Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D. Goldmann, S.j.a.d. (dissenting).
Here the Workmen's Compensation Division held that the injury petitioner sustained did not arise out of and in the course of his employment by the appellants and denied compensation. The County Court reversed. Hence this appeal.
Petitioner was employed by defendants as a night gasoline station attendant, selling gasoline and oil and answering the telephone for tow calls. He had worked for the defendants for six months prior to the accident. On June 11, 1953, while on duty, he had the company of a man known to him only as "Frankie" who occasionally visited with petitioner while he was working. Between 1 A.M. and 2 A.M. the horn of an automobile parked and unattended at a closed gas station across the street from where the petitioner was employed began sounding and continued for five or ten minutes before he went over and disengaged the wire of the car to stop the noise. After doing this petitioner stepped back and fell into a grease pit, sustaining the injuries for which he sought compensation in the Division.
Plaintiff testified that the noise irritated him and annoyed the neighbors who were calling out to him to eliminate it. He also testified that after the noise began the telephone in his station rang and he could not understand what was being said because of the noise and the fact that the station door was open and near the phone. He said that it was for these reasons that he went on his ill-fated venture across the street.
On cross-examination, petitioner was asked whether one of his employers, Mr. Benedetto, had not told him prior to the date of the accident never to leave the gas station. Petitioner's response was: "He spoke to me time and again never to leave the gas station alone." The most recent such
direction was the night before the accident. In relation to this subject, Mr. Benedetto testified that his instructions to petitioner were:
"* * * never to leave the place alone but that alone meant never to leave anybody in there because even people sitting in the office if he is pumping gas they steal cigarettes and other things. That alone meant never to leave anybody else in there or anybody -- never to leave the premises. He knows that."
The statement, "He knows that," was ordered stricken upon motion. This appears to us to have been erroneous since the fair inference of the comment by the witness, in the light of the remainder of his testimony, was that petitioner was apprised of the direction never to leave the premises. Entirely without regard to the stricken statement, however, the record establishes petitioner's knowledge in relation to the direction, as Benedetto immediately thereafter was asked:
"Q. And he was specifically told to stay on the premises? A. Never to leave the premises."
On cross-examination the witness explained that the purpose of his direction to the petitioner never to leave the premises was to prevent petty stealing by loiterers. On re-direct examination he said that the phone in the office was some 12 to 14 feet from the door of the station and that the door could be closed. It also appeared that at the time of the accident the police were on the way to the scene as a result of calls from persons aroused by the noise and that when they arrived there they found petitioner in the pit; also that a neighbor had by that time come onto the street to see about the noise.
The deputy director in the Workmen's Compensation Division held that "petitioner was a volunteer at the time he left his place of employment and went across the street to stop the blowing of the horn." He further ruled "that the act of the petitioner in leaving his place of employment and going across the street to another gas station to stop the blowing of the horn of an automobile located there was not
part of his employment but was an act separate and apart from his duties for the respondent," and that for these reasons he had not sustained his burden of proof to establish that he suffered an injury as a result of an accident arising out of and in the course of his employment.
On appeal to the Essex County Court, the ruling in the Division was reversed. The county judge found that petitioner's explanation as to why he went across the street was entitled to credence; that "his leaving of his post was designed to serve the business of his master"; and that the risk to which he subjected himself must be held to have been an incident of his employment as distinguished from one, the genesis of which was dissociated from his duties and hence, voluntary and self-serving in nature." The court further found that petitioner had not violated any orders pertaining to his employment; that the requirement that he should not leave the premises alone was met by petitioner, notwithstanding his crossing of the street, either because the premises were left in the custody of "Frankie" or because they were at no time beyond petitioner's view. He also held that respondents' contention that compensation should be disallowed because petitioner was engaged in tampering with a motor vehicle, in violation of R.S. 39:4-49, was without merit since his actions did not amount to malicious conduct resulting in damage to or loss of dominion over a vehicle of another and, therefore, did not transgress the intent of the statute.
In undertaking the resolution of this appeal, we may make new or amended findings of fact when necessary to accord with substantial justice, R.R. 1:5-3; 2:5, but are to be mindful of the principle that where a County Court reverses a finding of fact by the Workmen's Compensation Division, we are to accord much weight to the finding of the County Court "and not disturb it unless we are well satisfied that the finding is a mistaken one" either in fact or in law. Galloway v. Ford Motor Co. ...