Civil action. On appeal from the Department of Labor and Industry.
This is an appeal from a judgment of the Division of Workmen's Compensation dismissing the petitioner's dependency claim petition.
On January 28, 1955 the petitioner Mrs. Crotty filed a "Dependency Claim Petition for Compensation" against Driver-Harris Co. with the New Jersey Department of Labor and Industry, Division of Workmen's Compensation. At
the formal hearing on the petition, by agreement of the parties and with the permission of the Deputy Director, counsel stipulated all of the relevant facts.
These stipulations evolve into the following synopsis:
On October 8, 1954 James Crotty left his Nutley, N.J., home and went to his work in the respondent's foundry. During the course of his working day and on the premises of his employer he was murdered and robbed of his pay by a fellow employee. (Joseph Williams was tried and found guilty of this murder.)
James Crotty was over 70 years of age. He was employed as a stock clerk by the respondent in its foundry. The stockroom was located in the basement of the foundry. As stock clerk the decedent's duties included dispensing stock items from either the stockroom or the yard, and keeping an inventory of supplies. His jurisdiction in the yard extended to sand storage bins adjacent to a brick-shed, which shed is attached to the west side of the foundry building at its northern corner approximately 50 feet north from the west side door of the foundry building. This west side door leads to the yard. He had no duties with respect to the brick-shed or its contents. In his job Crotty did a lot of wandering in and about the foundry on occasions and wasn't confined strictly to his stockroom. In fact, the foundry manager indicated that Crotty was allowed to go out into the yard for a smoke or fresh air. It was in this brick-shed that two co-employees found him dead at about 3:30 P.M. on October 8, 1954. It is stipulated that he was murdered by Joseph Williams, a fellow employee of the respondent.
Before noon on October 8, 1954 the decedent received his weekly pay check. By about 11:30 A.M. this check was cashed. The decedent was seen by his foreman at 2:00 P.M. in the foundry building. Between 2:30 and 2:45 P.M. the decedent was smoking and chatting in the brick-shed with his co-employees De BeBerry, Valentine, and Williams (his murderer). At about 3:00 P.M. he was seen by another employee, Ross Smith, passing out of the foundry and into
the yard. Co-employee Stephen Turscik saw the decedent walk by him in the foundry, and a short time later saw him carried back on a stretcher. He estimated the time at 3:45 P.M., which must be the time the stretcher passed, as the evidence establishes that Crotty was murdered between 3:00 P.M. and 3:30 P.M.
On the basis of these facts the respondent contends that the accident did not arise out of the employment and that the decedent had taken himself out of the course of his employment by being in a place where he had no duties for an extended period of time. The petitioner uses the evidence of the decedent's having been seen in and out of the foundry as indicating that the decedent did not spend an extended period in the shed before his death, and that though he had no duties in the shed, he was not prohibited from being in it, and was probably taking a permitted rest period in the shelter of the shed.
The issues for determination are whether or not the death of James Crotty arose in the course of his employment, and whether his death arose out of his employment.
A very comprehensive definition of each of these phrases appears in Belyus v. Wilkinson, Gaddis & Co. , 115 N.J.L. 43, 47 (Sup. Ct. 1935), an opinion by Justice Heher.
"* * * The words 'out of' refer to the origin or cause of the accident; the words 'in the course of' to the time, place and circumstances under which the accident takes place. An accident arises 'in the course of' the employment when it occurs (a) within the period of employment; and (b) at a place where the employe may reasonably be; and (c) while he is reasonably fulfilling the duties of the employment, or doing something incidental to it. It arises 'out of' the employment when the risk of such an occurrence is reasonably incident to the employment. Such a risk is one that grows out of or is connected with what a workman has to do in fulfilling his contract of service. And a risk may be incident to the ...