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Bubis v. Flockhardt Foundry Co.

New Jersey Supreme Court


Decided: April 29, 1938.

JOE BUBIS, PETITIONER-PROSECUTOR, APPELLEE,
v.
FLOCKHARDT FOUNDRY COMPANY, RESPONDENT-DEFENDANT, APPELLANT

On appeal from the Supreme Court, whose opinion is reported in 119 N.J.L. 136.

For the respondent-appellant, Edward R. McGlynn (Joseph Weintraub, on the brief).

For the prosecutor-appellee, Perry E. Belfatto (John A. Laird, of counsel).

[120 NJL Page 177]

PER CURIAM.

This appeal brings up the judgment of the Supreme Court reversing the judgment of the Common Pleas in a workmen's compensation case, in which the judge of the Pleas in dismissing the petition reversed the bureau and held that in taking the added risk involved by the use of gasoline to kindle a fire with which to warm himself, the act of the employe was not a reasonable incident to his employment and was not contemplated by it and was entirely outside its scope and that the accident caused by the explosion of the gasoline did not arise out of the employment.

The facts of the case are stated in the opinion of Mr. Justice Bodine, reported in 119 N.J.L. 136, &c., wherein, speaking for the Supreme Court he held that the mere fact that the employe chose gasoline rather than some other substance to facilitate combustion was no reason to bar a recovery; that the injury was due to a fortuitous event which

[120 NJL Page 178]

might have been expected but which might never happen, and that the accident therefore arose out of and in the course of the employment.

The case of Kolaszynski v. Klie, 91 N.J.L. 37, cited by Mr. Justice Bodine in his opinion, is substantially on all fours with the instant case. We are in full accord with the reasoning and results reached by the Supreme Court in that case and consider that the same is dispositive of the issues involved in the instant case.

The judgment is affirmed.

For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, DONGES, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 11.

For reversal -- None.

19380429


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