Moosebrugger v. Prospect Presbyterian Church of Maplewood

• Citation: 96 A.2d 401,12 N.J. 212
• Decision Date: 27 April 1953
• Docket Number: No. A--112,A--112
• Parties: MOOSEBRUGGER v. PROSPECT PRESBYTERIAN CHURCH OF MAPLEWOOD.
• Court: United States State Supreme Court (New Jersey)

Page 212

12 N.J. 212

96 A.2d 401

MOOSEBRUGGER v. PROSPECT PRESBYTERIAN CHURCH OF MAPLEWOOD.

No. A--112.

Supreme Court of New Jersey.

Argued March 9, 1953.

Decided April 27, 1953.

Herman M. Wilson, Newark, argued the cause for the plaintiff-respondent.

Thomas J. Brett, Newark, argued the cause for the defendant-appellant (O'Brien, Brett & O'Brien, Newark, attorneys).

The opinion of the court was delivered by

OLIPHANT, J.

This is a workmen's compensation case. Petitioner was the sexton of the Prospect Presbyterian Church of Maplewood in that borough. As such sexton he worked regularly, except for his weekly day off, from 8:30 A.M. to 5:30 P.M., and in the evenings when church services, meetings and other activities were held. The stipulation of facts shows that these were held on many weekday nights and that the meeting held on the night of petitioner's accident, November 10, 1948, was one which had been planned and scheduled well in advance and notice of which had appeared in the weekly church bulletins on the two previous Sundays.

Petitioner lived within walking distance of the church. He received a salary of $50 per week and no overtime, meals or other compensation was paid him for any work performed in the evenings. As is usual with church sextons, his duties consisted, among other things of opening and closing the church, of taking care of furnaces, banking them in the late afternoons, except on meeting nights when he kept the fires going and banking them later. On November 10, 1948 he followed his usual routine, worked until 5:30 P.M., then went home for his supper. After partaking of that meal and while walking back to the church to perform his duties in connection with the scheduled evening meeting of the men's club, he was struck at a street intersection by an automobile and was injured.

In the Bureau it was determined that petitioner's injuries were not suffered 'in the course' of his employment. On appeal to the Essex County Court the finding of the Bureau was reversed, that court holding the injury arose 'out of and in the course of the employment.' From the judgment there entered an appeal was prosecuted by the appellant in the Appellate Division which affirmed the judgment of the County Court by a divided court. A further appeal was then taken to this court by virtue of Rule 1:2--1(b).

The rule in this State is, and it is not disputed, that when an employee is simply on his way to or from his regular place of employment and sustains injury, such injury does not arise out of and in the course of his employment. Gilroy v. Standard Oil Co., 107 N.J.L. 170, 151 A. 598 (E. & A. 1930); Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438 (E. & A. 1938); Grady v. Nevins Church Press Co., 120 N.J.L. 351, 199 A. 578 (E. & A.1938); Popovich v. Atlantic Products Corp., 125 N.J.L. 533, 17 A.2d 492 (Sup.Ct.1941); Cossari v. L. Stein & Co., 1 N.J.Super. 39, 62 A.2d 143 (App.Div.1948).

Here, then, the single question presented is whether the facts bring the case within an exception to the general rule. Several classes of exceptions to the rule are generally recognized, among which are those where the employee is on the street in the special service of his employer or on an crrand incidental to his employment, Bobertz v. Board of Education, 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); Bradley v. Danzis Pharmacy, 5 N.J.Super. 330, 69 A.2d 36 (App.Div.1949); and when an employee's work at the time of the accident arises from an emergency, Van Ness v. Haledon, 136 N.J.L. 623, 56 A.2d 888 (E. & A.1948).

We do not consider that this petitioner comes within one of these exceptions. The general rule applies whether the employee is on a public street while on his way to or from work at the beginning or at the end of his daily employment, or on his way to or from lunch or supper, as in the instant case. Bradley v. Danzis Pharmacy, supra; see Larson's Workmen's Compensation Law (1952), c. IV, sec. 15.50, 51 et seq., pp. 213--214; Palacono v. Garfield Mfg. Co., 8 N.J.Misc. 757 (W.C.B.1930); Strahlendorff v. Bd. of Education, 4 A.2d 848, 17 N.J.Misc. 51 (W.C.B.1939).

The contention of the plaintiff here that he comes within the exception relating to the performing of special services or doing an errand for his employer after regular hours is untenable. The term 'special services' connotes the idea that the service rendered is out of the ordinary, unusual, or one not contemplated under the terms of the employment. Petitioner's routine work consisted of attendance at the church for evening meetings. It was an integral part of his work as the church sexton. There was nothing special about it. Neither was it 'extra work' or 'on call' work. The salary paid him was for services such as he performed on the evening in question. There was nothing special, emergent, unusual, or out of the ordinary connected with his work on that night. He was returning to his place of employment to perform the service required of him and for which he was paid by his weekly stipend, in exactly the same manner and under the same conditions as he reported in the morning or after his noon recess.

Great reliance is placed by petitioner on the case of Bobertz v. Board of Education, supra, but that case is clearly distinguishable. The petitioner there was a school teacher who normally performed her duties at the school to which she was assigned. As an extra-curricular activity she was faculty advisor to a girl's club composed of students at her school. On the night of her accident she attended a meeting of the club at a building other than the school. She left that building and on entering her automobile to return home was assaulted and injured. Her activity at the time of the accident was conducted at a place other than her regular place of employment and at a time when she had no regularly scheduled duties to perform in connection with her employment as a teacher. The decision of the former Supreme Court was predicated on the theory that the petitioner was performing a special service for her employer after regular working hours and that such special service subjected her to extra travel risks which would not otherwise have been encountered. No such situation existed here. Petitioner was not subjected to any unusual risks. What he was doing was routine and normal to the services required of him over the years.

The judgment of the Appellate Division is reversed and that of the Bureau in dismissing the petition is reinstated.

For reversal: Chief Justice VANDERBILT and Justices OLIPHANT, BURLING and BRENNAN--4.

For affirmance: Justices HEHER, WACHENFELD and JACOBS-3.

JACOBS, J. (dissenting).

The Workmen's Compensation Act is remedial legislation designed to place the costs of accidental injuries which are work-connected upon the employer who may readily provide for them as operating expenses. Its pertinent terms provide for compensation to employees for personal injuries by accident 'arising out of and in the course of' the employment. An accident has been said to arise out of the employment when it results from a risk reasonably incidental thereto. Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 446, 25 A.2d 894, 139 A.L.R. 1465 (E. & A. 1942). And it has been said to arise in the course thereof when 'it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.' Bryant Adm'x v. Fissell, 84 N.J.L. 72, 77 86 A. 458, 460 (Sup.Ct. 1913). The doctrine is well recognized that the course of the employment is not confined to the actual work but may extend to reasonable preparations therefor. See Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023 (Sup.Ct.1914) affirmed 86 N.J.L. 708, 92 A. 1087 (E. & A. 1914); 1 Larson, Workmen's Compensation Law (1952), 195. Cf. Waskevitz v. Clifton Paper Board Co., 7 N.J.Super. 1, 3, 71 A.2d 646 (App.Div.1950). It may be suggested that liberal application of this doctrine would likewise encompass travel to and from work as incidental to the employment, and that accidental injury during its course may justly be deemed work-related. Nevertheless, the general rule is otherwise and our courts have held that the employment ordinarily commences and terminates at the employer's premises and that injuries which occur while the employee is traveling to and coming from the employer's premises are not compensable. See Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 486, 196 A. 438 (E. & A. 1938), where the court rejected compensation to an employee who was injured along the public sidewalk while entering the gates to her employer's factory; although Justice Lloyd indicated that an artificial line between employment and non-employment had to be drawn somewhere, might not justice and the purposes of the act have been furthered if it had been drawn antecedently, perhaps when Miss Gullo left home for the factory on the way dedicated to her employment.

The harshness of the general rule, as construed in the Gullo case, has led to numerous decisions which have either restricted its application (Cossari v. L. Stein & Co., 1 N.J.Super. 39, 43, 62 A.2d 143 (App.Div.1948)) or have declared express exceptions thereto. See Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 579, 189 A. 662 (E. & A.1937); McCrae v. Eastern Aircraft, 137 N.J.L. 244, 246, 59 A.2d 376 (Sup.Ct.1948); Bobertz v. Board of Education of Hillside Twp., 134 N.J.L. 444, 447, 48 A.2d 847 (Sup.Ct.1946) reversed on other grounds 135 N.J.L. 555, 52 A.2d 827 (E. & A.1947); Bradley v. Danzis Pharmacy, 5 N.J.Super. 330, 332, 69 A.2d 36 (App.Div.1949). See also 8 Schneider, Workmen's Compensation (3rd ed. 1951), 7; 'the rule as originally laid down was soon discovered to be an unjust one when applied in all cases of travel to and from the home of the employee, and...