Goldmann, Conford and Haneman.
[59 NJSuper Page 532] The Essex County Court affirmed a denial of workmen's compensation in an opinion by Judge Lyons to the following effect:
"On this appeal the petitioner questions the Workmen's Compensation Division's dismissal of his claim for disability arising from an assault and battery committed upon him for entirely personal reasons by someone foreign to the employment.
The story of the events constituting the alleged accident was developed entirely upon the petitioner's case, the respondent having rested after the introduction of medical proofs. A fair appraisement of the testimony of the petitioner and his witness, Gary Naftalis, warrants the following determination of facts.
Petitioner, a college student, about 19 years of age, was a parttime employee in a drug store owned by respondent. Selling merchandise, making deliveries, posting advertising matter on the windows of the store and odd jobs fell within the routine of his duties. On the day in question he was mounted on a ladder, changing the window signs: removing the old signs which were held in place by masking tape and replacing them with new ones. While so engaged, his acquaintance, Naftalis, happened by. The two engaged in conversation. Subsequently, Sam Skuratofsky, petitioner's assailant, came along and he, too, stopped and stood on the sidewalk, at the ladder.
The manner of Skuratofsky's arrival on the scene and the development of events at that time and thereafter are the subjects of diverse accounts by Pittel and Naftalis.
Pittel's testimony is to the effect that Naftalis was telling him about various things that had occurred at Weequahic High School, which Naftalis attended, and that there was included in this recountal the story of a fistic encounter in which someone had been 'beaten up.' Petitioner 'made a few comments about the nature of the person who had committed these particular offenses.' Petitioner said that while this conversation was going on, he was facing the window, his back towards Naftalis, and that he was unaware that the subject of his remarks had 'walked up in the meantime' and was standing alongside the ladder. He did not know Skuratofsky, he said, and he desisted from further remarks when he learned who he was. Skuratofsky is said to have asked whether he was a 'wise guy' and 'looking for trouble,' and these inquiries were followed by Sam's making certain 'insinuations,' which petitioner said he ignored because he was in no mood to 'start any difficulty with him.' Skuratofsky 'insisted on fighting'; Pittel declined the challenge and continued working. Pittel related that he then picked up a razor blade to use in cleaning the window and that Skuratofsky thereupon 'acted as if there was some sort of aggression on my part, and he knocked it out of my hand, which I ignored.' His assailant then pulled him from the ladder, punching him as he did so. Petitioner fell to the ground and was thrashed by Skuratofsky until a policeman arrived and rescued him.
Naftalis's account of events is in a different vein. He related that while he was talking to Pittel, Sam came along on his way from
school. Sam stopped to talk to them and was 'bragging' about how he had started a fight in the hall 'with some kid for no reason at all.' Pittel responded by saying something to the effect that, 'You think you are big because you do something like that'; or, 'you think you are pretty big because you can pick on people.' Sam then invited the petitioner to come off the ladder and fight him. Petitioner replied that he did not want to fight. Sam then pulled him from the ladder and beat him. There is no mention of a razor blade in this witness's account. And it appeared on cross-examination of petitioner that a statement made by him within a month after the alleged accident made no reference to a razor blade, but it did contain the information that Sam 'knocked some masking tape out of my hand and told me to get off the ladder.'
It is patent to me that the truth of the matter is to be found in the recital of Naftalis. That version is strongly favored by probability. Pittel's account appears improbable. It is highly unlikely that on this open sidewalk Skuratofsky should have come upon the scene without notice of either petitioner or Naftalis. And, if his immediate arrival had gone unnoticed, it is not likely that his standing there would have escaped the attention of Naftalis, to say the least. Unlikely, too, is it that Naftalis would then have launched upon or continued with his account of Skuratofsky's fistic feat. He knew Sam. He also knew that Sam was in a 'rotten mood' that day and that the subject of his aggressiveness was not the best channel into which to direct his conversation with Pittel.
As previously indicated, petitioner was close to 19 years of age. He was in freshman class in Rutgers University. He had previously attended Weequahic High School. Naftalis was about 16 years old. Skuratofsky's age is not known, but Pittel 'assumed' that he was a freshman in the high school. The expectable happened when Sam boasted about his fighting exploit. The more mature Pittel took him to task and upbraided him for his conduct. His censorious remarks were taken most unkindly and the eruption ensued.
In resolving the issue of Pittel's credibility I have taken into account his obvious evasiveness in parrying the efforts of counsel, on cross-examination, to inquire into previous automobile accidents in which the petitioner had been ...