Bowen v. Olesky
| Decision Date | 06 February 1956 |
| Docket Number | No. A--76,A--76 |
| Citation | 20 N.J. 520,120 A.2d 461 |
| Parties | William W. BOWEN, Petitioner-Appellant, v. Samuel OLESKY, Respondent-Respondent. |
| Court | New Jersey Supreme Court |
John E. Neville, Summit, argued the cause for appellant.
Isidor Kalisch, Newark, argued the cause for respondent.
The opinion of the court was delivered by
The petitioner appeals from a judgment of the Appellate Division denying him workmen's compensation. Bowen v. Olesky, 37 N.J.Super. 19, 116 A.2d 818 (1955). An award had been granted in the Compensation Division but was set aside on appeal to the County Court. There was a dissent in the Appellate Division, making the appeal here a matter of right. R.R. 1:2--1(b); N.J.Constitution, 1947, Art. VI, Sec. V, par. 1(b).
The petitioner was employed by respondent as a butler, handy man and chauffeur. In addition to his salary, he received room and board. The room he occupied was located immediately over the garage on the second floor off the servants' stairway and separated from his employer's family sleeping quarters by a corridor.
On the Saturday night preceding the events with which we are presently concerned, he stayed at the home of a married woman, not his wife, whom he described as a girl friend. The following day, Sunday, January 25, 1953, he was with this same friend and his relatives, returning to his employer's home at about 11:15 P.M.
The employer's daughter testified that on Monday morning at about 12:30 A.M. she heard sounds coming from the kitchen and the garage area of the house and thought it was her brother returning. She waited for him, but when he did not appear she retired. The brother testified he arrived home at 2 A.M. and found nothing unusual and he too retired to his room.
On the following morning one of the maids heard the petitioner going to the bathroom and at about 8 A.M. she opened the door to his room and discovered him lying on the bed covered with blood. There was blood everywhere about the room, the mattress, the bed fixtures, the floor and even the walls to within a foot or so of the ceiling. The maid asked him what had happened and he answered he had fallen, requesting her to get something to wipe the blood from his face. She ran back, informed her mistress and then returned with a basin to help the petitioner wash the blood off. She saw a bloody handkerchief on the floor and his broken false teeth on the bed table.
Mrs. Olesky, for whom the petitioner worked, asked him what had occurred and he replied he had fallen. Being conscious of the fact that he could not have suffered the serious injuries which he appeared to have from a fall, she called the police.
When the police arrived, they queried the petitioner, who again said he had fallen. He at first had some difficulty in recounting the events, but after a few minutes his answers were fairly coherent. For instance, he informed them he had spent Saturday night and Sunday with his girl friend, and gave other information which apparently was quite correct.
The examination by the police revealed there was no blood anywhere about the house except in the petitioner's room and that Bowen's clothes were strewn on the floor but had no blood stains on them.
The police, from what they were able to observe and from the petitioner's statement, tentatively concluded he had been attacked in his room after he had removed his clothes, and by the degree of blood which was spattered about the room, surmised there was a struggle between Bowen and his assailant.
Some time that day Bowen told the police that his wallet, keys, watch and ring were missing.
Bowen on the witness stand testified that upon his return to his employer's home on Sunday night he had undressed and gone to bed. He remembered nothing else until he awoke in the hospital on Tuesday night to discover he had a ruptured right eyeball, an extensive skull fracture and many bruises and contusions. He could not remember talking to the police officers or to anyone else on Monday morning and had no recollection of anyone having attacked him.
He denied on cross-examination he ever had any visitors in his room prior to the night in question, and more specifically denied he had ever entertained women there.
One of the maids in the household, however, testified that at about 5 A.M. on Wednesday before the attack she heard two people descending the stairs from Bowen's room and one person returned shortly thereafter.
About two months after the occurrence of the incident, when the maid was cleaning Bowen's room, she found a pair of women's panties in his laundry basket.
The petitioner sought compensation upon the theory that he was the victim of an assault by someone who had entered his employer's home with intent to steal, and the thief, coming up the kitchen stairs, entered the petitioner's room by accident. When the petitioner awakened, the thief became alarmed and attacked him, taking his wallet, keys, watch and ring, and fled without entering any other room in the house.
Supporting this theory, the petitioner points to the fact that the kitchen window was found open the following morning, suggesting this might have been the way the would-be burglar entered the house.
If the petitioner's facts and theory be accepted, there is sufficient authority justifying an award. Sanders v. Jarka Corp., 1 N.J. 36, 61 A.2d 641 (1948); Giracelli v. Franklin Cleaners & Dyers, 132 N.J.L. 590, 42 A.2d 3 (Sup.Ct.1945); Cole v. I. Lewis Cigar Mfg. Co., 3 N.J. 9, 68 A.2d 737 (1949); Gargano v. Essex County News Co., 129 N.J.L. 369, 29 A.2d 879 (Sup.Ct.1943). However, it was his obligation to establish by a preponderance of the believable testimony that he suffered an accident arising out of and in the course of his employment.
Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 538, 6 A.2d 213, 216 (Sup.Ct.1939).
See also Green v. Simpson & Brown Const. Co., 14 N.J. 66, 69, 101 A.2d 10 (1953); Bobertz v....
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