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McKenzie v. Brixite Manufacturing Co.

Decided: May 24, 1960.

JOHN MCKENZIE, PETITIONER-RESPONDENT,
v.
BRIXITE MANUFACTURING CO., RESPONDENT-APPELLANT



Price, Sullivan and Foley. The opinion of the court was delivered by Foley, J.A.D. Sullivan, J.A.D. (dissenting).

Foley

[61 NJSuper Page 464] Petitioner was awarded a judgment in the Workmen's Compensation Division which was affirmed by the County Court. Respondent appeals.

McKenzie was employed by the respondent as a "granule mixer." He testified that on May 14, 1957, as he was passing a fellow employee, Walter Johnson, who was engaged in scraping hot asphalt from a bucket, he touched Johnson on the shoulder whereupon Johnson turned about and struck him on the right forearm with the result that the hot scraper burned him. The version of the affair offered by respondent was quite different. Johnson testified as follows:

"Q. Do you remember a happening involving yourself and Mr. John McKenzie? A. I beg your pardon?

Q. Do you remember something happening this day between yourself and Mr. John McKenzie? A. Well, there was no kind of words or nothing.

The Deputy Director: Do you remember this happening?

The Witness: Yes, I remember.

Q. Will you please tell us about it?

The Deputy Director: What happened?

The Witness: I don't know exactly what date it was on or not. But at the time we were working, and I went and got a bucket of asphalt. I had poured the asphalt in the tank, and Mr. McKenzie came by --

Mr. Feinberg: Who?

The Witness: Mr. McKenzie; John McKenzie; and as I was scraping the bucket out of the asphalt, he came by and goosed me.

And I swung around with the scraper and hit it on his hand.

Q. Did he touch you on the shoulder, Mr. Johnson? A. No, not on the shoulder. I don't know nothing about it.

The Deputy Director: Stand up and show me exactly where he goosed you?

The Witness: Right here (indicating).

The Deputy Director: Turn around. I can't see it from there. Show me where?

The Witness: Right here (indicating).

The Deputy Director: He now points to the mid-buttock area, where the anus is located."

John Miller, another employee, testified:

"Q. Mr. Miller, do you remember the incident occurring on approximately May 14th, 1957 involving Mr. Johnson and Mr. McKenzie? A. Say that again, please?

Q. Do you remember something happening involving Mr. McKenzie and Mr. Johnson in about May of 1957; May 14th? A. No, I don't.

Q. Do you remember when Mr. McKenzie was burned on ...


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