On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Wachenfeld, J.
There are two fundamental doctrines that are constantly an aid in determining whether workmen's compensation is due in a given cause.
An injury suffered during the course of the work does not per se entitle one to the benefits of the Workmen's Compensation Act. It must also appear that the injury arose out of the employment. Seiken v. Todd Dry Dock, Inc., 2 N.J. 469 (1949); Gargiulo v. Gargiulo, 13 N.J. 8 (1953).
A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service. Bryant v. Fissell, 84 N.J.L. 72 (Sup. Ct. 1913); Beh v. Breeze Corp., 2 N.J. 342 (1953); Henderson v. Celanese Corp., 16 N.J. 208 (1954).
A procedural development in the case sub judice brings into play another cardinal principle. On a motion for a dismissal at the conclusion of the petitioner's case, the evidence, together with all reasonable inferences deductible therefrom, should be resolved in the petitioner's favor. This concept is so universally recognized in our judicial law as to require no citation to support it.
In the matter presently before us, at the conclusion of the petitioner's case and before any evidence was offered on behalf of the respondent, a motion for judgment of dismissal on the ground that the accident did not arise out of and in the course of employment was granted before the deputy director.
On appeal, the County Court entered a like judgment dismissing the petition on the same ground, to wit, that the
petitioner did not sustain an accident arising out of employment. The Appellate Division found likewise and the judgment was affirmed, but a dissent was filed, providing the necessary foundation under the rules for the matter to be presented to us. R.R. 1:2-1(b).
The evidence disclosed that the petitioner on April 30, 1952 suffered certain injuries while at work on the assembly line at the respondent's plant. Two other employees, Jack Keen and Felix Darden, were working nearby approximately a foot and a half away. They indulged in a personal conversation relating to a sex equation confined to particular circumstances. Darden was said to be "heckling" Keen. The petitioner told Darden to let Keen alone "because he is behind in his work." Keen's view was that the petitioner's interjection was caused by his wanting Darden "to leave me alone because I had so much work to put out that day."
Darden did not take kindly to the intervention but, employing profanity, told the petitioner off, saying: "* * * Don't tell me to leave this man alone."
On cross-examination, the petitioner was asked: "That is none of your concern, Mr. Cierpial, is it?" to which he answered: "The ...