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Johnson v. Walter Kidde Constructors Inc.

Decided: February 23, 1962.

VAN DOREM JOHNSON, INDIVIDUALLY AND AS GUARDIAN FOR JUNE JOHNSON, JOSEPH JOHNSON, JR. AND MELVIN BROWN, PETITIONER-APPELLANT,
v.
WALTER KIDDE CONSTRUCTORS, INC., RESPONDENT-RESPONDENT



Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.

Price

June Johnson and Joseph Johnson, Jr., twin infant children of Joseph Johnson, in an appeal prosecuted by their mother Van Dorem Johnson as guardian ad litem , seek to set aside a judgment of the County Court reversing an award of compensation dependency benefits entered in their favor in the Division of Workmen's Compensation as the result of the death of their father, a resident of this State. Johnson v. Walter Kidde Const., Inc. , 67 N.J. Super. 406 (Cty. Ct. 1961).

The Division determined that his death on February 10, 1959 resulted from a heart attack suffered by decedent at Idlewild International Airport, Long Island, New York,

while he was working there on the previous day as a laborer for respondent Walter Kidde Constructors, Inc. (hereinafter Kidde). Moreover, finding that the attack arose out of and in the course of such employment, and that the employment had its contractual origin in New Jersey, the Division held the death to be compensable.

The mother of the children, who was the "common law wife" of decedent, originally by her petition had also sought compensation benefits for herself and for a minor child Melvin Brown, but the Division had denied both claims. Her individual claim was denied because of her inability to establish a lawful marriage with decedent. The claim of Melvin Brown for compensation benefits, as an alleged statutory dependent of decedent, was denied because the proofs "did not clearly establish" that decedent was his father. The Division determined, however, that the proofs did establish that June Johnson and Joseph Johnson, Jr., aforesaid, were the "natural children of the decedent, * * * were part of his household at the time of his death," and qualified "under R.S. 34:15-13 as total dependents."

On appeal to the County Court Kidde contended that (a) the proofs demonstrated that the contract of employment arose in New York and therefore the Division erred in concluding that it had jurisdiction to make the challenged award; and (b) the heart attack suffered by decedent on February 9, 1959, and his death the following day, were not work-connected but were due solely to pre-existing heart disease.

The County Court made no determination with reference to the latter contention but rested its reversal of the Division's award on the single ground that neither the Division nor it had any jurisdiction of plaintiff's claim because at the time of the aforesaid heart attack "the deceased was in the respondent's employ under a separate and distinct employment agreement entered between the parties in the State of New York." (67 N.J. Super. , at p. 409.) However, in resisting petitioner's present appeal from the County

Court judgment, respondent not only supports the court's determination that the Division had no jurisdiction of the claim but reiterates its contention that decedent's heart attack and ensuing death were not work-connected. No question of the propriety of the Division's aforesaid determination of dependency is involved on this appeal.

Initially, we consider the jurisdictional question, the aforesaid resolution of which by the County Court is sharply challenged by appellant as wholly unjustified by the proofs and the applicable law. To resolve that issue, as well as the issue of the alleged connection between decedent's employment and his death, hereinafter considered, we have as a reviewing court analyzed the evidence revealed by the record before us in order to make our own determination and evaluation of the facts, giving "due regard to the opportunity of the hearer of the evidence to judge of the credibility of the witnesses," and according "full and respectful consideration of the views expressed, on both fact and law, by the Division" and by the County Court. Russo v. United States Trucking Corp. , 26 N.J. 430, 435 (1958); Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 447-448 (1958); Epps v. Gold , 61 N.J. Super. 355, 362 (App. Div. 1959), affirmed 32 N.J. 344 (1960); Pellegrino v. Monahan McCann Stone Co. , 61 N.J. Super. 561, 564 (App. Div. 1959), affirmed 33 N.J. 73 (1960).

We proceed to an assessment of the proofs revealed by the record before us.

Respondent's answers to interrogatories, received in evidence, disclosed that decedent had been employed by respondent in New Jersey for more than a decade preceding February 9, 1959, interrupted only by intervals, usually of short duration, between respondent's construction jobs. The longest interval was approximately six months, the shortest a few hours. Respondent's answers to interrogatories further showed that decedent had first been employed by Kidde on September 11, 1945 and, commencing with employment by it on September 16, 1949 at Bloomfield, N.J. (the earliest

date for which it had detailed employee work records available), decedent during the succeeding years had worked in the capacity of a laborer for respondent. The answers also revealed that, with the exception of two successive days in 1949, decedent's work for Kidde during the entire ten-year period, and until the commencement of his Idlewild work on February 2, 1959, had been on construction jobs in New Jersey. Moreover, the record is barren of any proof that during those years decedent had worked for any one other than respondent. The two jobs immediately preceding his work at Idlewild were on major construction projects conducted by respondent at Newark in this State, his work on the latter of those jobs terminating, as disclosed by the testimony of respondent's accountant, on January 21, 1959.

In passing we note that the County Court's opinion contains the statement (67 N.J. Super. , at p. 407), that "between the last employment in New Jersey on the Prudential project and his [decedent's] re-employment in New York State, a period of almost two months had elapsed, during which time there was no employment relationship between the parties." A comparable statement was made during the hearing in the Division and also appeared in respondent's answers to interrogatories, in which it was stated that December 12, 1958 was the date of the termination of the New Jersey projects. However, it was finally resolved at the Division hearing that only 12 days, including two Saturdays and two Sundays, intervened between decedent's last day's work at Newark on January 21, 1959 and his initial work at Idlewild on February 2, 1959. We mention the county judge's specific reference to the time interval between the Newark and Idlewild jobs because, although it is apparent that the mistaken reference to that interval was not a controlling factor in his determination, the fact that he emphasized the time interval indicates that he felt it was of some importance.

Allusion should be made to one further phase of the proofs, bearing on decedent's relationship with Kidde, and with

reference to which phase extensive testimony was taken in the Division. Petitioner testified that near the end of January 1959 she received a telephone call at her home from someone who, she believed, was a foreman for respondent; that on being advised that decedent was not then at home, the same person again called on the same day, spoke with decedent, and on the "very next Monday" (February 2), decedent left for the Idlewild Airport construction project in company with a co-worker, one General Green, who, with decedent, had been employed by Kidde on the aforesaid Newark projects. There is no dispute that both men commenced their work at Idlewild on that day and that both of them worked there daily until February 9 when Johnson, as stated, suffered the heart attack. Respondent's foreman denied that he had summoned decedent to Idlewild by telephone.

Although not relying on the disputed telephone conversation as the principal basis for his finding that the Division had jurisdiction of petitioner's claim, the judge in compensation held that the evidence justified a finding, which he made, that decedent's aforesaid telephone conversation while at his Newark home (followed by his act in going to Idlewild on Monday, February 2), constituted his acceptance in New Jersey of the job opportunity at Idlewild, thereby fixing the situs of the contract in this State. The County Court made no reference whatever to the foregoing proofs or to the Division's conclusion with reference thereto. On appeal, however, petitioner stresses that evidence and the propriety of the Division's aforesaid finding as an "alternative jurisdictional contention."

As to petitioner's last-mentioned contention we are of the opinion that the finding (made by the judge in compensation) that the employment contract arose in New Jersey as a result of the controverted telephone call, was not sustained by the greater weight of the credible evidence. The record is barren of any competent evidence ...


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