On appeal from the former New Jersey Supreme Court.
For reversal: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, and Ackerson. For affirmance: None. The opinion of the court was delivered by Wachenfeld, J.
The petition here in a Workmen's Compensation case was dismissed by the Bureau. The dismissal was sustained by the Common Pleas and the former Supreme Court. The facts are not disputed and the sole issue is whether the court below erred in its conclusion that the accident did not arise out of appellant's employment.
On July 27, 1944 Sanders was employed as a maintenance mechanic by the Jarka Company, a stevedoring concern operating
in Port Newark, New Jersey. While backing up one of the corporation trucks, he struck a coal truck belonging to the U.S. Government and operated by one of its civilian employees. Acting pursuant to specific instructions of his employer, Sanders went to the other vehicle to obtain its registration and the driver's license number. He had given his own and was taking down the number of the coal truck when someone identified only as "Willie," who presumably was a helper on the Government truck, called down to the appellant demanding to know why he wanted the number of the coal truck since he had backed into them. Appellant ignored him but Willie leaped from the truck and repeated his question. Appellant replied "it was orders" and that he was instructed to do so in case of accident. Willie then began to curse Sanders, who admits making an offensive reply, and "profanity passed back and forth." Thereupon Rice, appellant's boss, intervened and said, "Let's forget it. Let's go." Sanders immediately heeded his advice and returned to the truck and seated himself next to Rice in the cab, at the same time discarding a stick which someone had thrust in his hands. Just as Rice started the truck, Willie picked up a Coca Cola bottle, opened the truck door next to appellant and seized him by the foot. Despite Rice's attempt to hold appellant in the cab, Willie yanked Sanders out and smashed him over the head with the bottle, causing substantial temporary and permanent injuries.
The facts, which are not in dispute, admittedly establish an "accident" arising "in the course of" employment. The sole question in controversy is whether the accident arose "out of" employment as required by R.S. 34:15-7 et seq.
An accident arises "out of" employment when it in some manner is due to a risk reasonably incident to the employment. It was clearly defined in Bryant, Admx., v. Fissell, 84 N.J.L. 72 (Sup. Ct. 1913):
"We conclude, therefore, that an accident arises 'out of' the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it. * * *
"A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * *
"And a risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment."
In asking for the license number of the other truck driver Sanders was acting pursuant to his express duties of employment. His action in this regard was an integral part of what subsequently happened. This case does not fall within the rule holding that an assault committed by an unknown assailant for no apparent reason cannot be considered incidental to employment and therefore not arising out of employment. Schmoll v. Weisbrod & Hess Brewing Co., 89 N.J.L. 150 (Sup. Ct. 1916); Giles v. W.E. Beverage Corp., 133 N.J.L. ...