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Bowen v. Olesky

Decided: September 23, 1955.


Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Francis, J.A.D. (dissenting).


[37 NJSuper Page 20] Appeal is taken from a judgment of the Essex County Court denying petitioner workmen's compensation

and reversing the Workmen's Compensation Division. The Division had awarded him compensation.

Petitioner's claim is based on a severe assault upon him committed by some one for some purpose not clearly apparent. The sole question we shall deal with, primarily a factual question here, is whether the assault arose out of the employment.

He had, at the time of the assault, been in respondent's employ as a butler, houseman and chauffeur for 20 months, living in the employer's house. The Saturday night and the Sunday (he had the Sunday off) prior to the assault, he had spent at the home of a married woman whom he referred to, in his statement to a policeman, as his girl friend.

He testified he returned to his employer's home at 11:15 P.M. that Sunday, and after hanging his clothes neatly in the closet, went to bed and to sleep. His story on the stand was that the next time he was aware of his whereabouts was the following Tuesday night when he "came to," "regained consciousness" in the hospital. He claims his "watch was taken off," his "ring [was] taken off [his] finger," and his keys and wallet or wallets containing $60 were missing.

The employer's wife testified that on Monday morning when petitioner was found in bed, there was a lot of blood in his room -- in the bed, on the floor near the bed and on two walls of the room, with some blood spattered on the wall up to about one foot from the ceiling. A captain of the police force said the wall and the mattress on the bed were saturated with blood. Petitioner's trousers, shirt, jacket and overcoat were lying on the floor, as though thrown there, but without any blood on them. A bloody handkerchief lay near his bed. No blood was found outside his room except for a little in the bathroom to which he apparently went Monday morning.

All this indicates that he was assaulted while in his room and after he had taken his clothes off. His injuries consisted of a fractured skull -- a long fracture running from the frontal region to the base of the skull -- a rupture of one eyeball and lacerations, injuries that confined him to the hospital for 4 1/2 weeks.

Petitioner's contention before us is that he was the victim of an assault by some one who had entered his employer's home to rob the employer or his family. The theory is that the thief, coming up the kitchen stairs, by accident got into a servant's room in the servant's hallway (a front staircase led to the family hallway). As evidence of the intruder's motive, petitioner points to the theft of his wallets and other articles mentioned. On the other hand, it may be noticed here, the intruder entirely disregarded everything else in this rather pretentious house.

The critical question is whether in endeavoring to establish this theory, the petitioner has sustained the burden of proof. The County Court held he had not done so. Much stress is put by the employer upon discrepancies in the stories petitioner told on the Monday morning following the assault as to the cause of his injuries. But these discrepancies we think are not too damaging to petitioner's case. On that Monday morning he told the laundress at the house, later the employer's wife and thereafter a policeman that his injuries were due to a fall. At the hospital he told his attending physician that he did not recall how the accident happened, but he thought he was hit outside of the house. Neither of these stories can be accepted.

Petitioner claims he does not remember talking to these persons. It could well be that the severe blow he received on the head brought about a loss of memory as to what he said concerning a fall or being hit outside the house; being confused that morning, he may have been floundering about for an explanation of his predicament.

We are, however, a little more disturbed by other aspects of the conversation he had with the policeman that Monday morning. There were about ten minutes of questioning by the officer, to which petitioner answered repeatedly that he did not know. Then, asked to give his sister's address, petitioner said his address book was in his wallet, which the officer found to be missing.

Petitioner then somehow discovered, and told the officer, that his other wallet, watch, ring and keys were missing.

It is a little surprising that his memory is gone as to this portion of the conversation which must have required some intelligent consideration on his part and would, it would seem, be quite apt to have reached his full consciousness. He told the policeman at the same time the name and address of his girl friend, at least the name of his sister, that he had been at the girl friend's the day before and that "he had had a few drinks" there (at the trial, he said it was a couple of glasses of beer on Sunday). He also answered questions asked of him by the employer's wife. Furthermore, at the hospital he was conscious and answered questions.

Did he really, then, suffer a loss of memory as to everything that happened Monday morning; or was he trying, as the employer claims, to avoid having to explain the statements he made that morning? There are other troublesome questions. Was the assault, as the employer urges, undertaken for some vindictive, personal purpose unconnected with the employment? And was the theft of the wallet and other articles "but an incident" (cf. Cole v. I. Lewis Cigar Mfg. Co. , 3 N.J. 9, 15 (1949)), of this purpose? The facts by no means establish such a purpose, but they raise a question.

Nothing in the record, it may be noted, seems to indicate that the police concluded that the purpose of the intruder was to rob the employer's home. On the contrary, they asked petitioner whether he was suspicious of anybody; and when told by him that there was a maid at the employer's house who was jealous of petitioner's girl friend, they checked out that clue, but without result. They also verified, to their satisfaction, petitioner's statement that his girl friend's husband was in jail. Later they dropped the investigation.

The question whether the intruder's motive was personal revenge, lengthens as we take into account other circumstances. For one thing, petitioner's injuries were so very severe as to indicate that the intruder wanted to inflict punishment on the petitioner, and not -- in order to perpetrate a theft -- merely to silence him because (as was said by his counsel on the argument) he was stirring in his sleep.

Moreover -- notwithstanding petitioner's testimony that he never had had any one in his bedroom at the employer's house -- the cook there testified that at 5:00 A.M. on the Wednesday before the assault, she (judging from sounds) thought two persons left his bedroom going downstairs and that one (perhaps the petitioner) immediately returned. It might be noted at this point that quite a few months after the accident a woman's underpants were found in the clothes basket in the closet ...

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