For the petitioner-respondent, A. Michael Lepore (Charles Wm. Kappes, of counsel).
For the respondent-prosecutor, Nugent & Rollenhagen (Frederick M. Rollenhagen, of counsel).
Before Justices Bodine and Jacobs.
The opinion of the court was delivered by
JACOBS, J. This matter is before the court pursuant to a writ of certiorari to review a judgment of the Hudson County Court of Common Pleas reversing an order of dismissal entered by the Workmen's Compensation Bureau.
The petitioner-respondent, Robert L. Grant, was employed by the respondent-prosecutor, Grant Casket Co., as salesman and secretary. His duties included the supervision of employees and the conduct of labor-management relations with union representatives. On October 7th, 1940, he conferred with Fred Haanken, a vice-president of the union, with respect
to the proposed lay-off of a night man and the transfer of his duties to a day man. He left Haanken and proceeded to the upper floor where he was continuing discussion of the matter with Joe Giordano, the shop steward. He was followed by Haanken who, without warning, struck a blow on his right cheek which dazed him and caused him to seek medical attention. The medical examination indicated that he had sustained contusions of the cheek bone and a slight concussion of the brain. Thereafter he complained of headaches and dizziness and within the next year was treated on eleven occasions by Dr. Bender and on twenty-four occasions by Dr. Klein.
In January, 1941, the petitioner-respondent filed his claim for compensation in the Workmen's Compensation Bureau and hearings thereon were held in September and October, 1941. At the close of the petitioner-respondent's case, the Deputy Commissioner granted a motion to dismiss the petition on the ground that the petitioner had not sustained the burden of establishing that there had been an accident arising out of the employment. An appeal was thereupon taken to the Hudson County Court of Common Pleas and a hearing date was fixed by Common Pleas Judge Erwin. There was considerable delay, evidently due to Judge Erwin's illness and death, and in 1946, application was made to Common Pleas Judge Ziegener for an order remanding the case to the Workmen's Compensation Bureau for the taking of "additional proofs for the clarification of the record" and for an order fixing a date for the hearing of the appeal. This application was granted and additional proofs were taken before the Deputy Commissioner who found that his original judgment of November 7th, 1941, was res judicata and entered an order dated July 11th, 1946, dismissing the proceedings. This dismissal was reversed by the Court of Common Pleas with a finding in favor of the petitioner and directions that the Bureau fix the award to which the petitioner is entitled. The Deputy Commissioner then made an award of 5% of total which was increased by the Court of Common Pleas to 15% of total. Prosecutor thereupon obtained its writ of certiorari to review the judgment in the Court of Common Pleas awarding
15% total disability and in support of its writ urges the following:
1. That the action of the Court of Common Pleas in remanding the cause to the Bureau for the purpose of taking additional testimony was improper, and
2. That the evidence did not establish that there was an accident arising out of the employment which resulted in injuries to the petitioner-respondent entitling him to ...