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Bermudez v. Bell Container Corp.

Decided: April 11, 1961.

JESUS BERMUDEZ, PETITIONER-RESPONDENT,
v.
BELL CONTAINER CORP., RESPONDENT-APPELLANT



Brown, J.c.c.

Brown

There is no essential disagreement between the parties about the facts. The petitioner, Jesus Bermudez, was assaulted by Peter J. Congro, a fellow employee, on February 3, 1959 at the respondent's premises. He suffered personal injuries.

Bermudez was a union shop steward for Local 65. As such he was spokesman for the union "for anything." He was empowered to issue or withhold the "union book" by which, after probation, a new member would enjoy the union privileges. Congro had served the necessary period of probation, but Bermudez refused to sign the book because, in his view, Congro was "discriminating against the Spanish neighborhood."

The altercation exploded out of this situation. The fight "was on account of the book."

The compensation judge found that the issuance of "books" was a function related to a "contract" between the union and the respondent, and that the petitioner's responsibilities in this area exposed him to the injuries which arose out of and in the course of his employment because the contract was beneficial to the respondent and its employees.

As the respondent points out in its brief, there is no express proof in the record to support the findings of fact that there was "a contract" and that it "was to the benefit of the employer and of the employees," and "that certain rights and certain duties flowed therefrom." Assuming that these circumstances are fairly implied in the testimony, the critical question is whether the assault arose out of and in the course of the employment.

For compensation here there must be a

"* * * causal connection between the assault and the conditions attending the transaction of the employer's business." Geltman v. Reliable Linen & Supply Co. , 128 N.J.L. 443, 450 (E. & A. 1942).

Regardless of the liberal policy with which the Workmen's Compensation Law, R.S. 34:15-1 et seq. , should be administered judicially, the touchstone of liability must nevertheless be proof of a work-connected disability. The employee has the burden of establishing that his injury has resulted from a risk "reasonably incident" to his employment. Tocci v. Tessler & Weiss, Inc. , 28 N.J. 582 (1959). And

"A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service." Cierpial v. Ford Motor Co. , 16 N.J. 561, 564 (1954).

There is no dispute that the foregoing state correctly the applicable propositions of law. The decision depends upon ...


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