On appeal from the Superior Court, Appellate Division, whose opinions are reported in 23 N.J. Super. 82.
For reversal -- Chief Justice Vanderbilt, and Justices Oliphant, Burling and Brennan. For affirmance -- Justices Heher, Wachenfeld and Jacobs. The opinion of the court was delivered by Oliphant, J. Jacobs, J. (dissenting). Heher and Wachenfeld, JJ., concur in this opinion.
[12 NJ Page 213] 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 (E. & A. 1930); Gullo v. American Lead Pencil Co., 119 N.J.L. 484 (E. & A. 1938); Grady v. Nevins Church Press Co., 120 N.J.L. 351 (E. & A. 1938); Popovich v. Atlantic Products Corp., 125 N.J.L. 533 (Sup. Ct. 1941); Cossari v. L. Stein & Co., 1 N.J. Super. 39 (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 errand incidental to his employment, Bobertz v. Board of Education, 134 N.J.L. 444 (Sup. Ct. 1946), reversed on other grounds 135 N.J.L. 555 (E. & A. 1947); Bradley v. Danzis Pharmacy, 5 N.J. Super. 330 (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 (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, 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 ...