Bryant v. Fissell

• Decision Date: 24 March 1913
• Citation: 86 A. 458,84 N.J.L. 72
• Parties: BRYANT et al. v. FISSELL.
• Court: New Jersey Supreme Court

86 A. 458

84 N.J.L. 72

BRYANT et al.

v. FISSELL.

Supreme Court of New Jersey.

March 24, 1913.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Essex County.

Action by Elizabeth Bryant, administratrix, etc., and others against William H. Fissell. Judgment for plaintiff, and defendants bring certiorari. Affirmed.

Argued November term, 1912, before TRENCHARD and MINTURN; JJ.

McCarter & English, of Newark (Conover English, of Newark, on the brief), for prosecutor.

Henry Carless, of Newark, for defendants.

TRENCHARD, J. This writ brings up for review a judgment of the Essex county common pleas court in an action brought by Elizabeth Bryant, administratrix, etc., and widow of Richard Bryant, deceased, on behalf of herself and the next of kin, to recover from Richard Bryant's employer compensation for his death. The action was based upon an implied acceptance by the employer of the provisions of section 2 of the Employer's Liability Act of April 4, 1911 (P. L. p. 136). A judgment in favor of the claimant and against the employer was entered, computed upon the basis allowed by the act, and the employer sued out this writ.

The learned trial judge found, among others, the following matters of fact: "That Richard Bryant, deceased, was on the 25th day of April, 1912, employed by respondent (prosecutor) William H. Fissell as a journeyman carpenter; that on the said 25th day of April, while engaged in his duties as carpenter, in the employ of the respondent (prosecutor), he received injuries by reason of a heavy bar of metal falling upon his head from one of the upper stories of a building being erected at the corner of Market and Beaver streets, in the city of Newark, which said injuries caused the death of the said Richard Bryant; that the falling of the said bar of metal was not caused by any of the employés of the said respondent (prosecutor), but by an employé of some other and independent contractor, who had work to do on said building; that said injury arose out of and was in the course of his employment."

It is conceded that there was legal evidence to warrant such findings of fact; hence they will be accepted in this court. Sexton v. Newark District Telegraph Co., 86 Atl. 451, decided at present term of the Supreme Court.

Paragraph 7 of section 2 of the act provides that: "When employer and employé shall by agreement, either express or implied, as hereinafter provided, accept the provisions of section 2 of this act, compensation for personal injuries to or for the death of such employé by accident arising out of and in the course of his employment shall be made by the employer without regard to the negligence of the employer," etc. The prosecutor's reasons for reversal are embraced in the proposition that the death of Bryant was not caused by "accident arising out of and in the course of his employment." Hitherto the pertinent language of paragraph 7 of our act, "by accident arising out of and in the course of his employment," has not been construed by this court. But the language is identical with the language of the British Workman's Compensation Act of 1906 (6 Edwd. VII, c. 58), and therefore cases in that jurisdiction construing that language in their act will be useful in construing the same language in our own.

To warrant a recovery, it must appear that Bryant's death was caused by (a) an accident, (b) arising out of, and (e) in the course of, his employment. Even though the injury arose out of and in the course of the employment, if it be not an "accident," within the purview of the act. there can be no recovery. Even if there be an accident which occurred "in the course of" the employment, if it did not arise "out of the employment," there can be no recovery; and even though there be an accident which arose "out of the employment," if it did not arise "in the course of the employment," there can be no recovery. Fitzgerald v. Clarke & Son (1908) 2 K. B. 796; Craske v. Wigan (1909) 2 K. B. 635.

The burden of furnishing evidence from which the inference can be legitimately drawn that the death of an employé was caused by "an accident arising out of and in the course of his employment" rests upon the claimant. Barnabus v. Bersham Colliery Co. (1910) 102 L. T. R. 621, 3 B. 216, and on appeal (1910) 103 L. T. R. 513, 4 B. 119, 48 S. L. R. 727.

The question whether or not an injury is an "accident" within the purview of the act is a mixed one of law and fact. Roper v. Greenwood (1900) 83 L. T. 471. When applied to ascertained facts, it is a question of law. Fenton v. Thornley & Co. (1903) A. C. 443, 19 T. L. R. 684.

Within the purview of the act, an "accident" is an unlooked-for mishap or untoward event which is not expected or designed. Fenton v. Thornley & Co. (1903) A. C. 443, 19 T. L. R. 684; Clover, Clayton & Co. v. Hughes (1910) A. C. 242, 26 T. L. R. 359.

In the present case the ascertained facts were that the decedent was killed by "a heavy bar of metal falling upon his head from one of the upper stories" of the building upon which he was at work, and that the falling of the bar was caused by another workman. Clearly such finding justified the conclusion that decedent's death was caused by "an accident" within the purview of the act. It is to be observed that there was no evidence from which it might be inferred that the other workman intentionally caused the bar to fall on the decedent, and the presumption is to the contrary. We are therefore not now concerned with the question whether, when an employé is intentionally injured by another, it may be properly characterized as an accident, as was held in Nisbet v. Rayne and Burn (1910) 2 K. B. 689; it being there said that the occurrence must be judged from the victim's point of view.

It remains to be considered whether the accident arose both "out of and in the course of his employment." For an accident to arise out of and in the course of the employment, it must result from a risk reasonably incidental to the employment. As was said by Buckley, L. J., in Fitzgerald v. Clarke & Son (1908) 2 K. B. 796, 77 L. J. K. B. 1918: "The words 'out of point, I think, to the origin and cause of the accident; the words 'in the course of,' to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words 'out of involves, I think, the idea that the accident is in some sense due to the employment. It must be an accident resulting from a risk reasonably incident to the employment" We conclude, therefore, that an accident arises "in...