For the prosecutor, Joseph C. Paul.
For the defendant, David T. Wilentz, William A. O'Brien and Raymond Saltzman.
Before Brogan, Chief Justice, and Justices Donges and Porter.
The opinion of the court was delivered by
DONGES, J. Certiorari was allowed to review an order of the Somerset County Court of Common Pleas, made on June 12th, 1939, reversing a judgment of the Workmen's Compensation Bureau, entered February 4th, 1939, and dismissing the petition filed by the petitioner-prosecutrix in the bureau. The only question involved is as to whether the accident, which admittedly caused the death of prosecutrix' husband, arose out of and in the course of his employment with the New Jersey State Highway Commission.
The bureau found as a fact that death resulted from an accident arising out of and in the course of employment. The Court of Common Pleas found "as a fact, that though the decedent died as the result of an accident, the accident did not arise out of, and in the course of his employment."
The undisputed facts are that George Pilkington had been employed by the New Jersey State Highway Department for about fourteen years as a right of way negotiator, with a title of senior civil engineer. His duties consisted in negotiating for and acquiring rights of way for highway purposes. His headquarters were located at Trenton. The Department furnished him a state car which was garaged at No. 12 Earl street, Newark, which was a highway department garage. His immediate superior was John Franssen. The state highway engineer was James Logan. Decedent's usual hours of employment were from nine o'clock in the morning to five o'clock in the afternoon, although, it was testified by Franssen, he frequently put in more time in his work than the hours of ordinary employment required.
On November 23d, 1936, the decedent was in a privately owned automobile, owned and driven by one Norman A. Smith, an inspector of the highway department, together with Morris Radus and Otto L. Fritzsche, engineers of the highway department, all of whom were on their way to a dinner given by an organization known as the "Ten Year Club" at an inn on State Highway Route 29 several miles north of Trenton, near Princeton. Pilkington was a member of this organization. While passing through Somerville, the car collided
with a moving freight train at a grade crossing, and Pilkington sustained injuries from which he died in Somerset Hospital on January 14th, 1937. As above stated, there is no dispute that the injuries so received caused Pinkington's death.
Prosecutrix-petitioner introduced testimony that decedent on November 23d, 1936, drove into the garage at Newark at about four o'clock in the afternoon; that he spoke to some fellow employes at the garage about his desire to see Mr. Logan and discuss some matter that he had been working on; that decedent was in doubt as to whether to re-fill the automobile assigned to him and proceed to Trenton, or, because of the lateness of the hour, to go to the dinner with the hope that Mr. Logan might be there, and, if Mr. Logan was present, he might have an opportunity to discuss the matter with him there. He left the car at the garage, signed "out," went to his home, washed and dressed and went to Fritzsche's home in decedent's mother's car, as arranged with Fritzsche. Smith came in his own car, in which Radus was, to the Fritzsche home and the four proceeded to the place of accident, on their way to the dinner. Pilkington had procured a ticket some time before and clearly intended to attend the dinner. Logan was not a member of the club, but was an invited guest and, a few days before the affair, had concluded to attend.
The prosecutrix relies upon the testimony of Fritzsche to establish her case and particularly ...