On appeal from the Division of Workmen's Compensation, Department of Labor and Industry.
This is a workmen's compensation case wherein appellant claims her alleged husband, Lewis Green, met death by accident arising out of and in the course of his employment by respondent Simpson & Brown Construction Co.
At the close of petitioner's case before the Division of Workmen's Compensation respondent's motion for judgment of dismissal, upon the evidence presented, was granted. The appeal is from that judgment.
The rule is well established that, upon respondent's motion for dismissal proposed at the conclusion of petitioner's case, all reasonable inferences deducible from the evidence submitted must be resolved in petitioner's favor and that therefrom it be determined whether the petitioner has made out a prima facie case. Kelly v. Hackensack Water Co. , 10 N.J. Super. 528, 77 A. 2 d 467 (App. Div. 1950).
The deputy director concluded that the evidence did not establish a compensable claim under our statute because the petitioner failed to establish that the Division of Workmen's Compensation of the State of New Jersey had jurisdiction and also failed to establish that the decedent met with an accident arising out of and in the course of his employment with the respondent. The facts are as follows:
The decedent was employed for the past three or four months as a watchman on a vessel owned by respondent that was secured to a dock on the Passaic River while the respondent company had been doing work on a bridge. His duties were to take care of the vessel, maintain the fires and steam pressure in the boiler and pump out the bilges.
On Saturday morning, January 27, 1951, at about 9 o'clock decedent checked in at the gate of the Sun Oil Company over whose property it was customary for him to traverse to reach the vessel. He was to remain aboard the vessel until the following Monday morning, January 29, 1951. The weather conditions during the above mentioned period have been described as cold, icy and slippery.
After the decedent had checked in he was never seen alive again. Approximately three and a half months later his body was found in the Passaic River. A death certificate was put in evidence giving the cause of death as drowning. Respondent does not seriously contest the fact that the decedent's death was caused by drowning, but he states there is insufficient evidence to establish that the drowning was the result of an accident, or that it arose out of and in the course of decedent's employment. In addition he contends that there is no evidence of where the accident occurred and that if it occurred aboard the vessel then the State would have no jurisdiction as it would be a case within the federal jurisdiction.
In cases of unwitnessed deaths it is the policy in this State to ease the burden of proof required to establish a compensable claim. In the very recent case of Macko v. Herbert Hinchman & Son which was decided by the Appellate Division of the Superior Court on January 8, 1953, 24 N.J. Super. 304, the court, confronted with an unwitnessed death case said,
"The death of an employee from accident, before he has an opportunity to give his version of the accident and to tell why he was at the place where the misadventure happened, is apt to leave his dependents utterly unable to present evidence that would be ...