For the prosecutor, Skeffington & Walker (James J. Skeffington, of counsel).
For the respondent, Andrew J. Markey (William Boorstein, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. By concession of counsel for the respective parties, the sole question in issue is whether the employe's death was the result of an accident which arose out of and in the course of his employment.
Sheffield Farms Company, Incorporated, operate grocery stores. In addition to groceries, it also sells provisions, vegetables and milk. It operates twelve of such stores in Bergen county. Decedent was employed by Sheffield Farms Company, Incorporated, which was the respondent below and is the prosecutor here, as manager of its store at Ridgefield Park, New Jersey. In the sense that a purchaser is obliged to pay in cash for the merchandise when it is delivered to him, either at the seller's store or at the purchaser's home, or at the place designated by him, prosecutor conducts this store on what is characterized as a "cash and carry" basis. Prosecutor advertised by a sign on the front of the store (Exhibit P-5) that "orders [were] taken for daily route
delivery." It is of no moment whether this sign relates, as prosecutor contends it does, to its milk business alone for which, we are told, it maintains a daily route delivery. For, prosecutor provides general delivery facilities. It provides trucks for that purpose but they apparently are not used frequently; they are only used when, in the judgment of the manager, the merchandise to be delivered constitutes a "great or big" enough load; prosecutor also provides a delivery boy. But that does not constitute all of the delivery facilities which it provided. Did it not also permit its managers (including decedent) to make deliveries with or without their own cars, and within or without the territorial limits of the particular municipality in which the store managed was located? More as to this later.
Decedent was paid $30 a week plus a sum equal to two per cent. upon all sales which he actually made. By further concession, his salary averaged $34 a week; his hours of employment were between seven A.M., to six P.M. The closing hour, however, varied; it was usually as soon after six P.M. as in the judgment of the manager the store could conveniently be closed.
Decedent lived in Bayonne, New Jersey, about fifteen miles from prosecutor's store. He drove to and from his work in his own automobile, maintained and operated at his own expense. In pursuance of a prevailing practice among prosecutor's managers, decedent openly solicited orders from his friends in Bayonne, caused these orders to be filled and placed in his car during business hours, and personally and publicly delivered them after closing hours by the use of his own car.
About seven P.M., on October 12th, 1931, decedent was driving home, and in his car were the filled orders which he had obtained from his friends in Bayonne for delivery to them. His car, for some unexplained reason, left the public road, at a point about five hundred feet south of the Public Service power station on Tonnele avenue, route No. 2, in the township of North Bergen, New Jersey, turned down an embankment ...