For the prosecutrix, Samuel J. Kaufman.
For the respondent, Edwin Joseph O'Brien.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. On August 4th, 1925, Michael Belyus, an employe of Wilkinson, Gaddis & Company, while upon his employer's premises, suffered burns which resulted in his death two days later. The jurisdiction of the workmen's compensation bureau was invoked by his dependents; and it was there determined that his death resulted from an accident which arose out of and in the course of his employment. The compensation provided by the act was awarded. Pamph. L. 1911, p. 134. On appeal, the determination of the Essex Common Pleas was that the prosecutrix had not sustained the burden of proving an injury by accident arising out of the employment. This is the decisive question.
These are the circumstances: The deceased had been employed as a stableman by the defendant corporation for upwards of thirty years. Some four months before the fatal accident befell him, the corporation's horse-drawn equipment was supplanted by motor vehicles. Decedent was unfitted for service in the new scheme of things. He was illiterate and without mechanical knowledge. His had been the menial service of a stableman; and while it may be true that there was little for a man of his limited capacity to do after this change was effected, he was continued in the company's employ. It may well be that the principal consideration for
his retention was a sense of gratitude for long and faithful service. The fact is, however, he was expected to do the things of which he was capable. And being naturally desirous of rendering service for the weekly stipend paid to him, he undertook with the knowledge and acquiescence of his employer, to render such services as were within his power. For instance, the employer admits that he was on occasions called upon to cleanse the chassis of a motor vehicle, using a mixture of gasoline and kerosene provided for that purpose. On the morning of the fatal day, he reported for work at seven-fifteen A.M., as usual. He was seen at that hour, or shortly thereafter, in the garage. Between nine-thirty and ten A.M., he was observed in the stable, directly across the street, enveloped in flames. A pail was found inside the building, about one hundred feet from the doorway, containing a burning liquid that was unquestionably gasoline, or a mixture of that liquid and kerosene. The pail was close to a brick wall enclosing the furnace room. The proofs show that the furnace was not then in use; nor was anything discovered in the room that would account for the ignition of the content of the pail.
There was no evidence tending to show what decedent was doing at the time his clothing caught fire, except that given by one Stewart, then an employe of the defendant corporation, who testified that decedent, while "in flames and very much excited," said that "he was washing a pair of pants." A leading question put to the witness brought the reply that it was "the little boy's pants." The deceased was inside the stable when he found him in flames, coming "from out of another room." The witness called to another employe, one Helwig, for assistance; and it is significant that, while he was certain he and Helwig reached decedent at "almost approximately the same time," he would not say that Helwig was present when decedent made the asserted statement. He reiterated that, at this time, the deceased was unquestionably in severe pain -- he "just merely groaned" -- and that he (the witness) "was very much excited." He did not see the pail of burning liquid; it was in the room whence decedent came.
Helwig, although called as a witness by his employer, as well as by prosecutrix, gave no testimony relating to his ministration of aid to the deceased; nor did he testify to any statement made by the decedent.
There was no testimony tending to corroborate the claim that decedent, at the time in question, was engaged in business of his own, i.e., the washing of his boy's pants. No remnant of such a garment was found; and decedent's wife testified that her husband was not in possession of one belonging to their boy, who was then fourteen years of age. The fire in the pail was extinguished by employes of the defendant corporation. Helwig, called as a witness by the prosecutrix, described decedent as a "stableman." In reply to the question as to whether decedent made any statement after he reached him, Helwig said, "no statement at all, but all he was doing was groaning, he told me to get something to put on to cool him off, I put him in there to get his clothes off, such as he had on." Helwig was the foreman of the garage. As the deputy commissioner observed, neither the buckle nor a button was found to indicate that decedent was engaged in cleaning the mentioned article of wearing apparel when his clothes became ignited; there was no tangible ...