Clapp, Smalley and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
This appeal is from a judgment of the County Court reversing an order of the Division of Compensation, Department of Labor and Industry dismissing the petition.
The statutory prerequisites to establish a compensable injury by accident under R.S. 34:15-7 are that petitioner must prove an accident and then must prove that the alleged accident arose not only in the course of employment but also out of the employment. The burden is upon petitioner to prove these essential and indispensable elements by a preponderance of the evidence. Becker v. City of Union City , 17 N.J. Super. 217, 222, 223 (App. Div. 1952). We recognize authority to the effect that, although the County Court should consider the Deputy Director's findings of fact and give due but not necessarily controlling regard to them, this court gives determinative weight in the first instance to the findings of the County Court. Donofrio v. Haag Brothers, Inc. , 10 N.J. Super. 258, 262 (App. Div. 1950).
The appeal presents two issues each of which was decided adversely to petitioner by the Deputy Director and in favor of petitioner by the County Court. They are: (1) was decedent in the course of his employment when the accident
occurred? and (2) was intoxication "the natural and proximate cause" of the accident and did the employer sustain the burden of proof under R.S. 34:15-7?
Petitioner is the widow of John J. O'Reilly, who had been in the employ of defendant, Roberto Homes, Inc., on the day of his death. Petitioner's decedent was employed as a construction laborer on this defendant's building projects in Demarest and Hohokus. His regular work hours were from 8:00 A.M. to 4:30 P.M.
The employer's construction superintendent testified that decedent was given an extra job of lighting oil heaters in the buildings under construction in Hohokus in order to permit plastering and to keep the plaster from freezing. For this extra work the decedent was paid $2 per hour for three hours each day for seven days a week. In carrying out the duties of the extra work O'Reilly would travel by his own automobile some five or six miles each way from his home to the job; once, during the night about midnight, and the other time at about 6:00 A.M. before reporting for his regular work. The total time consumed in filling the oil heaters was between 15 and 30 minutes. The overall time for travel was about an hour.
On December 23, 1951 decedent was returning to his home after refueling the oil heaters when his automobile ran into a tree on the left side of a two-lane public highway 30 feet in width. He was killed instantly. The time of the accident was placed between 2:00 A.M. and 2:55 A.M.
The facts in this case are not in wide dispute, and thus the issues depend upon divergent conclusions as to questions of law rather than fact. As a general rule an injury which occurs when an employee is on his way to or from the place of employment is not covered by the Compensation Act. However, when the transportation is included as part of his remuneration (Demerest v. Guild , 114 N.J.L. 472, 176 A. 558 (E. & A. 1935)), or the employee is on a special errand, the courts have held an exception to the above rule. In Moosebrugger v. Prospect Presbyterian Church , 12 N.J.
212, 96 A. 2 d 401 (1953), the special service exception was held not applicable to a janitor of a church who was injured while on his way to the church in the evening for a special event after his regular daytime job was through. The Supreme Court denied relief because his evening duty was a recurring function, was an integral part of his work, was a normal incident of his work, included in his weekly stipend, and not "extra" work. It should be noted that the Moosebrugger case may be distinguished from the case at hand because "extra work" was involved here and the decedent was recompensed by an added pay arrangement. Here the employer paid the decedent $6 per day extra to keep the oil heaters lit. The assistant superintendent who hired decedent for the extra job testified that there was no agreement as such as to transportation. But further testimony showed that the actual time involved in lighting and refueling the salamanders was 15 minutes to 30 minutes, and the total time involved for the extra job, including traveling time, amounted to three hours each day for which he was paid $6. From this it may be adduced that decedent was paid not merely to light the oil heaters but also for traveling time.
We conclude that the employer and decedent took into consideration that decedent be paid for traveling and also that he use his own car, since he was required to travel late at night when bus transportation was unlikely or at best round about travel. We feel that O'Reilly was in the course of his employment while driving to and from the Hohokus project where the bother and effort of his trips, although regularly made, were important parts of the ...