Clapp, Jayne and Schettino. The opinion of the court was delivered by Schettino, J.A.D.
This is an appeal from a judgment of the County Court dismissing petitioner's application for compensation and reversing a judgment of Department of Labor and Industry, Division of Workmen's Compensation, awarding compensation to petitioner.
Petitioner was and is a regular patrolman on defendant's police force. On February 4, 1956 he completed his usual tour of duty at 6:00 P.M. He reported "off duty" at his police station, left for home still in uniform and boarded a bus. He testified that: "When I arrived at my destination, Martin and Twenty-first Avenue, as I left the bus , I slipped and fell. It was an icy sidewalk." (Italics ours) He
sustained a fracture of his left foot. The nature and extent of the disability is not a subject matter of this appeal.
Petitioner seeks compensation under the Workmen's Compensation Act, R.S. 34:15-7. Defendant filed an answer alleging that "petitioner did not sustain an accident resulting in an injury while and during the course of his employment." The claim came on for hearing before a compensation referee at a formal hearing, (but see N.J.S.A. 34:15-22, 34:15-54.1, 34:15-57) on December 19, 1956 and at the hearing, defendant stipulated all the jurisdictional elements, including the fact that petitioner sustained a compensable accident arising out of and in the course of his employment.
Thus, the only issue to be determined there was the nature and extent of permanent disability. The referee entered a "consent judgment," allowing petitioner 15% of the left foot, an amount equivalent to $900, together with certain unpaid medical bills in the amount of $34.25, and disallowing certain other medical expenses.
On January 9, 1957 the entire proceedings were reopened by consent and the stipulation previously made admitting the jurisdictional facts was withdrawn. Defendant by consent reasserted the defense previously raised in its answer, that petitioner did not sustain an accident arising out of and in the course of his employment. The only evidence introduced at that hearing was petitioner's report dated February 11, 1956 to his police department, in which he gave his version of the accident.
Petitioner through his attorney stated, but did not prove on the record, that defendant's plain-clothesmen "are given tickets but they do not give them to the men in uniform because drivers of busses recognize the men in uniform." Defendant conceded that a police officer is subject to the preservation of the peace and order and the prevention of any violation of law or commission of crime at all times. Although the record is barren of proof, the referee stated that, by way of stipulation, plain-clothesmen or the persons in the department who do not wear a uniform, are given tickets because drivers of busses recognize them, and that defendant entered into an agreement with the bus company
to reimburse it for transportation afforded police officers. The referee concluded that transportation was provided by the defendant, that the accident happened during transportation time, and since an officer would be under a duty to take action in any disturbance or other breach of the peace that might happen at the time of transportation, the accident arose out of and in the course of the employment and he accordingly entered a judgment for petitioner.
Defendant appealed to the County Court which stated that the sole question before it was whether or not petitioner was engaged in the course of and within the scope of his employment at the time he sustained injuries. The County Court reversed the judgment of the Division and dismissed the petition. It is to be noted that the County Court found that petitioner: "Upon arrival at his destination, while leaving the bus, * * * slipped and fell on an icy sidewalk * * *."
At argument several stipulations were entered into. Defendant conceded that on occasions petitioner, while at home and off duty, had been called to and did quell certain disturbances which took place in the housing project in which he lived and further that the manual of the police department of defendant could be considered as part of the record. Particular attention was drawn to the manual's General Rule 3 and Uniforms and Equipment Rule 53. Rule 3 provides that a member of the police department shall be fit for and subject to duty at all times except when on sick report, shall devote his entire time and attention to the service and shall not engage in any other business or calling except when suspended without pay. Rule 53 provides that a police officer shall not wear his uniform sooner than one hour before beginning duty nor later than one hour after ending duty. Petitioner additionally points out that there are other restrictions ...