For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Hall and Haneman. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (concurring). Hall and Haneman, JJ. (dissenting). Chief Justice Weintraub and Justice Jacobs concurring in result.
In this workmen's compensation case the issue is whether decedent's fatal accident arose out of and in the course of his employment. The Deputy Director made an award, the County Court reversed, 64 N.J. Super. 127 (1960), and was affirmed by the Appellate Division, 68 N.J. Super. 177 (1961). We granted certification, 36 N.J. 135 (1961).
On August 4, 1958, decedent, Joseph O'Brien, was engaged as a bank guard and custodian by First Camden National Bank & Trust Company. He was employed to work at a newly constructed branch located at the northwest corner of Black Horse Pike and Browning Road in the Borough of Bellmawr. The bank was opened to the public for business
on August 14, 1958. From August 4 to 14, O'Brien reported for work at 8 A.M., quite obviously the time fixed for the beginning of his day, and did odd jobs and janitorial work while awaiting the formal opening of the bank. Shortly before August 14 he was sent to the employer's main office where, for a day or two, he received instruction about his functions as guard and custodian, the uniform he was to wear and the gun he was to carry.
Part of O'Brien's obligation, at least from August 14 on, was to open the bank at 8 A.M. He was given possession of the key in order to do so. At some time before August 14, just when does not appear, his superior told him that instead of coming to the bank first he should go to borough police headquarters, where an officer in a radio patrol car would be designated to drive him, or go with him to the bank, and stay with him while he opened up and made certain that everything was safe. This arrangement resulted from conferences between the bank manager and the chief of police. They agreed that the opening time when O'Brien would be alone was a "risky" period and such a plan was advisable for security reasons. This meant, of course, that if the bank was to be opened on the hour, O'Brien's work day had to begin early enough so that the new incidental mission could be accomplished before that time.
Why it was deemed necessary to send O'Brien to police headquarters for the radio car and the officer, rather than simply have that officer or some other one meet him at the bank at 8 A.M. each day, was not explained. Although there was some discrepancy in the testimony, the Deputy Director in his determination said police headquarters is about 200 feet east of the bank. In any event, it is located a short distance away on Browning Road on the same side of the street as the bank. The police chief testified the arrangement was a "preliminary" one. It may have been considered an experimental procedure at its inception because of the imminence of the bank opening and the newness
of its operation. No specific proof was adduced on the subject to contradict the chief's statement. Since, for purposes of this case, we are concerned with the situation as of August 14 and thereafter until O'Brien's fatal accident on September 9, 26 days later, it seems just to consider the security plan as it was described, i.e., a preliminary one. It is so referred to in the Deputy Director's findings.
O'Brien lived on Creek Road, Bellmawr, some distance west of Black Horse Pike. The bank is located on the northwest corner of Browning Road and Black Horse Pike. Decedent resided with his son, who drove him to work in the morning. Prior to inauguration of the security arrangement, the son proceeded in an easterly direction to a point opposite the bank and dropped his father there in time to report for duty at 8 A.M. Beginning with August 14, however, the son did not stop on reaching the bank; he continued east on Browning Road the short distance to police headquarters, at which point his father alighted and walked across the street. When the police escort joined him, O'Brien retraced the distance to the bank and opened the door under the watchful eye of his companion.
On September 9, 1958, at about 7:55 A.M., decedent's son drove him past the bank and, as usual, dropped him opposite police headquarters. While crossing the street he was struck by an automobile and suffered fatal injuries.
Petitioner, decedent's widow, sought workmen's compensation against the bank on the ground that her husband had come to his death as the result of an accident which arose out of and in the course of his employment. The claim was resisted on the theory that O'Brien was just coming to work when injured; that his day of service to the employer had not yet begun, and would not begin until he actually stepped from the public sidewalk onto the police headquarters premises. The Deputy Director ...