Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
This is a workmen's compensation case. The Deputy Director dismissed the employee's claim petition. He found that the accident occurred in the course of the employment, but concluded that it did not arise out of the employment. The Essex County Court affirmed the dismissal of the petition. On this appeal from the County Court judgment the sole issue is whether the accident arose out of and in the course of the employment, as required by R.S. 34:15-7.
The facts are not in dispute. On October 3, 1958, the date of the accident, the petitioner was an employee of the respondent. He habitually rode to and from work with several co-employees as a member of a car pool. The respondent provided a parking lot adjoining its building for the parking of cars by its employees. On the day in question the automobile of one Willie Alexander, in which car petitioner rode, was parked in this lot.
Catherine Seremba, a co-employee and member of petitioner's car pool, asked petitioner to carry out of the building in which they worked and place in the automobile a can discarded by respondent, which she intended to take home for use as a garbage receptacle. Catherine had received permission from respondent to take the can. Similar permission
had been previously granted to other employees to remove such discarded cans for personal use. Petitioner had promised to take the can out to the car at the 10:30 A.M. coffee break, but forgot to do so. Later he remembered the can and then planned to take it out at lunch time. But he again forgot. When he quit work about 5:30 P.M., he left the building without the can, and went into the parking lot, where he entered Alexander's car, while waiting for his co-employees to arrive. Upon seeing Catherine approaching, he remembered his unkept promise and immediately started back to respondent's building to get the can.
While en route back from the car to the building, petitioner struck his right foot against a 4 x 4 beam, which was placed on the parking lot by the respondent to prevent car wheels from striking the respondent's building. Despite his injury, he continued on into the building, obtained the can and brought it back to the car.
Petitioner thought that he had merely sprained his instep. But the next morning he went to the hospital, where X-rays disclosed a broken bone and he was placed on crutches. He then went from the hospital to the factory and reported the accident. Further hospital and medical treatments became necessary and petitioner was out of work for about eight weeks. Two reports by Dr. Sidney Keats, received in evidence without objection, indicate his permanent disability to be 20% of the right foot. Petitioner's wages were $70.80 a week.
This court reviewed a somewhat analogous situation in Buerkle v. United Parcel Service , 26 N.J. Super. 404 (App. Div. 1953). In that case, the employee had similarly left the employer's building at the end of the work day and had gone to the parking lot maintained by the employer for the use of the employees. When he arrived at the lot he learned that the car of his fellow employee, Doherty, in which car he was to be driven home, would not start because the battery was dead. Buerkle then volunteered to go back into the building from which he had just come to borrow a
battery booster from one of the employer's garage mechanics. He did so, and while walking into the parking lot toward the disabled car, he slipped on ice, fell, and was injured when the battery booster dropped on his left hand. His claim was held compensable.
The Buerkle case expressly rejected the rule of Levengood v. New York Shipbuilding Corp. , 24 N.J. Misc. 273, 48 A. 2 d 570 (W.C.B. 1946), in which the Workmen's Compensation Bureau denied compensation to an employee injured while changing a tire on his car in the employer-maintained parking lot. Levengood held that the employee had embarked on a personal venture for his sole benefit, and in doing so, terminated the relationship of employer-employee and was on his own.
The respondent contends that the Buerkle case is distinguishable. It argues that there the employee returned to the building to obtain the battery charger "to enable himself and his driver to depart from the employer's parking lot." It concedes that such an act, necessary to departure, arises out of the employment. But yet this court in Buerkle cited McCrae v. Eastern Aircraft , 137 N.J.L. 244 (Sup. Ct. 1948), as authority for the conclusion that, if an employee is injured while originally walking from the building where he works toward a car in the employer-maintained parking lot, his right to workmen's compensation is clear. It then posed the question: "Suppose he had forgotten his hat and returned for it? Would a fall on the way back to the car following the trip to retrieve it require a different result?" Judge (now Justice) Francis, speaking for the court answered: "We think not." (26 N.J. Super. , at p. 407.) Compensability for an employee's injury on an employer's parking lot in the course of a return trip from the lot to the building where he ...