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Kelly v. Dempsey

New Jersey Supreme Court

Decided: September 28, 1953.


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

Per Curiam

[13 NJ Page 312]

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 burden of establishing his case by the preponderance of the evidence was not met.

"The testimony about the assault and battery is uncontradicted and should be accepted unless it is inherently improbable or so at odds with the surrounding facts and circumstances as to induce the conclusion that there has been a failure to meet the required standard of proof.

"The County Court seemed to feel that since there is evidence that appellant was in a belligerent mood as the result of his difficulties with Giotta and Dempsey, and because the police found the barroom in a state of disorder, with blood on the floor near the telephone booth and a trail of it to the back of the bar, Kelly's story of a single blow and no further recollection renders incredible the basic version of the attack.

"However, substantial corroboration of his testimony is present. He did telephone the township police; the police officer he talked with so testified. Some disparity in the statements as to the conversation are pointed to, but they are not very significant. The important fact is that the call was made and that it related to the refusal of some persons to go home.

"Likewise, it is apparent that preparations were made to close the tavern. Thomas Leach, the first person on the scene, tried to obtain a coin from the cash register to call an ambulance and he found that the money, except for some pennies, had been removed.

"Another officer of the township, William Woodward, who came to the scene before Kelly was taken to the hospital, observed broken glass 'right in the immediate area of the phone booth,' perhaps four or five feet away. Also, after some treatment had been administered at the hospital, he asked how the injury came about and Kelly told him that he was 'slugged or struck with a bottle * * * coming out of a phone booth.'

"The awry condition of the barroom, the trail of blood on the floor, and the presence of broken glass at places other than the phone booth, in my judgment are being given overemphasis and undue probative force. Once Kelly had been struck severely in the face and nose it is not at all unreasonable to conclude that, while in a dazed or semi-conscious condition resulting from the blow, he participated in a struggle with his assailant. In the absence of more proof on the subject than is disclosed by this record the conclusion that the condition of the barroom was an incident of a physical struggle precipitated by Kelly does not seem to be warranted.

"In this particular case, in view of the disparate findings in the Workmen's Compensation Division and the County Court, reflecting, as they do, opposite conclusions on the issue of credibility, the ends of justice can be served only by undertaking an independent study of the record and by reaching independent findings of fact. (Rules 1:2-20; 4:2-6). After having pursued this course, we are convinced that the evidence preponderates in favor of the compensability of Kelly's claim.

"Therefore the judgment of the County Court is reversed and the award of compensation is reinstated."


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