Freund, Stanton and Francis. Stanton, J.A.D. (temporarily assigned).
[26 NJSuper Page 307] This is an appeal from a judgment of the Essex County Court reversing a judgment of dismissal entered in the Division of Workmen's
Compensation. The dismissal was predicated on a finding that the petitioner had failed to establish that the Division had jurisdiction of the subject matter and that the decedent's death resulted from an accident arising out of and in the course of his employment with the respondent.
The petitioner's proofs were to the effect that the decedent was employed by the respondent as a watchman on a dredge which on Saturday, January 27, 1951 was moored alongside a pier in the Passaic River, a navigable stream; that his duties included watching the defendant's dredge, taking care of the fires under the boilers, banking them and getting up steam as the occasion required, and pumping bilge water from the vessel.
At 9:15 A.M. on the day mentioned, the decedent entered a gate leading to the premises of the Sun Oil Company on Doremus Avenue in Newark with the intention of crossing the same to reach the dredge where he was to be employed continuously from that time until the following Monday morning. His passage through the gate was noted by a special officer of the Sun Oil Company, who wrote his name in a book in which he made a record of all persons entering the premises. This officer testified that after the decedent passed through the gate he walked toward the river front. As far as the proofs disclose, that was the last time the decedent was seen alive. His body was recovered from the Passaic River on May 12, 1951. In the death certificate in evidence, drowning was given as the cause of his death. There was testimony by Frankie G. Green, who like the petitioner herein claims to be the widow of the decedent, that she had accompanied the decedent to the gate of the Sun Oil Company on the morning in question and had seen him enter the gate. She had come there in an automobile and she left as he entered the gate. She said that it had been sleeting and snowing and that the roads at the time were "icy and slippery." It might be said here that she also filed a petition for compensation and proofs were taken on both petitions at the same time. Her petition was likewise dismissed, but she is not a party to this appeal.
From the testimony as to the nature of the decedent's employment and duties, it might be said that this case falls within the "twilight zone" doctrine enunciated in Davis v. Department of Labor , 317 U.S. 249, 63 S. Ct. 225, 87 L. Ed. 246 (1943), and which was applied in Allisot v. Federal Building & Dry Dock Co. , 4 N.J. 445 (1950), where it was held that a claimant employed as a painter on the extensive reconstruction of an army transport moored alongside a pier in navigable waters had recourse to our state law for his remedy for injuries sustained as a result of an accident arising out of and in the course of his employment. Assuming, arguendo , that the Division of Workmen's Compensation had jurisdiction, the question then arises as to whether or not the petitioner sustained the burden of proving that the decedent's death was due to an accident arising out of and in the course of his employment with the respondent. Bryant, Adm'x. v. Fissell , 84 N.J.L. 72 (Sup. Ct. 1913).
In Nardone v. Public Service, etc. Co. , 113 N.J.L. 540 (Sup. Ct. 1934), the proofs as here were entirely circumstantial; the employee was found seriously injured on his employer's premises and died shortly thereafter from skull injuries; there were no witnesses to the happening which caused his death. The court in that case said:
"An accident arises 'out of' the employment when it is something the risk of which might have been contemplated by a reasonable person, as incidental to it. And a risk is incidental to the employment where it belongs to or is connected with what a workman has to do in fulfilling his contract of service. * * * Thus whether the proof be direct proof, circumstantial or presumptive proof, i.e. , based on a proper deducible inference, or both, it must show that the cause of death was due to a risk which was directly or indirectly connected with it or incidental to the employment. This is the real test."
It then reviewed the facts and conclusions in a number of cases in this State and made this conclusion:
"* * * in each case where liability was imposed on the employer, and sustained, on presumptive or circumstantial evidence there is to be found circumstances which form the basis for a
rational inference, tantamount to legal proof of the fact, that the accident resulting in death arose 'out of' and 'in ...