For the prosecutor, Elias G. Willman and Joseph Harrison.
For the respondent, Arthur T. Vanderbilt and G. Dixon Speakman.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. A judgment for the employer and against the workman entered in the Essex Common Pleas in a compensation
case affirming a determination of the Compensation Bureau is before us for review. The evidence is in sharp conflict on vital points, but this much is clear: The prosecutor, John Reis, was employed by the defendant, Breeze Corporations, Inc. His job was to dip metal shelves into a tank of paint, place them on trucks which hung from an overhead track and push them into an oven where the paint was dried and baked. After the shelving was baked it was passed to a fellow workman, one Pruchnicki, to be riveted. The painting, baking and riveting were done on a balcony within a large room or factory space occupied, under lease, by the employer in its business of manufacturing library shelves. The ground floor measured about 300 feet in length by 200 in width. The balcony occupied by the painting and riveting shop was one of two inside balconies, was about forty feet wide and was reached by a stairway from the ground floor. There was also a small balcony, where the accident occurred, measuring about five by eighteen feet on the outer side of the wall from the paint shop. There was an opening in the wall not large enough for an average-size man to pass through without stooping, and the opening was closed by a door which the employer undertook to keep padlocked from the inside -- unsuccessfully because the hasp was repeatedly pried off. Neither Reis nor his fellow workman, Pruchnicki, had duties on that outside balcony; but both of them were there at about 7:30 in the morning of October 6th, 1939. Their shift had begun at one o'clock in the morning and they were still within their hours of labor. Both men fell therefrom dislodging a unit of the rail, Pruchnicki in Reis' embrace, receiving injuries for which Reis seeks to recover in this, and Pruchnicki in another, action.
Reis' story is that he became heated from his work, went to the outer balcony, as it is said he and others frequently did, to get a breath of air, leaned against the balcony railing, lost his balance and, grabbing hold of Pruchnicki to whom he was talking, fell. There is testimony from others to like effect. But the Deputy Commissioner in his determination of facts and rule for judgment bluntly complains of
the attitude and demeanor of the petitioner and several of his witnesses and expresses doubt as to their credibility. A trial court has the opportunity, which an appellate tribunal has not, to observe the appearance and demeanor of the witnesses and a certification from below in that respect is entitled to consideration, Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 538, particularly when the transcript of the testimony shows ground for suspicion.
Even in the petitioner's proofs there is support for a finding that the visits by the men to the outside balcony were surreptitious and against the known instructions of the employer. Martin Kwaitkowski, a fellow workman of and a witness for the petitioner, testified on direct examination: "When the oven was on schedule and I finished my shelves, I took a sneak out to get a little fresh air. * * * That was the reason Mr. Holland laid me off, because he found out our trick; * * *. They didn't want it worked that way, they wanted mass production. * * * Of course I did sneak out, I was being paid for that hour, so really I did sneak; it is not a lie; it is the truth. I did sneak out because if the boss saw me loafing he would say something right away, but he wouldn't say anything every time because I was away from the machine, that machine was still going, that was an automatic riveter, but if he saw me loafing he would catch on my trick. But I am a working man I do the easiest way I can; if I can keep up with the production that is my luck." Again, it is difficult to reconcile the manner of the accident, as related by Reis, with the undisputed facts. Reis says that he was standing with his back to the railing talking with Pruchnicki, that he leaned backward against the railing, lost his balance, toppled over backwards and, as he felt himself going, grabbed hold of Pruchnicki and that the two went down together; but the railing was after the fashion of a gate which fitted down in a socket and could only be removed by an upward thrust.
Factually, Deputy Commissioner Wegner found in the Bureau and Judge Flannagan found on the appeal to the Pleas that the outside balcony was not under the control of [129 NJL Page 141] the employer, that Reis and his fellow workmen had been forbidden by the employer to use the balcony, that the use thereof at the time of the accident was in violation of orders which limited the sphere of the petitioner's employment and that such prohibition was grounded in sound business reasons. It was said in Pearson v. Armstrong Cork Co., 6 N.J. Mis. R. 976, that "Where two independent and distinct tribunals such as these [viz., the Workmen's Compensation Bureau and the Court of Common Pleas] have examined the facts and heard the testimony we do not think that a conclusion so reached should be lightly disturbed by this court upon a mere inspection of the written word, where there is ample support in the testimony for the conclusion so reached." Practically the same language was used in Mountain Ice Co. v. Durkin, 6 Id. 1111, affirmed by the Court of Errors and Appeals on the opinion below, 105 N.J.L. 636; followed in Bollman v. McGovern, 8 N.J. Mis. R. 454; Berman v. Levenstein, 9 Id. 378; affirmed, 121 N.J.L. 139; Yoshida v. Nichols, 12 N.J. Mis. R. 197; Faley v. Trenton Malleable Iron Co., 13 Id. 286; affirmed, 115 N.J.L. 579; Voight v. McEwan Bros., 13 N.J. Mis. R. 587; affirmed on the opinion below, 116 N.J.L. 218; Matthews Construction Co. v. Ranallo, 13 N.J. Mis. R. 878; affirmed on the opinion below, 117 N.J.L. 148; McMillin v. Calco Chemical Co., 15 N.J. Mis. R. 68; Mong v. Samuel Dolinsky & Co., 119 N.J.L. 547. In Richmond v. Scheidell, 8 N.J. Mis. R. 468, the rule was followed in the light of chapter 229, Pamph. L. 1921, amending paragraph 19 of the Workmen's Compensation Act (now R.S. 34:15-66), and section 11 of the Certiorari Act, 1 Comp. Stat., p. ...