Decided: May 16, 1955.
SETH LESTER, PLAINTIFF-PETITIONER,
ELLIOTT BROS. TRUCKING CO., INC., DEFENDANT-RESPONDENT
On appeal from a judgment of the Superior Court, Appellate Division where the following opinion was filed.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Jacobs and Brennan. For reversal -- Justices Heher, Wachenfeld and Burling. Wachenfeld, J. (dissenting). Mr. Justice Heher and Mr. Justice Burling authorize me to say that they join in this dissent.
[18 NJ Page 435] "Appellant Lester sought compensation for injuries suffered through an alleged assault and battery committed upon him by a fellow employee. Both the Workmen's Compensation Division and the County Court denied recovery on the ground
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that the injuries were not work connected within the contemplation of the Workmen's Compensation Act.
"The issue presented is one of fact, the determination of which depends primarily on the credibility of Lester on the one side and the employer's witnesses on the other. Both tribunals which have already considered the matter resolved the problem in favor of the employer. In this situation it is well known that where there is substantial evidence to support the conclusion, this court will not exercise its discretionary power under R.R. 1:5-4(b) and 2:5 to make new and independent findings. Ginter v. Westinghouse, etc., Corp., 11 N.J. Super. 338 (App. Div. 1951).
"The record discloses that Lester was employed by respondent as a night watchman, his regular hours of work being from midnight to 8 A.M. The fracas which resulted in the injury claim took place on November 28, 1952. The previous day was Thanksgiving and Lester worked overtime that day, quitting at 8 P.M. Then he was not required to report again until November 28 at midnight.
"It appears that a few days earlier, at about 5:45 A.M., one Donohue, the shop steward of the plant union, called Lester on the telephone and requested him to punch his (Donohue's) time card and those of two other employees. Lester refused. This seems to have engendered some bad feeling although there is no proof of any clashes of any kind from the time of the call until the altercation which produced this claim.
"On November 28, at about 9 A.M., Lester, who as already indicated was not due at work until 8 P.M. that evening, came to his employer's premises. There is some testimony that he had been drinking. He found Donohue there playing cards with two other truck drivers and told Donohue he would like to speak to him about the time card punching incident. Donohue said he was busy; some further words followed, and then a scuffle ensued.
"The employer's manager, one Helm, hearing the noise, came out of his office to find out what was going on. Then he told Lester and Donohue to come into his office and
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straighten the matter out. They did so and while there Lester told Helm about the improper request with respect to the time cards, with the result that Donohue received a reprimand.
"Apparently name calling was engaged in by the two men in Helm's office and either while the conversation there was in progress or just after it was concluded, Donohue punched Lester over Helm's shoulder and knocked him to the floor, causing the injuries complained of.
"Appellant sought to bring this quarrel within the course and scope of his employment by asserting that he came to the premises that morning for two reasons: (1) to collect his overtime pay for the Thanksgiving Day and previous Election Day work, and (2) to deposit some toilet articles in the men's lavatories where they were needed.
"It is not necessary to detail the evidence in connection with these two contentions. Both the deputy director and the County Court judge concluded that Lester was unworthy of belief as to them. They further decided that his presence there was solely the product of his own volition and that the assault and battery was not work connected in the sense required by the cases in order to justify an award of compensation. Sanders v. Jarka Corp., 1 N.J. 36 (1948); Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443 (E. & A. 1942).
"The evidence in support of both findings is substantial. We see no justification for an independent evaluation of the weight of the evidence.
"The judgment is affirmed."
The judgment is affirmed for the reasons expressed in the opinion of Judge FRANCIS in the court below.
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WACHENFELD, J. (dissenting).
The appellant's claim was discredited in the lower tribunals because they found he was not on his employer's premises in connection with his employment.
I come to an opposite conclusion. Regardless of Lester's motive in going to the terminal outside of working hours, he was clearly within the course of his employment when he responded to Helm's direction to "[c]ome in my (Helm's) office and straighten the thing out in there." The manager was endeavoring, in furtherance of his employer's interest, to iron out the difficulties and to eliminate the friction existing between the two employees. This was a work-connected effort.
The ensuing injury was an immediate outgrowth of Helm's attempt to settle the dispute and thus comes within the "course of employment" rule we have already established. Sanders v. Jarka Corp., 1 N.J. 36 (1948); Cierpial v. Ford Motor Co., 16 N.J. 561 (1954).
I would reverse and grant compensation.