Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
[86 NJSuper Page 101] This appeal involves the right to compensation of a resident employee who was continuously on
call and was injured off the premises while returning from posting a letter. The Workmen's Compensation Division dismissed the claim petition on the ground that the accident did not arise out of and in the course of the employment. On appeal, the County Court reversed and remanded the cause to the Division for the fixing of an award of compensation. This was done and, upon return of the award to the County Court, the judgment here under appeal was entered in petitioner's favor.
There is no controversy as to the nature or extent of disability, the basic issue being the compensability of the accident sustained by the employee. The facts are undisputed; they are based on petitioner's unchallenged testimony.
Petitioner is a non-English speaking farm laborer who had to testify through an interpreter. He had come from Puerto Rico to work on respondent's farm in Springfield, N.J., and had been in his employ for about 4 1/2 months prior to the accident. The employer furnished petitioner with living quarters as part of his weekly wage. Respondent's farm and the dwelling where petitioner lived were located immediately adjoining the eastbound lane of Route 22 at Springfield.
Petitioner was on call 24 hours a day. He testified: "I had to go to work any time they call me, either night or day."
The accident happened on Sunday evening, August 28, 1960. Petitioner had worked until 2 P.M. and then returned to his quarters. It was his custom to mail a letter every Sunday evening to his wife and children back in Puerto Rico, and he would deposit it in the nearest mailbox, located at the corner of Hillside and Springfield Avenues in Springfield. After supper on the Sunday evening in question petitioner wrote his usual letter and then went out to post it. He followed his regular route to the mailbox, crossing the eastbound lane of Route 22 in front of his dwelling to the center island, then crossing the westbound lane to the junction of the highway and Hillside Avenue, and then up Hillside to its intersection with Springfield Avenue. After mailing the letter he proceeded to retrace his steps homeward. As he was crossing
the eastbound lane of Route 22, and just before reaching the gravelled shoulder in front of his dwelling, he was struck by an automobile and injured.
There was an RFD mailbox on the same side of Route 22 as the dwelling, but it was not available to petitioner because it was kept locked and he had no key to it. Respondent provided no other mailing facility, so that petitioner had to use the box at Hillside and Springfield Avenues. To reach it he had to cross Route 22 or walk a distance of some 0.7 of a mile along the easterly side of the highway to an overhead bridge crossing Route 22 to a street, and then walk along that street an additional 0.3 of a mile to the mailbox.
The compensation judge dismissed the claim petition for the reasons that what petitioner was doing at the time of the accident was purely personal since he was "not engaged in pursuing any activity required or contemplated by the parties in connection with or in furtherance of the contract of employment"; there was no mutual benefit involved in the case, and what petitioner was doing was "not even within the area of a minor deviation as referred to * * * in Secor v. Penn Service Garage, 19 N.J. 315 (1955)." He further found that the doctrine of positional risk did not apply since petitioner was on a personal errand at the time of the accident.
On appeal the county judge concluded that as a resident employee on call any hour of the day or night, petitioner must be considered as having been continually in the course of his employment. His temporary departure from the farm dwelling for the purpose of mailing a letter was an insubstantial deviation. Accordingly, the injury he suffered arose out of and in the course of his employment. We agree.
The language of the Compensation Act, R.S. 34:15-1, that an employee injured "by accident arising out of and in the course of his employment" shall receive compensation therefor from his employer, provided the employee was himself not willfully negligent, has been defined and applied with increasing liberality. An accident arises ...