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O''Brien v. First Camden National Bank & Trust Co.

Decided: June 13, 1961.


Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d.


Petitioner Anna E. O'Brien seeks to set aside a judgment in the County Court based on an opinion reported at 64 N.J. Super. 127. Said judgment, dismissing her dependency claim petition, reversed a judgment in the Workmen's Compensation Division which had awarded her compensation for the death of her husband Joseph O'Brien. His death on September 11, 1958 resulted from injuries sustained two days earlier when he was struck by an automobile while he was walking across East Browning Lane, a public highway in the Borough of Bellmawr.

The sole question to be resolved on this appeal is whether the fatal accident arose out of and in the course

of O'Brien's employment with respondent, First Camden National Bank & Trust Company; specifically, whether, under the circumstances of this case, decedent's death might be deemed compensable on one of the following theories advanced by petitioner: (a) that decedent when fatally injured was engaged in performing a "special service" for respondent; (b) that he was then engaged in an activity encompassed by his regular daily employment; (c) that at the time he was engaged in the accomplishment of a "dual purpose," including one primarily in the interest of the bank; or (d) that recovery was justified on the "positional risk" doctrine or the "if but for the employment" doctrine, citing Olivera v. Hatco Chemical Co. , 55 N.J. Super. 336 (App. Div. 1959), certification denied 30 N.J. 557 (1959).

Respondent asserts that none of the foregoing contentions is justified by the evidence and that the County Court properly denied petitioner recovery. The fatal accident, asserts respondent, occurred while decedent was en route from his home to the place where his daily work began and hence was noncompensable.

The facts are not in dispute. On August 4, 1958 respondent, having its main office at Camden, hired O'Brien to be a custodian or guard at its newly constructed branch bank located at the northwest corner of Black Horse Pike and Browning Road in the Borough of Bellmawr. The branch was actually opened to the public for business on August 14, 1958.

From August 4 to August 14, with the exception next hereinafter mentioned, O'Brien reported for work daily at 8:00 A.M. at the branch bank where he performed general janitorial duties while the work incident to the interior decoration of the building, preparatory to its opening, was being completed. Shortly before August 14 decedent, at respondent's direction, went to its main office where, for a day or two, he received orientation and instruction with reference to his prospective duties as guard and custodian.

From the time of his employment to the date of his death decedent lived at his son's home at Creek Road, Bellmawr, located six blocks west of the site of the branch bank.

As a result of conferences between respondent's manager and the chief of police of the Borough of Bellmawr, it was arranged for "security reasons" that on each morning commencing August 14 O'Brien was initially to go to the police station located on the north side of East Browning Lane, about 500 feet east of the branch bank building, where a police officer duly assigned would join him and accompany him to the bank. Pursuant to that arrangement, decedent's son, as an accommodation to his father, transported him each work day to a point on the south side of East Browning Lane directly opposite the police station. Decedent would alight from his son's car, cross the road to the station and await the arrival of a police car whose driver would be summoned by radio. The police-operated vehicle would then transport decedent to the bank where, in the presence of the police officer, he would unlock the bank door and enter the building. That procedure was followed up to the day of the accident and thereafter continued by another employee of respondent who took decedent's place.

At about 7:55 A.M. on September 9, the morning of the fatal accident, decedent, as above stated, alighted from his son's car opposite the police station and, as he was crossing the road to go to the station, was struck by an automobile.

Petitioner concedes, as expressed in her counsel's brief, "that ordinarily" when an employee is injured "on his way" to or from "his regular place of employment" such "injury is not work-connected." She contends, however, that decisions so holding are not here applicable. She asserts that the accident, happening under the circumstances above outlined, should, under one of the aforesaid theories advanced by her, be deemed to have arisen out of and in the course of her husband's ...

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