For the prosecutor, Kalisch & Kalisch (Isidor Kalisch, of counsel).
For the respondents, Abram A. Lebson.
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. R.S. 34:15-7, et seq. Concededly, the fatal shooting of David H. Giles, employed by prosecutor, was, in the circumstances of this case, the result of an "accident" within the meaning of our Workmen's Compensation Act, supra, which arose "in the course of his employment." The question for decision is whether respondents carried their burden of establishing, by a "preponderance of (the) probabilities according to the experience of mankind," that the "accident" was one which also arose "out of" the employment. Cf. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533; 6 A.2d 213; Kramerman v. Simon, 131 N.J.L. 250; 36 A.2d 132.
In the Bureau the question was answered in the negative and petitioners' (respondents here) claim petition was dismissed accordingly.
In the Bergen County Court of Common Pleas, the question was answered in the affirmative. The judgment of the Bureau was reversed and petitioners, Ruth M. Giles, wife of David H. Giles, and June Giles, their infant child, were adjudged to be entitled to their asserted claim to compensation. To review the adjudication of the Pleas, prosecutor was allowed a writ of certiorari.
Our independent review of the facts and law (Stetser v. American Stores Co., 124 N.J.L. 228; 11 A.2d 51; Calicchio v. Jersey City Stock Yards Co., 125 N.J.L. 112, 118; 14 A.2d 465) leads us to the conclusion that the judgment in the Bureau was correct.
The pertinent facts leading up to and including the shooting of Giles are free from substantial dispute. Prosecutor, W.E. Beverage Corp., a corporation of New Jersey, respondent below, operates a package goods store for the sale of wine, liquor, beer, &c., at 107 William Street, Englewood, New Jersey. The locale is on the border of the city and is characterized as the "Texas" section of that city. Giles had been employed by prosecutor as manager of its store for about four years at the wage of $100 a week. As manager, he was obliged, among his many duties, to check and account for the receipts at the close of each business day and arrange for the safe keeping of the moneys.
On October 29th, 1942, about 11:45 P.M., just about when there is a change in the shifts of the policemen patrolling the beat on which the store is located, and while Giles was in the process of checking the receipts for the day, two undisguised white men entered the store and immediately, without saying a word, began firing their pistols at Giles. Two bullets entered through the back of his head and four through his body. He died instantly. Edward Hampton, one of the two young men employed in the store, was struck by a bullet apparently aimed at Giles, while Edward was ...