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O''Regan v. New Jersey Hardware Co.

Decided: April 12, 1962.


Determination of facts and rule for judgment.

Barger, J.c.c.


This is a workmen's compensation appeal. There was a dependency award to the widow and children of the deceased employee. The respondent-employer appeals.

The parties hereinafter will be referred to as petitioner, being the widow of the deceased employee; respondent, being the employer; and the deceased, being the employee.

The essential facts surrounding the happening of the accident are not in dispute. The issue is whether the accident resulting in the death of the employee, Dermott F. O'Regan, arose out of and occurred in the course of decedent's employment with the respondent.

The deceased is survived by his widow, petitioner Mary O'Regan, born August 25, 1910; a son, Dennis M. O'Regan, born February 16, 1949; a son, Sean J. O'Regan, born February 20, 1947; and a daughter, Noreen M. O'Regan, born July 20, 1945.

On April 25, 1959 the deceased was, and had been for about seven years prior thereto, employed by the New Jersey Hardware Company, respondent herein, as a salesman and estimator. His wages are stipulated to have been $115 per week. In addition thereto, decedent received certain fringe benefits as well as reimbursement from time to time for certain motor vehicle expenses and certain expenses incurred

in entertaining customers at lunch. The last-mentioned reimbursement was for meals and alcoholic beverages furnished to customers in ordinary business good-will entertainment.

On April 25, 1959 Mr. Robert M. Bost, president of Damon G. Douglas Company of Newark, New Jersey, building contractors, and a valued customer of the respondent over a period of about three years, arrived just before 5 P.M. at the place of business of respondent, 10-12 Bleecker Street, Newark, New Jersey. Mr. Bost testified that he came to the business premises of respondent for the purpose of purchasing certain hardware or to expedite a job or to discuss a job. He was not certain of the exact nature of his visit except that it was for business purposes. On occasion the business of his company was transacted with the deceased. Mr. Albert G. W. Martenson, secretary and treasurer of respondent, was in the premises at the time of this business visit. Mr. Martenson was also engaged in selling and estimating. In addition to these men, the deceased and possibly other employees of the respondent were present. The witnesses were not certain as to which other employees were present. However, the evidence does indicate that Mr. Martenson and the deceased were present. It was a Friday night and, as indicated, close to 5 P.M., the usual closing time for the business of the respondent. After transacting some business with Mr. Bost, Mr. Martenson inquired of Mr. Bost as to whether he was stopping at Fucci's Restaurant located on Central Avenue, Newark, New Jersey, which is a short distance away from the place of business of respondent. After being informed that Mr. Bost intended to stop there, Mr. Martenson suggested they have a drink together. It is noted at this point that Mr. Bost had been the guest of Mr. Martenson and the deceased at lunch on various occasions. However, this apparently was the first evening meeting under the circumstances indicated. Mr. Bost agreed to meet Mr. Martenson at the restaurant. The deceased, in the presence of Mr. Bost and

Mr. Martenson, said, "You can't leave me out." Mr. Martenson replied to this remark of the deceased, "No, come along." Thereafter, Mr. Martenson and the deceased walked to the restaurant, which is about a five-minute walk from the place of business of the respondent, and there met Mr. Bost. The conversation was general and was flavored with some business and some personal conversation of one purport or another. Each of the aforementioned persons bought a round of drinks, making three rounds in all. About 6 P.M., after having been in the restaurant for about one hour, they decided to leave. The testimony indicates that all of the persons concerned felt high but that no one was intoxicated. Upon leaving the premises and taking leave of each other they went their several ways. Mr. Martenson and the deceased walked to the parking area on the premises of the respondent where their vehicles were parked. They entered their vehicles and started for their respective homes. The deceased, who was living in Colonia, New Jersey at the time, drove off.

The normal working hours of the respondent were from 8 A.M. to 5 P.M., five days each week. It should be noted that it was unusual for anyone to work after 5 P.M., and unusual for an employee to work more than ...

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