Eastwood, Freund and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d. Francis, J.A.D. (dissenting).
[31 NJSuper Page 490] In this workmen's compensation case, we are in concurrence with the dismissal by the Division
of Workmen's Compensation of the petition at the conclusion of the claimant's proofs and the affirmance by the County Court.
The record discloses that the appellant suffered injuries at his place of employment on April 30, 1952. A fellow employee, Jack Keen, a comparatively new employee, who worked alongside the appellant, became engaged in a personal argument with another employee named Felix Darden, wherein Darden and Keen made offensive personal remarks against each other. Thereupon, the appellant called to Darden, telling him to let Keen alone as he was behind in his work. At that time, Darden and the appellant became engaged in making offensive personal remarks towards each other, eventuating in their shoving each other until Darden fell backwards. The appellant then returned to his work and approximately two to five minutes after the argument ended, Darden, without warning, struck petitioner from the rear on the back of appellant's head with a 12-pound piston. At the hearing before the Division, Keen testified that "me and the rebel (meaning Darden) was talking back and forth there. Frank told the rebel to leave me alone because I had so much work to put out that day." Cierpial testified that "I told him (Darden) to leave him alone", and "Then Felix came over and told Jack that he was going to give me the 'needles,' instead of using the word, 'heckling.' * * * So, we started talking back and forth, fooling. I told him to go on his job because he was away from the convertible line where we make up the tops. So then he put my wife into the conversation and he put my mother into the argument. Then he shoved me. I shoved him back. After that, it was broken up. * * * After everything was broken up, two minutes later, he hit me in the back of the head with a 12-pound convertible piston. It is like steel with three nuts."
On cross-examination, Cierpial first testified that he was authorized by the foreman to supervise Keen, but retracted that statement and said "No, to tell them." What he was "to tell them" is not disclosed.
We are in accord with the appellant's assertion in his brief that the question before the County Court "was whether or not, resolving all inferences in petitioner's favor, petitioner had made out a prima facie case, that is also the question before this court."
Primarily, the burden is, of course, upon the claimant to prove those essential and indispensable elements of his claim by a preponderance of the evidence and, although the proof does not require the elimination of all doubt, such burden embraces the necessary obligation to establish that the injury "was the consequential result of an accident within the import of the statute." Trusky v. Ford Motor Co. , 19 N.J. Super. 100 (App. Div. 1952); Reynolds v. Public Service Coordinated Transport , 21 N.J. Super. 528 (App. Div. 1952).
Upon a motion for dismissal, submitted at the conclusion of petitioner's case, the evidence together with all reasonable inferences deducible therefrom must be resolved in petitioner's favor. This rule is so strongly entrenched in our juridical law that it needs no citations to support it.
Other established rules to be considered here are that every intendment is in favor of the judgment under review; that to raise a doubt is not sufficient to lead to a reversal and an appellate court should not disturb the County Court's findings unless it is well satisfied that they are mistaken. 5 C.J.S., Appeal and Error , § 1533; McGowan v. Peter Doelger Brewing Co. , 10 N.J. Super. 276 (App. Div. 1950); Vandenberg v. John De Kuyper & Son , 5 N.J. Super. 440 (App. Div. 1949); Galloway v. Ford Motor Co. , 7 N.J. Super. 18 (App. Div. 1950), affirmed 5 N.J. 396 (1950); Donofrio v. Haag Brothers, Inc. , 10 N.J. Super. 258 (App. Div. 1950).
Appellant concedes that: "If the only connection between the employment and the assault is that the assault occurred at the place of employment, the employment is not regarded as such a contributing cause and the accident is said not to arise out of the employment."
Our review of the record satisfies us that the incident which eventuated in the appellant's injuries was solely personal and entirely unrelated to any duty or task of the employee or incidental thereto in the performance of his work. The origin of the incident was a conversation between two fellow employees which did not concern the appellant personally and certainly had nothing to do with the appellant's performance of his work. Cierpial clearly injected himself into the conversation between Darden and Keen and thereafter the offensive epithets were directed by each of them against the other, leading to the shoving incident and Cierpial's injury when Darden struck him with the piston. ...