On appeal from the Superior Court, Appellate Division.
For reversal -- Justices Heher, Wachenfeld, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant and Burling. The opinion of the court was delivered by Wachenfeld, J.
The question on this appeal is whether appellant had removed himself from the coverage of the Workmen's Compensation Act at the time he sustained the injuries for which he now seeks recovery.
Prior to June 11, 1953 appellant, James Green, was employed as a gasoline station attendant. He worked the night shift and his duties were, as he described them, "to sell gas
and oil at night and answer the telephone (for tow calls), take the message and relay it to one of the men who did the towing."
Between 1 A.M. and 2 A.M. on the morning of June 11, he was sitting in the gasoline station with a friend known to him only as "Frankie," who frequently hung around the station at night, when the horn of an automobile parked in a gasoline station across the street short-circuited and commenced blowing. The noise created by the blowing of the horn continued for about five or ten minutes, during which time the phone located inside the door of the gasoline station rang but Green was unable to hear the message because of the blaring of the horn. The noise also aroused the sleeping neighborhood and several persons yelled from their windows to appellant to "stop the noise," and one of the neighbors called the police to report the incident.
Asked how the noise affected him and what he did, appellant said, "Well, I couldn't take care of the phone like I should and answer them when they called, so I went across the street to stop the horn myself." Stopping the horn consisted of raising the hood of the car and disengaging a wire.
This accomplished, appellant started back to his own station, but as he did so, he fell into a grease pit over which the offending car was parked, sustaining a fractured femur and other injuries for which recovery was sought in the Workmen's Compensation Division.
At the hearing before the deputy director, appellant acknowledged he had been told by one of his employers "never to leave the gas station alone." John Benedetto, one of the partners who owned the station at which Green worked, testified appellant's instructions were "to do his job, sell gas and oil, answer the phone calls, if anything came in 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."
At the conclusion of the hearing, the deputy director denied compensation, holding the appellant, in crossing the street to fix the horn, was a volunteer and had departed from his own employment. On appeal from the denial of compensation, the County Court held otherwise, concluding that appellant's "leaving of his post was designed to serve the business of his master," and therefore the injury arose out of and in the course of the employment, and entered an award in appellant's favor.
In the Appellate Division, 34 N.J. Super. 521, the majority reversed the determination of the County Court, holding while "much could be said to support the conclusion of the deputy director that petitioner was not in fact on the business of his employer at the time," it was also clear the petitioner "was specifically enjoined by his employers not to leave the ...