On appeal from the former Supreme Court.
For reversal -- Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- Justice Heher. The opinion of the court was delivered by Oliphant, J.
This is a workmen's compensation case in which the sole issue is whether prosecutor's decedent died as the result of an accident arising "out of" his employment within the intendment of the Workmen's Compensation Act.
Petitioner's claim was dismissed in the Workmen's Compensation Bureau. The accident having occurred out of the State and the judgment of the Bureau therefore not being reviewable in the Court of Common Pleas, certiorari was allowed directly to the former Supreme Court which reversed the judgment of the Bureau. Respondent now appeals from that judgment.
The decedent was employed by respondent as a salesman or traveling sales representative temporarily working out of its Detroit office. He was required to use his own automobile
for traveling for which he was reimbursed on a mileage basis by the respondent.
On December 20, 1945, decedent was driving his car from Chicago, Illinois, to Muskegon, Michigan, for the purpose of keeping a business appointment in the latter city. It was snowing heavily and while en route he stopped his car to pick up one Smith, a hitch-hiker in civilian clothes. They proceeded and near Benton Harbor, decedent stopped at a restaurant for lunch and after the meal took out his wallet to pay the check. Smith noticed that Beh, the decedent, had a "big sum" of money. It was then Smith formed the intent to rob decedent of his money and car. Proceeding in the car after lunch Smith pulled out his gun, told Beh it was a stick-up and to slow the car down. Decedent attempted to resist the robbery and during the struggle was shot and killed. Appellant had neither forbidden deceased to pick up riders nor did the contract of employment require him to give rides to hitch-hikers.
It is conceded the accident arose "in the course of" the employment.
Early in the history of judicial interpretation of the Workmen's Compensation Act it was held "An accident arises 'out of' the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it * * *. A risk is incidental to the employment when it belongs or is connected with what a workman has to do in fulfilling his contract of service." Bryant v. Fissell, 84 N.J.L. 72 (Sup. Ct. 1913); and in Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43 (Sup. Ct. 1935); affirmed, 116 N.J.L. 92 (E. & A. 1936), it was said a risk is incidental to the employment when it grows out of or is connected with what a workman has to do in fulfilling his contract of service. A risk may be incidental to the employment when it is an ordinary one directly connected therewith or one indirectly connected with the employment because of its special nature. There must be a causal connection between the condition under which the work is required to be done and the resulting injury.
That injury must have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.
The case of Sanders v. Jarka Corp., 1 N.J. 36, 61 A.2d 641 (Sup. Ct. 1948), is cited and relied upon by petitioner in support of her contentions. The holding there affords her little comfort for the law is therein set forth that in compensation cases, where injuries are sustained on the highway by an employee in the course of his employment the following tests should ...