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Cole v. I. Lewis Cigar Mfg. Co.

Decided: October 17, 1949.


On appeal from the Superior Court, Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J.


The first question that demands our attention in this case is whether or not the appellant has a right to appeal to this court.

Thomas G. Cole, the petitioner's husband, was employed as a watchman in the appellant's factory in Newark on a 3 P.M. to 11 P.M. shift. On February 6, 1947, while making his last tour of inspection in the basement before being relieved, he was struck on the head with a pinch bar or similar instrument by an unknown colored man or men, the pay that he had received earlier in the day was stolen, and he was left bound hand and foot. Except for the pinch bar, that normally hung on the wall but which was found on the floor, nothing was disturbed in the plant or taken from it. At approximately 10:40 P.M. the relief watchman, who was then engaged in an unsuccessful attempt to gain admission to the factory, saw an unknown colored man run away from the building. Cole died of the injuries thus received five days later.

On the basis of these proofs the Workmen's Compensation Bureau on May 27, 1948, dismissed the petition on the ground that there was nothing to indicate that Cole's assailant was in the appellant's plant with intent to steal anything from the plant and that the evidence pointed "the other way," i.e., that the assailant was there solely to robe Cole. After the petitioner had appealed to the Essex County Court of Common Pleas the murderer was captured, confessed, and was thereafter

committed to the New Jersey State Hospital as suffering from dementia praecox. Thereupon, on September 21, 1948, without making any determination the Essex County Court, to which the proceeding had been transferred on September 15th under the new Constitution, remanded the matter to the Bureau to permit the taking of newly discovered evidence and the making of such determination as might seem justified in law. The order, to which both parties consented, provided that the pending appeal was "withdrawn and discontinued." At the subsequent hearing in the Bureau the confession of the murderer was offered, but it was excluded as hearsay. No other evidence being offered, the Bureau on November 15, 1948, again dismissed the petition.

The petitioner then appealed to the Essex County Court, which reversed the determination of the Bureau on the ground that the attack upon Cole was a risk to which he was exposed as a normal incident of the nature of his employment as a night watchman and that, since the proofs showed no acquaintance between Cole and his assailant and no known reason for a personal attack upon him by anyone, in the absence of contrary evidence adduced by the employer it must be conceded that death arose out of his employment, 63 A.2d 293 (1948), not officially reported. The employer then appealed to the Appellate Division of the Superior Court which unanimously affirmed the judgment of the County Court, 3 N.J. Super. 157 (App. Div. 1949). From this judgment the employer now appeals to this court.

The present appeal has been improperly taken to this court and is subject to dismissal as contended by the petitioner. The appellant seems to conceive that it has some right of appeal under the terms of the legislation implementing the 1947 Constitution, because of the fact that the first order of dismissal in the Bureau was entered on May 27, 1948, and the appeal from the order to the Essex County Court of Common Pleas was taken before September 15, 1948, the effective date of the Judicial Article of the new Constitution. On September 21, 1948, however, the appeal from the dismissal of May 27, 1948, was by consent of the parties "withdrawn

and discontinued" in the Essex County Court and all possibility of further proceedings on that appeal necessarily fell with it. The determination of the Bureau that the appellant now seeks to review was not entered until November 15, 1948, two months after the effective date of the Judicial Article, and it is accordingly governed by the provisions of the new Constitution, which give the appellant an appeal of right to the Appellate Division of the Superior Court, with a further appeal to this court as of right only when a constitutional question is involved or there is a dissent in the Appellate Division (Art. VI, Sec. V, par. 1).

This court, however, will not suffer an appellant to lose the right to a review here of a meritorious question solely by reason of his having mistakenly proceeded by appeal rather than by petition for certification or vice versa. In consonance with the spirit of our new practice as epitomized in Rule 1:7-9 we have examined the appeal as if it had been filed as a petition for certification under Rule 1:5-2, and we have concluded that an important question of law is presented that should be considered by this court. The appeal will therefore be treated as a cause in which certification has been granted on our own motion, Rule 1:5-1(a).

The defense interposed by the employer is that the accident that resulted in Cole's death did not arise out of his employment. There is no substantial dispute as to the facts of the case -- indeed, they have been for the most part stipulated by counsel -- and the controversy hinges on the inferences that are rationally to be drawn from the conceded facts. The stipulation of counsel admits that the relief watchman, who was to have taken over Cole's work at 11 P.M., was unable to gain admission to the factory at 10:30 P.M., that he ultimately sought the aid of the police at 10:55 P.M., that they broke in the door at 11 P.M., and entered the factory, that at the foot of the stairs leading from the office to the basement they found a pool of blood, that upstairs in the ...

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