Opinion
Submitted May 26, 1933 —
Decided September 27, 1933.
The husband of petitioner below was employed by the appellant company in a dual capacity. During certain hours he was to be at the factory of appellant, and was subject to call to go out and service oil burners installed by the company, and during his free time he was allowed to work for the company soliciting and obtaining service contracts on commission, using for that purpose the company's truck. On a certain day his hours at the factory were from six P.M. until midnight, and at four-thirty P.M. he told the service manager at the factory that he was going out to sell service contracts, and was told to go ahead, but to return at six o'clock. At about six fifty-five P.M., the company's truck, driven by petitioner's husband, while returning to the factory, was in a collision and from the effects of injuries received, the driver was fatally injured. Held, that the conclusion of the referee, in a hearing for compensation under the Workmen's Compensation act, that the decedent was fatally injured by an accident arising out of and in the course of his employment was adequately supported by the evidence.
On appeal from the Supreme Court, in which the following per curiam was filed:
"The petitioner is the widow of Granville Berry, an employe of the prosecutor corporation, who was killed on Saturday, March 7th, 1931, while driving one of the company's trucks. The truck came into collision with an automobile and Berry was injured so severely that he died in a few minutes.
"As to the foregoing facts there was no question whatever; the disputed question of fact was whether Berry was fatally injured by an accident arising out of and in the course of his employment. The referee, after hearing the evidence, decided the case at once in favor of the petitioner. The prosecutor argues that the petition should have been dismissed when petitioner rested her case, and should have been dismissed at the conclusion of the evidence. Motions in both aspects were made and denied.
"On a careful examination of the evidence we are of opinion that the conclusion reached by the referee was adequately supported thereby. The prosecutor corporation was engaged in the business of selling and servicing what are called in the testimony, silent automatic oil burners, and had put out a large number of these in Bergen county and vicinity. The factory and central office of the company seem to have been at Bogota opposite Hackensack. The deceased lived in Ridgefield Park. The terms of his employment were that at certain hours he should be at the factory; that he should be on call in the matter of going out to do servicing work without any particular restriction of hours; and that he had the privilege of selling service contracts at $30 apiece, good for a year, in his free time. For the purpose of doing this service work he had the use of one of the company's trucks, the company furnishing gasoline and oil, and he had the privilege of using this truck also in his free time for the purpose of negotiating service contracts for which he was paid a commission of $2 for every new contract obtained. There is a little obscurity in the testimony as to who paid the commission of $2 but we think there can be little doubt it came out of the $30 when the money was turned in.
"On Saturday, March 7th, Berry's hours at the factory were from six P.M. until midnight. At four-thirty P.M. he was at the factory and stated to Mr. Stevens, the service manager, that he was going out to sell service contracts. Stevens said: `Go ahead, but be back by six o'clock.'
"This was the last that was seen of Berry until the collision in which he met his death. At four-thirty P.M. he was on his own time. The testimony of the witness Frost whose employment was similar to that of Berry, was that they both left the factory in the truck about four or four-thirty and that Berry tried, without success, to sell a contract; that they then came back to Hackensack and had two drinks at a speakeasy, after which they got something to eat at a lunch wagon, or something of the kind; then Frost went home leaving Berry at the restaurant. The next fact appearing by the testimony is that at about six-fifty-five P.M., in Hasbrouck Heights, several miles south of Hackensack, there was a collision between the company's truck driven by Berry and going north and the automobile headed south, in which Berry was fatally injured. There is testimony to show that Berry had some papers in his pockets, but no contracts, and it was testified that, on examination of the locker in the truck, several bottles of whiskey were found therein. There is nothing to show who put the whiskey there or how long it had been there, and there is absolutely no evidence to indicate that Berry was intoxicated at the time. It is true that he was nearly an hour late for beginning work at the factory at six o'clock; but he was headed in the direction of the factory and driving the company's truck as he was privileged to do.
"It will have been observed that Berry was working in a dual capacity, or perhaps even in a triple capacity. At certain hours he was to be at the factory; at almost any time he was on call to go out and attend to service calls day or night; on his free time he was allowed to work for the company soliciting and obtaining service contracts on commission. It is clear, we think, that up to six o'clock Berry was entitled to the use of the company's truck for the purpose of soliciting service contracts. At that hour it was his duty to be back at the factory. He was late in getting back but was on his way thither. It was his duty to return to the factory and that is what he was doing when he was killed. Such being the conditions, we think that the decision of the referee that the deceased came to his death through an accident arising out of and in the course of his employment was adequately sustained by the evidence, and the judgment will accordingly be affirmed."
For the respondent-appellant, John A. Matthews.
For the petitioner-respondent, DeBaun Westervelt ( Jesse B. Leslie, of counsel).
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered in the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, CASE, BODINE, DONGES, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 13.
For reversal — None.