On appeal from a judgment of the Superior Court, Appellate Division, whose opinion is reported at 65 N.J. Super. 311.
For affirmance on opinion below -- Chief Justice Weintraub, and Justices Jacobs, Francis and Schettino. For reversal -- Justices Proctor, Hall and Haneman. Weintraub, C.J. (concurring). Francis, J., joins in this opinion. Proctor, J. (dissenting). Weintraub, C.J., and Francis, J., concurring in result.
The judgment is affirmed for the reasons expressed in the opinion of Judge Kilkenny in the Appellate Division.
WEINTRAUB, C.J. (concurring).
I would affirm the judgment of the Appellate Division even if there were a deviation, but since I find none, I would affirm on the ground that petitioners did not depart from the course of their employment.
Doubtless because of the relatively remote location of respondent's place of business, the practice developed of furnishing transportation for its employees to and from work. The record shows respondent expressly authorized such transportation in some cases. Thus petitioner White was authorized to drive the truck to and from his home in Yardley, Pennsylvania, and was directed to take petitioner Green to and from Trenton where Green lived. Respondent's drivers regularly picked up other employees on the road.
On the day in question, White and Green, heading for home, came upon a coemployee, Lomax, who had missed the post bus and also the ride a third person usually gave him to his abode in Browns Mills. White undertook to take Lomax to Browns Mills and en route the accident occurred.
Respondent does not dispute or deny knowledge of the practice I have described, but says we should find it was limited to transportation along the routes the drivers would otherwise be pursuing. Browns Mills was not on the road White would regularly take to Yardley. Although the record shows Lomax had been driven home on some other occasions, respondent argues they were exceptional because on those occasions Lomax had worked to a late hour. Respondent offered no testimony that it in fact intended the restriction we are asked to find, and of course it at no time advised its drivers that transportation for coemployees must be so limited.
On these facts I cannot hold that White or Green departed from the course of employment. When an employer permits and indeed encourages a practice of furnishing transportation for employees to and from work, he should articulate a route limitation if he intends one. It is too much to expect an employee to find a restriction upon a careful analysis of prior events. Indeed, upon this record I am not satisfied that respondent in fact intended a restriction which it advances solely by way of argument and without the direct proof it alone could offer. At any rate an employer should expressly delineate the scope of employment if he wishes to hold the employee within one of several possible boundaries. When, as here, the employee reasonably and in good faith believes he is furthering his employment, he should not be adjudged to have strayed beyond it merely because someone could disagree with him.
A word about the drinking episode. It is not contended the injuries were due to intoxication and hence not compensable. The drinking is here relevant only upon the question whether petitioners were in the course of employment
at the time of the accident. When Lomax was picked up, the purpose was to take him home, and the accident occurred while the parties were pursuing that purpose. The liquor affair has the capacity to distract, but it is no more significant here than it would be if a trip on the usual route to Yardley were similarly interrupted prior to an accident, and I take it that in that setting, no one would suggest a stop for ...