On appeal from the Superior Court, Appellate Division, whose opinion is reported in 26 N.J. Super. 306.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For reversal -- Justices Heher, Jacobs and Brennan. The opinion of the court was delivered by Oliphant, J.
This is a workmen's compensation case in which the petitioner is the alleged common-law wife of the deceased.
Respondent was the owner of a dredge having its own motive power which was tied up at a dock of the Sun Oil Company on the Passaic River in Newark. The Passaic River is a navigable stream. At the time of the decedent's disappearance he was the dredge watchman whose duties included "getting the boilers going, getting steam up or banking the fires and keeping the pressure alive, and things of that nature" and "getting rid of the bilge."
On January 27, 1951 and for three days thereafter it was slippery, icy and snowing. On the morning of that day about 9:15 A.M. the decedent entered the main gate of the Sun Oil Company on his way to work on the dredge where he was to remain for an unbroken period of three days. The gate was under the supervision of guards over a 24-hour period and all employees of the Sun Oil Company were supposed to enter and leave at this gate and the times thereof were checked. While the decedent was not an employee of the Sun Oil Company he "checked in and proceeded down toward the dock where he worked." He was not seen alive thereafter. On May 12, 1951, his body was found in the Passaic River. The death certificate gave the cause of death as drowning.
The petition was dismissed in the Division of Workmen's Compensation and that judgment was reversed on appeal to the Essex County Court. 24 N.J. Super. 422. On further appeal the Appellate Division reversed the judgment of the County Court and reinstated that of the Division. 26 N.J. Super. 306. On petition we certified. 13 N.J. 292.
We will consider the jurisdictional question raised later and will first proceed to determine the question of whether or not the fatality arose "out of" and "in the course of" decedent's employment.
Green was not an employee of the Sun Oil Company and his checking in at the gate of their premises has no particular
significance. His work did not begin until he reached the dredge, at best the dock at which it was moored. The only proof in the case is his entry through the gate, his proceeding toward the dock and the finding of the body in the river nearly four months later. There is no proof whatever of the time, place or circumstances of the death.
The plaintiff has the duty of presenting evidence "tantamount to legal proof" supporting the allegations of the petition. That proof may be direct, circumstantial or presumptive, Nardone v. Public Service Elec. & Gas Co., 113 N.J.L. 540 (Sup. Ct. 1934), and probability, not the ultimate degree of certainty, is the test. Jochim v. Montrose Chemical Co., 3 N.J. 5 (1949). In a case such as this the petitioner must show that the death arose "out of" and "in the course of the employment" by a preponderance of the evidence in favor of the tendered hypothesis, Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533 (Sup. Ct. 1939); Ames v. Sheffield Farms Co., 1 N.J. 11 (1948); Russo v. Wright Aeronautical Corp., Ibid. 417 (1949); Jochim v. Montrose Chemical Co., supra, and this she did not do. To conclude in her favor we would be compelled to indulge in guessing, speculation and conjecture. A court cannot spell out a compensable accident when there is neither direct nor circumstantial evidence as to the occurrence. Johnson v. Ulster Iron Works, 9 N.J. Misc. 239 (Sup. Ct. 1931), affirmed 109 N.J.L. 267 (E. & A. 1932); Ligenza v. White Foundry Co., Inc., 136 N.J.L. 436 (Sup. Ct. 1948), affirmed 137 N.J.L. 610 (E. & A. 1948).
The cases of Macko v. Herbert Hinchman & Son, 24 N.J. Super. 304 (App. Div. 1953), and Jochim v. Montrose Chemical Co., supra, are not authorities for an award here. In each of those cases the inferences from the facts adduced led to a more probable hypothesis, and it could be properly concluded therefrom, that the deaths there involved arose "out of" and "in the course of the employment."
While the foregoing conclusions effectually dispose of the case we deem it advisable to answer the ...