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
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
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 ...