Clapp, Hall and Hegarty. The opinion of the court was delivered by Clapp, S.j.a.d.
This is a workmen's compensation case. The employer appeals from a judgment of the Hudson County Court, affirming a judgment of the Workmen's Compensation Division which awarded compensation to the employee.
The employee, the sexton of St. Vincent de Paul, Bayonne, N.J., was injured March 29, 1952. As a result of a prior, comparatively minor injury to an arm, he had been receiving workmen's compensation for a period of 34 days to and including March 28, 1952 and (as the employer states) "was unable to work during that period." For the time stated, the keys to the church, which theretofore he had always carried, were turned over to one designated the "relief man." The employee testified that on March 27, a Thursday, the acting pastor, his "boss," came to his home and told him that "the job was all right," and that (as the housekeeper testified) when he was feeling able, he was to go to the rectory to pick up the keys so as to open the church for the first Mass on Sunday, March 30, at 4:45 A.M. On
Saturday night, March 29, at about 7:00 P.M., he was on his way to the rectory for this purpose, in fact had reached the street adjacent to the church property, when he was struck by an automobile. The proceeding here is for the injuries thus sustained.
We may dispose summarily of the employer's various arguments on the facts. Imputations are cast on the credibility of the testimony of the employee (whom the deputy director characterized as a "simple, sincere and wholly truthful person") and of his housekeeper, because of comparatively minor points, which need not be dealt with here. Stress is also put on a written statement procured from the employee by an insurance investigator. But this statement was somewhat discredited by the deputy director because of what he regarded as a certain lack of sincerity on the part of the investigator, while on the stand. Besides, the statement merely declares (if we may stress the word "then") that "the priest did not know that I was coming up then [on Saturday night]"; this does not contradict the employee's testimony.
Furthermore, the employer's counsel in his argument on the facts tried to make something of the circumstance that the employee had not brought the acting pastor into court as a witness in order to corroborate the employee's story. But the fact is that the deputy director advised the employer's counsel himself to produce this priest, his own insured, and counsel replied, saying it was impossible to get him to come to court.
There are factual questions, too, as to how many sets of keys there were, as to whether the substitute sexton was to get his keys to the employee (and if so, when), as to what the employee intended to do, if anything, at the church on Saturday night in addition to picking up the keys, and as to who was to lock or close the church that night; but those questions were not raised below. With concurrent findings by the Division and the County Court, we clearly should not interfere with respect to the factual aspects of this case; there was no glaring irreconcilability between the investigator's statement and the testimony, nor any palpable error
or plain injustice committed below. Mahoney v. Nitroform Co., Inc. , 20 N.J. 499, 507 (1956).
The employer, however, accepting arguendo the facts as found below, raises other questions, namely, first, whether the relation of employer and employee existed at the time of the accident and, second, whether the accident arose out of and in the course of the employment. With respect to the first question, the argument is that the employment relation had been suspended when the first accident occurred and that at the time of the second accident it had not yet been reinstated. In support of this contention, it is maintained first that since such a relationship is of a consensual character and since the employer had no knowledge of the employee's intention to come to the church at the particular time he chose, it "could not possibly have consented to his return at that time." But this does not establish that the employer did not consent. One consenting on Thursday to the performance of an act at sime time before Sunday may be taken to be consenting at the time of the performance.
The employer next claims that there was no employment relation on Saturday night because he "had not * * * reported for duty." Riggs v. New York Shipbuilding Corp. , 16 N.J. Misc. 92 (Sup. Ct. 1938). But here the priest had come to his home on Thursday and then placed him under a duty to pick up the keys. He was engaged in performing this duty at the time of the accident.
Nor does the fact that the employee was not being paid wages at the time of the accident -- assuming that to be the fact -- establish that there was no employment relationship. Van Ness v. Borough of Haledon , 136 N.J.L. 623, 626 (E. & A. 1947). If the claimant was not being paid for his work on Saturday, he may have been (and doubtless was) undertaking to ...