Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D.
The petitioner was injured as he slipped on an icy walk just after alighting from a bus on his way home from duty as a patrolman on the police force of the defendant municipality. On his application for workmen's compensation for the resulting injuries he had a recovery in the Division of Workmen's Compensation but sustained a reversal in the Passaic County Court. On appeal to this court the matter was remanded for further proofs in the Division. Jasaitis v. City of Paterson , 48 N.J. Super. 103 (App. Div. 1957). In the remanded proceedings the petitioner again prevailed in the Division but not in the County Court. We thus have the case for a second time on this appeal.
Two issues were discussed in the prior opinion of this court. First, was the bus trip home within the ambit of the employment under any of a number of stated exceptions to the general rule that an accident on the way to or home from work is not compensable? Second, did the actual accident occur in sufficiently close relationship to the transportation as to be referable thereto for compensation purposes? The conclusion was that there was mistaken reliance in the Division upon supposed stipulations concerning the first-stated issue and that the interests of justice required a remand for further proofs on both issues (48 N.J. Super. at p. 111). The whole case was reopened for consideration by the Division anew. Ibid. The ensuing discussion is therefore confined to the proceedings upon remand.
Among the exceptions to the rule of no recovery for accidents sustained while going to and from home, which were noted in the former opinion, are these: when "transportation is furnished by the employer to and from the place of employment"; and when "the employer has furnished transportation to the extent that it has ripened into a 'custom.'" Now that we have a fuller factual record before us, it appears that a determination of the cause requires consideration as to whether the exceptions stated are not subject to further amplification in relation to the precise case before us.
In Rubeo v. Arthur McMullen Co. , 117 N.J.L. 574 (E. & A. 1937), where a superintendent of the employer followed the practice of transporting the deceased workman to and from work in a truck, there was a reversal of a decision of the former Supreme Court denying compensation on the ground (below) that the transportation was a mere matter of convenience to the workman which had not "'ripened into a custom to such an extent as to become part of the contract of employment.'" The Court of Errors and Appeals held that the "liability of the employer in the premises is not so * * * circumscribed"; that the accident would nevertheless be compensable if the transportation were "the result of a practice between the parties which is beneficial both to the employer and employee" (117 N.J.L. at p. 578). The cause was remanded to the Supreme Court for the making of findings of fact as to what was "the continued practice, or the course of business actually followed concerning the transportation of the deceased even though it may not have been the result of either [sic] an express contract or may not have ripened into a custom between the parties," and whether "it [was] for the benefit of both employer and employee" (ibid., p. 579).
On the remand the Supreme Court found in the affirmative on the issues stated and awarded compensation, 118 N.J.L. 530 (Sup. Ct. 1937), affirmed 120 N.J.L. 182 (E. & A. 1938). The court said: "* * * the furnishing of this accommodation grew, with the knowledge and acquiescence, if not indeed the direction, of the employer, into a practice grounded in mutual convenience and advantage" (118 N.J.L. at p. 532). In a later case it is said that "the basis for our application of the exceptions to the general rule [is] made to rest upon the conduct, the action of the parties with relation to the transportation of the workman to and from his work." Micieli v. Erie Railroad Co. , 130 N.J.L. 448, 453 (Sup. Ct. 1943), affirmed 131 N.J.L. 427 (E. & A. 1944).
We shall have more to say hereinafter concerning the law on the subject at hand, but the basic principles upon which the factual case before us is to be appraised are those stated in the cases cited.
Petitioner's testimony concerning his use of buses was, in effect, as follows. Ever since his joining the Paterson police force in 1928 he has while in uniform ridden the buses without ever being required by bus operators to pay fare. Occasions for such use of buses arose from time to time while on duty and also while off duty. The latter occasions were when going from home to duty or going home from duty, in uniform. An instance of this was the trip home the day he was injured. When riding the buses home he has been expected or called upon at times by bus operators to prevent disturbances or enforce compliance by passengers with regulations, such as prohibition of smoking, etc. He admitted that a locker is provided for him at headquarters where he may leave his uniform when off duty if he wishes to do so, but he chooses to wear the uniform when travelling back and forth between home and headquarters.
Petitioner's strict tour of duty terminates for any given day when he "report[s] back to the bench and salute[s] in." If he goes home wearing his uniform, however, he is subject
to certain rules and regulations in the police manual applicable to any officer wearing a uniform, such as not carrying packages, not entering stores of certain kinds, and being expected to keep order and make arrests for violations of law as though he were actually still on official duty. The manual also requires doffing the uniform within one hour after finishing duty.
William J. Kearns, a motorcycle officer of the respondent, testified as a witness for petitioner that he has had occasion to ride buses while on duty when he could not ride his vehicle. In some instances he has been ordered to take a bus in order to report for school crossing duty. In every such case his bus ride has been without charge, the drivers always indicating he is not to pay.
Daniel Murphy, chief of police for a year, and a police officer in the city for 36 years, was called as a witness for respondent. He testified that policemen are not entitled to free transportation to and from work under the regulations of the board of police and fire commissioners, which governs both of the public safety forces. The regulations were not put in evidence. Adequate appreciation of the significance of the remainder of his testimony requires reference to R.S. 48:3-32. This enactment requires public transportation companies to transport without the collection of fares uniformed public officers while on duty and certain designated non-uniformed law enforcement officials while on duty where their duties require police activity to be performed without uniform. The equivalent fare is credited to the utility against franchise taxes apportioned by law to the municipality where the transportation takes place. Prior to 1929 there was no such credit for the utility. L. 1912, c. 159; L. 1929, c. 324.
Much of Murphy's testimony on direct examination was given in the form of categorical responses to pointedly leading questions. The resolutions appointing policemen do not mention "credit for transportation to and from work." Murphy identified a ticket book containing blank forms of
tickets purportedly issued by Public Service Coordinated Transport "in accordance with Section 48:3-32 of the Revised Statutes (N.J.)." The conditions for use are specified on the back of the book. One of these states the ticket is good "only in connection with official business." Each ticket must contain a written specification by the officer of the bus line number, date, boarding and destination points, signature, badge number and name of municipality, when presented in lieu of fare. The last three items may be indorsed in advance, the others only when boarding the bus. No individual who ever used such tickets was offered as a witness, nor any Public Service representative to testify as to whether or not in practice bus operators permitted uniformed policemen to ride without them, or exacted compliance with the conditions on the tickets from those submitting them.
Respondent also placed in evidence a list of some 57 police officers prepared by the previous chief of police January 6, 1956 and identified as those "to whom Police Pass Books may be issued." These persons were almost all non-uniformed personnel, "principally detectives, people who have special assignments."
Early in his cross-examination Murphy testified: "Q. Isn't it true that a police officer in uniform rides free on the buses (adding, 'at any time in uniform')? A. I have no knowledge of it. It is possible they do it, but I have no proof of it." When asked about the practice in the early days of his tenure on the force in the 1920's, he said "at no time" did he pay any ...