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Kelly v. Dempsey

Decided: September 28, 1953.

RAYMOND L. KELLY, PETITIONER-RESPONDENT,
v.
MICHAEL DEMPSEY, TRADING AS DEMPSEY'S TAVERN, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None.

Per Curiam

The judgment appealed from is affirmed for the reasons expressed in the opinion of Judge Francis in the Superior Court, Appellate Division.

On appeal from a judgment of the Superior Court, Appellate Division, who filed the following opinion. "Appellant received an award of compensation in the Division of Workmen's Compensation, which was reversed in the County Court. The claim was based upon injuries received by an assault and battery allegedly arising out of and in the course of the employment.

"Kelly was one of two bartenders in respondent's employ. He and his fellow worker, Giotta, worked the night shift on alternate weeks. The daytime period was from 8 A.M. to 6 P.M.

"On the day before the incident in question, Kelly, who was working days, was not relieved by Giotta for a few hours after the regular quitting time. The next day, December 15, 1951, he expected Giotta to appear earlier than 6 P.M. in order to make up for the tardiness of the previous evening, which, according to Kelly, was the customary practice. However, when Giotta had not appeared by 5 P.M., although he was expected at 4, Kelly telephoned him for an explanation. The conversation was unpleasant, acrimonious, and admittedly unproductive.

"It seems plain that Kelly was piqued before the call; after it, the pique became genuine anger. He had imbibed some quantity of alcohol, apparently both before and after the conversation. However, there is no satisfactory proof that he was intoxicated.

"His anger exploded into action when Giotta arrived with Dempsey at about 6 P.M. and he had to be restrained from a physical attack. In any event, Giotta and Dempsey, who likewise had been drinking, left the tavern and went to a diner for something to eat.

"After their departure Kelly remained on duty. A patron of the place, one Osprey, a friend of respondent, was present during all the incidents mentioned. His testimony demonstrates that within a short time thereafter Kelly calmed down and seemed to be all right. Feeling that conditions had returned to normal, Osprey also left. He was the last of the witnesses to see Kelly before the assault and battery took place.

"About 6:30 P.M. Dempsey telephoned and told Kelly to close up. He then proceeded with the customary routine to accomplish the instruction, which consisted, among other things, of 'pulling the plug in the basin,' checking the burglar alarm system, removing the cash from the register, asking the remaining patrons to complete their drinks, as he was closing.

"At this time there were only two couples in the tavern. One couple left; the other two patrons, who were strangers to him, did not do so. The man seemed to be intoxicated and apparently demanded another drink. In an effort to appease him Kelly gave him a glass of beer instead of whiskey. When this was emptied another was demanded, but refused, with the request that he leave the premises. This suggestion met with the statement that he did not intend to do so. Whereupon Kelly told him that unless he complied the police would be called, and the recalcitrant one told him to go ahead and do so.

"Kelly then called the Middletown Township Police, reported the incident to Officer James Hubbs, and requested the sending of a police car. Hubbs replied that there were no cars in the immediate vicinity and inquired if one was really needed. At this he told the officer he would try to get the person out of the place.

"As he stepped out of the telephone booth the patron struck him across the face and nose with a glass, following which he remembered nothing.

"If these are the facts, the resulting injuries are manifestly compensable. Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443 (E. & A. 1942); Sanders v. Jarka Corp., 1 N.J. 36 (1948). But the County Court held that, under the circumstances disclosed by the record, appellant is unworthy of belief and therefore the ...


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