On appeal from the Workmen's Compensation Division of the Department of Labor.
The appeal here is from the dismissal of appellant's petition for workmen's compensation by the Workmen's Compensation Division of the Department of Labor.
The claim for compensation was presented by Helen Bujalski as guardian ad litem of the employee, Alex Kulinka. Prior to the hearing Kulinka had been committed to Greystone Park for mental incapacity which apparently resulted from the severe head injuries suffered in the accident out of which the action arose. However, no determination was made below on the subject of disability and the extent thereof, the parties having agreed that the issue of liability be disposed of first.
The petition, as amended, sought compensation for Kulinka, alleging that on February 10, 1945, during the course of his regular work for respondent, he fell from a crane and was injured. While the case was tried below primarily on the defense of intoxication, the answer sent here with the record does not plead any such defense. Paragraph 37 of the answer which was filed on July 19, 1945, says:
"If you deny that compensation is payable in this case, explain your reasons for this conclusion."
To this respondent pleaded:
"Respondent denies petitioner suffered compensable accidental injury and leaves petitioner to full proof of all claims set forth in the petition."
At the hearing respondent amended this paragraph of the answer to read as follows:
"Respondent denies that petitioner suffered a compensable accidental injury and leaves petitioner to prove all claims set forth in the petition; that any disability or injury for which the employee, Alex Kulinka, may at this time be suffering from was the proximate and direct cause of any accident on February 10, 1945."
Neither of these allegations constitutes a pleading of the statutory affirmative defense that intoxication was " the natural and proximate cause of the injury." (R.S. 34:15-7).
However, since the case was fully tried by the parties on the issue of intoxication, without objection, it must be treated on appeal as if such issue had been pleaded properly.
For a number of years prior to the date of this accident respondent operated a foundry at Polk Street, Newark, New Jersey. The plant covered a square block in area.
Kulinka had worked there for about eight years. On the day of the mishap he was operating a crane. Pictures indicate that the cabs of these cranes moved along an elevated track which apparently ran for some distance through the
building. To get into the cab it was necessary to go up a narrow iron ladder to a point opposite its elevated position, then step across the three-foot space to the floor of the cab and climb over the top rail which was about three feet above the floor.
In the morning Kulinka worked with a fellow employee, Robert Mincy. Mincy was the ground man. During the morning they operated a crane which was suspended about 12 feet from the floor. The floor of its cab extended about 12 inches beyond the sides. This extension formed a ledge so that when the operator desired to get into the cab he would step from the ladder to this ledge, hold onto the top rail and climb over the rail.
This was the first time Mincy had ever worked with Kulinka. However, during the morning everything went "nicely"; Kulinka was a "good working man" and did a good job. He came down from the crane and left the building "a couple of times." Where he went and whether or not it was to the rest room, which was out of the building, Mincy did not know. And "a couple of times" when he was not busy he would "lie down on the crane." At no time during the morning did Mincy see him drink anything.
They quit work for lunch at 11:30 and Kulinka descended from the crane without difficulty. The lunch period was one-half hour and they had orders to work on a different crane in the afternoon. After lunch they were to meet at the place in the foundry where the other crane was located.
Petitioner's proof is to the effect that on leaving the plant he went to a nearby tavern. There, according to the proprietress, he had two one-ounce glasses of whisky and one glass of beer and he ate a sandwich. He remained about a half-hour when the plant whistle blew, at which time he got up and walked out of the place, obviously to return to work. The ...