Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Petitioner obtained an award of 20% of partial total disability (orthopedic) in the Workmen's Compensation Division for an injury suffered in an altercation with a fellow-employee. The County Court sustained the award and respondent employer appeals, claiming that petitioner was the initial aggressor and therefore not entitled to recover under the Workmen's Compensation Act.
Petitioner was a waitress in respondent's employ. During the busy dinner hour on Election Day evening, November 8, 1955, she had gone into the kitchen to pick up an order of steak and onions. The onions were missing from the plate. She asked the chef to complete the order; he said he had filled it, and began to shout at her, using profane and indecent language. Petitioner went to the manager to complain but did not find him in his office. She returned to the kitchen and found him talking to the chef. When she began to tell the manager of the chef's abuse the latter resumed his vile and abusive language. She testified that he could be overheard by customers sitting at a bar nearby; she became embarrassed and excited, and attempted to slap the chef's face (she was not sure if she actually did). He retaliated by hitting her with such force that she was thrown against the kitchen refrigerator, her back striking the protruding door handle. Another waitress testified that petitioner did not swing first, but it was the chef who delivered the first slap. The chef denied having used profane or indecent language, or that he struck petitioner. However, a waitress who testified for respondent contradicted him and corroborated petitioner; she said the chef had used abusive language and hit petitioner, but it was petitioner who struck the first blow. The manager was not called as a witness by either side; it appears he was somewhere in Florida and could not be located at the time of the hearing.
Petitioner was discharged from respondent's employ immediately after the altercation. She worked in another restaurant for about five days but was forced to discontinue because of severe pains in her lower back and right leg. She saw an orthopedic surgeon on November 21. He at once sent her to the hospital where she was given traction treatment for a ruptured disc for a period of nine days. The pains persisted after her discharge, so that on December 5 she was readmitted to the hospital and an operation performed for removal of a herniated disc. Petitioner now complains of pain in her lower back, numbness in her leg and loss of normal physical function in the ordinary pursuits of life.
There was testimony that petitioner had twice before complained of back ailments, once in February 1955 and again in July 1955, when she had back pains as a result of lifting heavy trays. She was out of work two days on the first occasion, but required no medical attention; she was away from work only one day on the second occasion after making a single visit to the doctor. Her pains then were different from those resulting from the altercation in question: she had had only temporary back pain, it was not intense, and there was no involvement of the leg. The orthopedic specialist who operated on petitioner testified that the herniated disc and petitioner's condition were causally related to the incident of November 8, 1955. Another doctor, who examined her shortly after the operation, testified to causal relation upon the basis of a hypothetical question, and fixed disability at 30% of total. Respondent's medical expert, who had also examined petitioner, testified in answer to a hypothetical question and on the basis of the hospital record showing that degenerated material had been removed during the operation, that the disc rupture had occurred at least three months before the day of the incident with the chef.
The County Court, as had the deputy director, found as a fact that petitioner sustained an injury which arose out of and in the course of her employment, and that even assuming the existence of prior pathology, she would be
entitled to compensation for the end result. They also found that petitioner was not the aggressor, but assuming she was initially, the chef had used more force to repel the aggression than was necessary, thereby making him the aggressor. It seems clear from the opinions filed in the Division and by the County Court that both tribunals completely disbelieved the chef's testimony.
Respondent contended before the two lower tribunals that petitioner's disabling back pathology preexisted the date of the fracas with the chef, and did not result from the alleged accident. While respondent does not present this argument as part of its statement of questions involved, as required by R.R. 1:7-1(c), and nowhere expressly urges it as a ground for reversal, its brief makes repeated allusions to the preexisting condition. We dispose of the matter in order to present a clear field for discussion of the one point expressly urged on this appeal, namely, whether or not the facts show that petitioner was the aggressor, thereby disentitling her to compensation benefits.
Both of the lower tribunals decided that the blow inflicted when petitioner's back hit the refrigerator handle was the immediate cause of the herniated disc. We find that the fact she had on two prior occasions suffered from temporary back pains does not preclude recovery. The mere preexistence of a related pathology does not bar compensation. It is familiar law that in cases of injury from accident arising out of and in the course of the employment, the employer takes the employee as he finds him, with all his existing disabilities and weaknesses. The employee is entitled to compensation "for all the consequences flowing freely and naturally from his accidental injury, irrespective of the fact that such consequences may be much more severe by reason of his pre-existing condition or defect." Giambattista v. Thomas A. Edison, Inc. , 32 N.J. Super. 103, 114 (App. Div. 1954)
We accord great weight to the factual findings of the County Court and will not reverse them unless satisfied from our reading of the record that the interests of justice so require. Augustin v. Bank Bldg. & Equip. Corp. , 44 N.J. Super. 242, 243 (App. Div. 1957); Donofrio v. Haag Bros., Inc. , 10 N.J. Super. 258, 262-3 (App. Div. 1950). We conclude that the County Court's finding that the injury was due to petitioner's back hitting the refrigerator handle is amply supported by credible evidence.
We turn now to respondent's contention that petitioner is not entitled to compensation benefits because she was the initial aggressor. The argument runs that the chef's offensive language was merely a "provocation," not an "aggression" so as to transform him into an aggressor, in the language of Gerard v. American Can Co. , 32 N.J. Super. 310, 315 (App. Div. 1954); Sanders v. Jarka Corp. , 1 N.J. 36 (1948). Petitioner having struck the first blow, she cannot, within the direct holdings of Merkel v. T.A. Gillespie Co., Inc. , 10 N.J. Misc. 1081, 162 A. 250 (Sup. Ct. 1932), and Lindsay v. Hoffman Beverage Co. , 19 N.J. Misc. 356, 19 A. 2 d 824 (W.C.B. 1941), have compensation. Respondent claims that this view is strengthened by what was said in Cierpial v. Ford Motor Co. , 16 N.J. 561, at page 566 (1954):
"Where the assault is the result of horseplay, Hulley v. Moosbrugger , 88 N.J.L. 161 (E. & A. 1915); Mountain Ice Co. v. McNeil , 91 N.J.L. 528 (E. & A. 1917); or where the assault was actuated by personal causes, Yoshida v. Nichols , 12 N.J. Misc. 197 (Sup. Ct. 1934); Giles v. W.E. Beverage Co. , 133 N.J.L. 137 (Sup. Ct. 1945), affirmed 134 N.J.L. 234 (E. & A. 1946); or where the injured employee is the aggressor, Merkel v. T.A. Gillespie Co., Inc. , 10 N.J. Misc. 1081 (Sup. Ct. 1932); or where the employee provokes the assault, Lindsay v. Hoffman Beverage Co. , 19 N.J. Misc. 356 (Dept. of Labor 1941), compensation is properly denied." (Italics respondent's.)
It should immediately be noted that the statement about non-recovery where the claimant is the aggressor was dictum.
Respondent does not deny that the accident arose "in the course of" the employment, but strongly urges that it did not arise "out of" the employment.
We are of the opinion that petitioner's injury arose out of her employment, within the liberal interpretation given the Workmen's Compensation Act by such cases as Sanders v. Jarka Corp. , above, 1 N.J. 36 (1948); Gargiulo v. Gargiulo , 13 N.J. 8 (1953); Green v. DeFuria , 19 N.J. 290 (1955); and particularly Secor v. Penn Service Garage , 19 N.J. 315 (1955), affirming 35 N.J. Super. 59 (App. Div. 1955). A compensable accident arises out of the employment when the risk is "reasonably incident" thereto. Bryant, Adm'x., v. Fissell , 84 N.J.L. 72, 76 (Sup. Ct. 1913); Belyus v. Wilkinson, Gaddis & Co. , 115 N.J.L. 43, 47 (Sup. Ct. 1935), affirmed 116 N.J.L. 92 (E. & A. 1936). It has repeatedly been said that if the employment is a contributing cause, the ...