Adolph v. Breen Iron Works

• Decision Date: 24 March 1939
• Parties: ADOLPH v. BREEN IRON WORKS et al.
• Court: New Jersey Supreme Court

5 A.2d 310

ADOLPH

v. BREEN IRON WORKS et al.

New Jersey Department of Labor—Workmen's Compensation Bureau.

March 24, 1939.

Proceeding under the Workmen's Compensation Act by Henry Adolph, petitioner, opposed by Breen Iron Works, employer, and New Jersey Manufacturers Casualty Insurance Company, insurance carrier.

Decision in accordance with opinion.

Hymen M. Goldstein, of Newark (David Roskein, of Newark, of counsel), for petitioner.

George E. Meredith, of Trenton, for respondents.

JOHN J. STAHL, Deputy Commissioner.

The undisputed facts as developed in the evidence are essentially as follows:

The petitioner was shop foreman of the employer respondent charged among his duties with the hiring and firing of the men employed in his shop. On May 22d, 1936, he had occasion to lay off, among other men, one Al Marino. This was due to the fact that the work was slowing down and the employer did not require their services. Upon so doing, the employee, Marino, struck the petitioner with his fist, striking his nose. This was followed by a second and subsequent blow, causing the petitioner to fall to the ground. The occasion for this assault, I find to be, was in the fulfillment by the petitioner of his required assigned duties. There is no testimony to indicate that the assault grew out of any personal issue not connected with the employment. As such the assault arose out of and in the course of his employment. I do not feel that a foreman occupies any different status than the ordinary workman. That is, the foreman and the workman are alike, fellow employees, so far as the Compensation Act is concerned. R.S.1937, 34:15-1 et seq. My decision in this case is based upon the fact that it was the petitioner's painful, if not unfortunate, duty to tell the workmen that they were being laid off, and that the company no longer required their services. It seems that this particular individual, Marino, was unable to take his lay-off with good grace, but attempted to retaliate by assaulting the petitioner. Such risk is a danger or peril which the petitioner was exposed to and as such arose out of and in the course of his employment. This is distinguished from the cases where assaults among employees arise out of a personal grudge or ill-feeling for reasons not associated with the employment. It is a risk or danger reasonably contemplated by the employer and arises as a result of his employment. Barrese v. Standard Silk Dyeing Company, 163 A. 439, 10 N.J.Misc. 1290. This case is to be distinguished from the case of Yoshida v. Nichols, 170 A. 824, 12 N.J.Misc. 197, where the assault arose out of ill-feeling between the fellow employees, for reasons unrelated with the employment.

It is not alone sufficient that the injury be received by the employee in the course of his employment, but it must also arise while he was acting within the duties of his employment or in some act incidental thereto. Bryant v. Fissell, 84 N.J. L. 72, 86 A. 458. An accident arises "out of the employment" when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it.

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.

A risk may be "incidental to the employment" when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment. Bryant v. Fissell, 84 N.J.L. 72, 86 A. 458. Under this test, if the injury can be seen to have followed as a natural incident of the work and...