Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
The petitioner, widow of Paul Argroe, was denied an award of death benefits in the Workmen's Compensation Division. On the trial de novo in the County Court, judgment was entered in her favor and respondents appeal.
The essential facts are not in substantial dispute. Respondents operate a gasoline and service station in Morris Plains, New Jersey. Decedent commenced his employment there as a service station attendant on a part-time basis in February 1955 and became a full-time employee in April of that year. Thereafter his working hours were 8:00 A.M. until 6:00 P.M. He performed the usual duties of "pumping gas and lubricating and changing oil and things like that." However, because of the peculiar nature of respondents' business operation, his job encompassed other activities in behalf of his employer of a somewhat unusual nature. The
bulk of respondents' customers were employed in nearby plants and their cars were serviced at the station while they were at work. The volume of respondents' business was such that on busy days as many as 20 or 30 cars would be serviced and on other days as few as 10 or 12 cars. The business had been built up and maintained by an arrangement whereby the two partners and the decedent would drive to the various plants, pick up customers' vehicles and bring them to the station, leaving their own cars behind. Upon completion of the work they would then drive the customers' cars back to the plants at which they had been picked up and return to the station in their own vehicles. Respondents maintained three automobiles for this purpose. Neither at the time of the original hiring nor later when decedent's full-time employment commenced was there any discussion between the parties regarding the use of decedent's personal car which he drove to and from the station daily. However, as time went on a practice grew up where, by tacit consent, his car was used interchangeably with those of the respondents in the pickup and delivery service, both by himself and by his employers.
Shortly after the hiring, decedent was told by the partners that when business was slack he was at liberty to use respondents' facilities, including a hydraulic lift, in servicing his own vehicle. This privilege was extended at least in part because petitioner often stayed to help out after 6:00 P.M. for which services he received no additional compensation. The understandably informal nature of the employer-employee relationship and the incidents thereof are best illustrated by the following excerpts from the testimony of Carmen Marinaccio:
"Q. Now, would you explain to what extent Paul's vehicle was used; Paul Argroe's vehicle was used in this operation, if it was used? A. He used his car just like we used our own for picking up cars and maybe picking up parts in town, I guess that is about it.
Q. Did he ever use any other vehicle that was there? A. Yes.
Q. Did you or your brother ever use Paul's vehicle to make pick ups? A. We used it on several occasions.
Q. How about your brother Frank? A. I said he said he used it too.
Q. Did you ask Paul's permission before you used his vehicle? A. I think it was an understanding that -- I don't really recall whether I did ask him or not. Maybe I just took it for granted. I don't know whether I actually asked him or not, but it was understood ...