Belyus v. Wilkinson, Gaddis & Co.

• Decision Date: 04 April 1935
• Docket Number: No. 204.,204.
• Citation: 178 A. 181
• Parties: BELYUS v. WILKINSON, GADDIS & CO. et al.
• Court: New Jersey Supreme Court

178 A. 181

BELYUS

v. WILKINSON, GADDIS & CO. et al.

No. 204.

Supreme Court of New Jersey.

April 4, 1935.

[Copyrighted material omitted.]

Certiorari to Court of Common Pleas, Essex County.

Proceeding by Anna Belyus to recover compensation under the Workmen's Compensation Act for the death of Michael Belyus, employee, opposed by Wilkinson, Gaddis & Company, employer. To review an adverse judgment of the Essex County Court of Common Pleas, entered by John H. Scott, clerk thereof, on appeal from an award of compensation by the Workmen's Compensation Bureau, claimant brings certiorari.

Judgment reversed, and award affirmed.

Argued October term, 1934, before HEHER and PERSKIE, JJ.

Samuel J. Kaufman, of Newark, for prosecutrix.

Edwin Joseph O'Brien, of Newark, for respondent.

HEHER, Justice.

On August 4, 1925, Michael Belyus, an employee of Wilkinson, Gaddis & Co., while upon his employer's premises, suffered burns which resulted in his death two days later. The jurisdiction of the Workmen's Compensation Bureau was invoked by his dependents; and it was there determined that his death resulted from an accident which arose out of and in the course of his employment. The compensation provided by the act was awarded. P. L. 1911, p. 134, as amended, Comp. St. Supp. 1924, § **236—1 et seq., Comp. St. Supp. 1930, §§ **236—13, **236—58. On appeal, the determination of the Essex common pleas was that the prosecutrix had not sustained the burden of proving an injury by accident arising out of the employment This is the decisive question.

These are the circumstances: The deceased had been employed as a stableman by the defendant corporation for upwards of thirty years. Some four months before the fatal accident befell him, the corporation's horse-drawn equipment was supplanted by motor vehicles. Decedent was unfitted for service in the new scheme of things. He was illiterate and without mechanical knowledge. His had been the menial service of a stableman; and while it may be true that there was little for a man of his limited capacity to do after this change was effected, he was continued in the company's employ. It may well be that the principal consideration for his retention was a sense of gratitude for long and faithful service. The fact is, however, he was expected to do the things of which he was capable. And being naturally desirous of rendering service for the weekly stipend paid to him, he undertook, with the knowledge and acquiescence of his employer, to render such services as were within his power. For instance, the employer admits that he was on occasions called upon to cleanse the chassis of a motor vehicle, using a mixture of gasoline and kerosene provided for that purpose. On the morning of the fatal day, he reported for work at 7:15 a. m., as usual. He was seen at that hour, or shortly thereafter, in the garage. (Between 9:30 and 10 a. m., he was observed in the stable, directly across the street, enveloped in flames. A pail was found inside the building, about 100 feet from the doorway, containing a burning liquid that was unquestionably gasoline, or a mixture of that liquid and kerosene. The pail was close to a brick wall inclosing the furnace room. The proofs show that the furnace was not then in use; nor was anything discovered in the room that would account for the ignition of the content of the pail.

There was no evidence tending to show what decedent was doing at the time his clothing caught fire, except that given by one Stewart then an employee of the defendant corporation, who testified that decedent, while "in flames and very much excited," said that "he was washing a pair of pants." A leading question put to the witness brought the reply that it was "the little boy's pants." The deceased was inside the stable when he found him in flames, coming "from out of another room," The witness called to another employee, one Helwig, for assistance; and it is significant that, while he was certain he and Helwig reached decedent at "almost approximately the same time," he would not say that Helwig was present when decedent made the asserted statement. He reiterated that, at this time, the deceased was unquestionably in severe pain—he "just merely groaned"—and that he (the witness) "was very much excited." He did not see the pail of burning liquid; it was in the room whence decedent came. Helwig, although called as a witness by his employer, as well as by prosecutrix, gave no testimony relating to his ministration of aid to the deceased; nor did he testify to any statement made by the decedent.

There was no testimony tending to corroborate the claim that decedent, at the time in question, was engaged in business of his own, i. e., the washing of his boy's pants. No remnant of such a garment was found; and decedent's wife testified that her husband was not in possession of one belonging to their boy, who was then fourteen years of age. The fire in the pail was extinguished by employees of the defendant corporation. Helwig, called as a witness by the prosecutrix, described decedent as a "stableman." In reply to the question as to whether decedent made any statement after he reached him, Helwig said: "No statement at all, but all he was doing was groaning, he told me to get something to put on to cool him off, I put him in there to get his clothes off, such as he had on." Helwig was the foreman of the garage. As the deputy commissioner observed, neither the buckle nor a button was found to indicate that decedent was engaged in cleaning the mentioned article of wearing apparel when his clothes became ignited; there was no tangible evidence of the fact He remarked: "Without questioning the veracity of the sole witness for the respondent, and laboring under the stress of strong excitement, it is quite possible that he misunderstood these few words of Belyus under the extraordinary circumstances."

Whether this fatality arose out of and in the course of the employment is a mixed question of law and fact. Of course, the employer is not an insurer of his workman against all misfortune suffered in the course of his employment; the obligation imposed by section 2 of the statute is limited to accidents arising from or growing out of the risks peculiar to the nature of the work within the Scope of the workman's employment, or incidental thereto, and accidents to which the employee is exposed in a special degree by reason of such employment. The words "arising out of and "in the course of are used conjunctively. In order to satisfy the statute, both elements must coexist; their concurrence is a prerequisite to a right of action thereunder. As was said by Chief Justice Rugg in McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, it is not easy "to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms." The words "out of" refer to the origin or cause of the accident; the words "in the course of," to the time, place, and circumstances under which the accident takes place. An accident arises "in the course of the employment, when it occurs (a) within the period of the employment; and (b) at a place where the employee may reasonably be; and (c) while he is reasonably fulfilling the duties of the employment, or doing something incidental to it. It arises "out of" the employment when the risk of such an occurrence is reasonably incident to the employment Such a risk is one that grows out of or is connected with what a workman has to do in fulfilling his contract of service. And a risk may be incident to the employment when it is either an ordinary risk, directly connected therewith, or one extraordinary in character, indirectly connected with the employment because of its special nature. If the danger were one to which the employee was exposed because of the nature of his employment, the accident arose out of the employment. In fine, there must be a causal connection between the conditions under which the work is required to be done and the resulting injury. The injury must have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 A.. 1007, L. R. A. 1916C, 1203; Bryant, Adm'x, v. Fissell, 84 N. J. Law, 72, 86 A. 458; Hall v. Doremus, 114 N. J. Law, 47, 175 A. 369; Dietzen Co. v. Industrial Board, 279 Ill. 11, 116 N. E. 684, Ann. Cas. 1918B, 764; Ryerson v. A. E. Bounty Co., 107 Conn. 370, 140 A. 728, 729.

While the prosecutrix has the affirmative of the issue, the burden of proof is sustained if the evidence be such as to induce a. reasonable man to draw the inference that the injury arose out of and in the course of the employment Such a conclusion in the instant case is not based upon mere conjecture or surmise; it is supported by logical reasoning from established facts. The circumstances shown justify inferences that bring this fundamental fact within the realm of probability. The accident occurred within the period of the employment, and at a place where the employee might reasonably be in the performance of his contract of service. And there is no basis in the proofs for a finding that the injury in question was intentionally self-inflicted, or the result of decedent's intoxication. The presumption is to the contrary. The burden of proof of such a statutory bar to compensation is, by the express requirement of paragraph 7, section 2, of the act (Comp. St Supp. 1924, § **236—7), placed upon the employer. The remaining hypotheses are: The decedent, at the time and place in question, was engaged either in his master's business or his own. There is no presumption that he was engaged in his own business. He was upon his employer's premises at a time when he was required to render service; and it is reasonably to be presumed that, in these circumstances, he was there on Ms master's...