Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Respondent company appeals from a County Court judgment reversing the dismissal by the deputy director in the Workmen's Compensation Division of petitioner's dependency claim petition and awarding her compensation for the death of her husband, James Crotty. Crotty was murdered by his co-worker Williams on the afternoon of October 8, 1954 in what is described as the brick shed located on the company's premises. The motive was robbery, Williams having taken from his victim the proceeds of his pay check received and cashed earlier that day. Williams was convicted of murder and sentenced to life imprisonment.
Appellant attacks the allowance of an award on the ground that the County Court was "conclusively bound by the stipulations of fact and may not base a judgment upon conjecture or inference directly in conflict with the agreed facts." This is a misconception of what happened before the deputy director. The only stipulated facts were the murder, the motive for the crime, the conviction, and the
physical layout of the premises as shown on a plan and survey of the Driver Harris foundry. Beyond this the parties, by their counsel, merely agreed that a lengthy trial be avoided by submitting to the deputy director a succinct statement of what their respective witnesses would have testified to if called. The facts and the reasonable inferences to be drawn therefrom were thus presented for determination as if the case had been fully tried.
The stipulated testimony discloses the following undisputed facts. Crotty, then 71 years old, was employed at the Driver Harris foundry as stock clerk. His duties were confined to the supplies in the stock room located in the basement of the foundry and any materials in the yard belonging to his department. He had no immediate duties connected with or requiring him to go into the brick shed which adjoined the foundry, the walking distance from foundry door to shed being 50 feet on a right-angle course. However, his work did involve checking the sand storage bins located next to the shed and which were under his jurisdiction.
Crotty was allowed, under company policy, "to leave the stock room and go out for air or to take a break * * * when he felt like it." Three fellow employees would have testified that Crotty "did a lot of wandering in and about the foundry on occasions, that he wasn't confined strictly to his tool crib or stock room." The foundry manager said he personally had no knowledge of decedent going into the shed. The foundry foreman, one of Crotty's supervisors, would have testified that he did not know that Crotty was in the shed. And the shop steward would have said that he personally had no knowledge of why Crotty went into the brick shed and never knew of his using that place.
Crotty had cashed his pay check in a tavern at 11:30 that morning. Williams and one Valentine were seen in the shed between 12:10 and 12:30 drinking wine, but Crotty was not with them. The foreman saw Crotty in the foundry at 2 P.M. According to Valentine and another employee DeBerry, they, together with Crotty and Williams, were
in the shed between 2:30 and 2:45 P.M. smoking and talking. They then left the shed and did not see Crotty again until between 3:30 and 3:40 P.M., when they found him lying on the floor of the shed, bleeding and with his head smashed in.
Two co-employees, Smith and Turscik, saw Crotty alive after 2:45 P.M. Smith saw him leave the foundry and go out into the yard at about 3 P.M. Turscik saw Crotty walk by him in the foundry, and a short time later -- about 3:45 P.M. -- saw him carried back into the foundry on a stretcher. Several employees saw Williams sweeping the foundry floor and yard around 3 P.M., and DeBerry and Valentine both noticed him coming from the shed at about 3:30 P.M. Shortly after that they found Crotty's body there. Williams was seen washing up in the shower room sometime between 3:45 and 4 P.M.
Such was the testimony that would have been adduced by petitioner's witnesses as to the events of that afternoon. Appellant stipulated that its testimony would be in substantial agreement, with the addition that were Valentine and DeBerry to testify as they did at the criminal trial of Williams, they would have said that when they were in the brick shed with Williams and Crotty (i.e. , between 2:30 and 2:45 P.M.) they were "goofing off" -- loafing; that they had seen Crotty there on one or more occasions that afternoon, smoking and talking to the others, and that at one time he was "sitting or stretched out on the pile of bricks in there telling stories."
In his oral opinion the deputy director, after repeating the stipulated testimony almost verbatim, found that Crotty entered the shed sometime between 2:30 and 3 P.M. and remained there until he was murdered. He stated it was "pure speculation" to say that decedent ever left the shed during that period, so that it could not be said he went there just for a smoke. He specifically found that Crotty
remained in the shed "for an extended period of time"; that decedent, "for all intents and purposes, deviated from the sphere of his employment and, in essence, abandoned his employment"; and that "this was not a slight or even casual departure * * * nor is it a momentary or impulsive departure from the course of his employment so as to spell ...