The only evidence introduced at that hearing was petitioner's report dated February 11, 1956 to his police department, in which he gave his version of the accident.

Petitioner through his attorney stated, but did not prove on the record, that defendant's plain-clothesmen 'are given tickets but they do not give them to the men in uniform because drivers of busses recognize the men in uniform.' Defendant conceded that a police officer is subject to the preservation of the peace and order and the prevention of any violation of law or commission of crime at all times. Although the record is barren of proof, the referee stated that, by way of stipulation, plain-clothesmen or the persons in the department who do not wear a uniform, are given tickets because drivers of busses recognize them and that defendant entered into an agreement with the bus company to reimburse it for transportation afforded police officers. The referee concluded that transportation was provided by the defendant, that the accident happened during transportation time, and since an officer would be under a duty to take action in any disturbance or other breach of the peace that might happen at the time of transportation, the accident arose out of and in the course of the employment and he accordingly entered a judgment for petitioner.

Defendant appealed to the County Court which stated that the sole question before it was whether or not petitioner was engaged in the course of and within the scope of his employment at the time he sustained injuries. The County Court reversed the judgment of the Division and dismissed the petition. It is to be noted that the County Court found that petitioner: 'Upon arrival at his destination, while leaving the bus, * * * slipped and fell on an icy sidewalk * * *.'

At argument several stipulations were entered into. Defendant conceded that on occasions petitioner, while at home and off duty, had been called to and did quell certain disturbances which took place in the housing project in which he lived, and further, that the manual of the police department of defendant could be considered as part of the record. Particular attention was drawn to the manual's General Rule 3 and Uniforms and Equipment Rule 53. Rule 3 provides that a member of the police department shall be fit for and subject to duty at all times except when on sick report, shall devote his entire time and attention to the service and shall not engage in any other business or calling except when suspended without pay. Rule 53 provides that a police officer shall not wear his uniform sooner than one hour before beginning duty nor later than one hour after ending duty. Petitioner additionally points out that there are other restrictions imposed upon a uniformed officer such as that he cannot carry any package or bundle, Rule 44. Petitioner urges that these and other rules enforce his contention that, while uniformed, he is under the control and direction of defendant.

We feel, as did the County Court, that the sole question is whether or not petitioner was engaged in the course of and within the scope of his employment at the time he sustained injuries.

Petitioner contends that he had reported off duty at 6:00 P.M., that his police station had no facilities in the form of lockers or rooms for him to change into civilian clothes, that his employment required him to go to and from work in uniform, that, under Rule 53, he had to get out of uniform within one hour of termination of duty, and that the accident happened while on the way home and at 6:20 P.M., well within the one-hour period. Petitioner emphasizes the benefit to defendant and its inhabitants in having uniformed officers in view. Such officers contribute to the safety of the people and act as deterrents to the commission of crimes. Additionally, he points out that under R.S. 48:3--32, N.J.S.A., he is permitted to ride without payment of a fare while in uniform and engaged in the performance of his public duties, and defendant is required to reimburse the bus company for the fare. The conclusion advocated is that since defendant permitted petitioner to ride the bus without payment of fare and since it permitted the fare to be charged against it under this statute, defendant must have considered the petitioner on duty and must have considered that it owed transportation to petitioner, and that therefore injuries resulting from an accident arising out of the act of transportation are compensable.

In its opinion the County Court pointed out that no evidence was presented to the Division of Workmen's Compensation to bottom the referee's conclusions that defendant was either contractually obligated to pay a public transportation company for the cost of transportation of a police officer to and from his home, or that the municipality was obligated to do so under the terms of the employment of the petitioner, or that a custom was proved under which the bus company provided full transportation for defendant's police officers.

It is well settled that in our review of this class of cases we must give due weight to the judgment of the County Court and we will not disturb such judgment unless the interests of justice plainly call for it. Mewes v. Union Bldg. & Construction Co., 45 N.J.Super. 88, 90, ...