Crotty v. Driver Harris Co.

• Decision Date: 17 February 1958
• Docket Number: A--651--56
• Citation: 139 A.2d 126,49 N.J.Super. 60
• Parties: Letitia CROTTY, Petitioner-Respondent, v. DRIVER HARRIS CO., Respondent-Appellant. Docket . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 60

49 N.J.Super. 60

139 A.2d 126

Letitia CROTTY, Petitioner-Respondent, v. DRIVER HARRIS CO., Respondent-Appellant.

Docket A--651--56.

Superior Court of New Jersey Appellate Division.

Argued Nov. 18, 1957.

Decided Feb. 17, 1958.

Edward B. Meredith, Trenton, argued the cause for appellant.

Thomas J. Brett, Newark, argued the cause for respondent (O'Brien, Brett & O'Brien, Newark, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Respondent company appeals from a County Court judgment reversing the dismissal by the deputy director in the Workmen's Compensation Division of petitioner's dependency claim petition and awarding her compensation for the death of her husband, James Crotty. Crotty was murdered by his co-worker Williams on the afternoon of October 8, 1954 in what is described as the brick shed located on the company's premises. The motive was robbery, Williams having taken from his victim the proceeds of his pay check received and cashed earlier that day. Williams was convicted of murder and sentenced to life imprisonment.

I

Appellant attacks the allowance of an award on the ground that the County Court was 'conclusively bound by the stipulations of fact and may not base a judgment upon conjecture or inference directly in conflict with the agreed facts.' This is a misconception of what happened before the deputy director. The only stipulated facts were the murder, the motive for the crime, the conviction, and the physical layout of the premises as shown on a plan and survey of the Driver Harris foundry. Beyond this the parties, by their counsel, merely agreed that a lengthy trial be avoided by submitting to the deputy director a succinct statement of what their respective witnesses would have testified to if called. The facts and the reasonable inferences to be drawn therefrom were thus presented for determination as if the case had been fully tried.

The stipulated testimony discloses the following undisputed facts. Crotty, then 71 years old, was employed at the Driver Harris foundry as stock clerk. His duties were confined to the supplies in the stock room located in the basement of the foundry and any materials in the yard belonging to his department. He had no immediate duties connected with or requiring him to go into the brick shed which adjoined the foundry, the walking distance from foundry door to shed being 50 feet on a right-angle course. However, his work did involve checking the sand storage bins located next to the shed and which were under his jurisdiction.

Crotty was allowed, under company policy, 'to leave the stock room and go out for air or to take a break * * * when he felt like it.' Three fellow employees would have testified that Crotty 'did a lot of wandering in and about the foundry on occasions, that he wasn't confined strictly to his tool crib or stock room.' The foundry manager said he personally had no knowledge of decedent going into the shed. The foundry foreman, one of Crotty's supervisors, would have testified that he did not know that Crotty was in the shed. And the shop steward would have said that he personally had no knowledge of why Crotty went into the brick shed and never knew of his using that place.

Crotty had cashed his pay check in a tavern at 11:30 that morning. Williams and one Valentine were seen in the shed between 12:10 and 12:30 drinking wine, but Crotty was not with them. The foreman saw Crotty in the foundry at 2 P.M. According to Valentine and another employee DeBerry, they, together with Crotty and Williams, were in the shed between 2:30 and 2:45 P.M. smoking and talking. They then left the shed and did not see Crotty again until between 3:30 and 3:40 P.M., when they found him lying on the floor of the shed, bleeding and with his head smashed in.

Two co-employees, Smith and Turscik, saw Crotty alive after 2:45 P.M. Smith saw him leave the foundry and go out into the yard at about 3 P.M. Turscik saw Crotty walk by him in the foundry, and a short time later--about 3:45 P.M.--saw him carried back into the foundry on a stretcher. Several employees saw Williams sweeping the foundry floor and yard around 3 P.M., and DeBerry and Valentine both noticed him coming from the shed at about 3:30 P.M. Shortly after that they found Crotty's body there. Williams was seen washing up in the shower room sometime between 3:45 and 4 P.M.

Such was the testimony that would have been adduced by petitioner's witnesses as to the events of that afternoon. Appellant stipulated that its testimony would be in substantial agreement, with the addition that were Valentine and DeBerry to testify as they did at the criminal trial of Williams, they would have said that when they were in the brick shed with Williams and Crotty (I.e., between 2:30 and 2:45 P.M.) they were 'goofing off'--loafing; that they had seen Crotty there on one or more occasions that afternoon, smoking and talking to the others, and that at one time he was 'sitting or stretched out on the pile of bricks in there telling stories.'

II

In his oral opinion the deputy director, after repeating the stipulated testimony almost verbatim, found that Crotty entered the shed sometime between 2:30 and 3 P.M. and remained there until he was murdered. He stated it was 'pure speculation' to say that decedent ever left the shed during that period, so that it could not be said he went there just for a smoke. He specifically found that Crotty remained in the shed 'for an extended period of time'; that decedent, 'for all intents and purposes, deviated from the sphere of his employment and, in essence, abandoned his employment'; and that 'this was not a slight or even casual departure * * * nor is it a momentary or impulsive departure from the course of his employment so as to spell out liability * * *.' Accordingly, he denied compensation and dismissed the claim petition.

The County Court judge, however, took note of testimony which the deputy director had either overlooked or ignored, namely, that Crotty had been seen in the foundry at about 3 P.M. In determining that Crotty's death arose out of and in the course of his employment, Crotty v. Driver-Harris Co., 45 N.J.Super. 75, 131 A.2d 578 (1957), the County Court quoted and applied the comprehensive definition given by Justice Heher in Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43, 47, 178 A. 181 (Sup.Ct.1935), affirmed per curiam 116 N.J.L. 92, 182 A. 873 (E. & A. 1936):

'* * * 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 employe 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. * * *'

The County Court was satisfied that Crotty's murder occurred 'in the course of' his employment. It also found it arose 'out of the employment,' adopting the 'but-for' or 'positional' doctrine and citing Giracelli v. Franklin Cleaners & Dyers, Inc., 132 N.J.L. 590, 42 A.2d 3 (Sup.Ct.1945); Sanders v. Jarka Corp., 1 N.J. 36, 61 A.2d 641 (1948); Cole v. I. Lewis Cigar Mfg. Co., 3 N.J. 9, 68 A.2d 737 (1949); Gargiulo v. Gargiulo, 13 N.J 8, 97 A.2d 593 (1953), affirming 24 N.J.Super. 129, 93 A.2d 598 (App.Div.1952); Howard v. Harwood's Restaurant Co., 40 N.J.Super. 564, 123 A.2d 815 (Cty.Ct.1956), affirmed 43 N.J.Super. 301, 128 A.2d 727 (App.Div.1957), since affirmed 25 N.J. 72, 135 A.2d 161 (1957).

III

We observe preliminarily that the guiding principle on appellate review of compensation cases is that we must give great weight to the judgment of the County Court. Although this court has the power to make independent findings of fact, we do not exercise that power unless our study of the record indicates that the interests of justice plainly call for reversal. Augustin v. Bank Building and Equipment Corp., 44 N.J.Super. 242, 243, 130 A.2d 70 (App.Div.1957); Martin v. Snuffy's Steak House, 46 N.J.Super. 425, 431, 134 A.2d 789 (App.Div.1957). But, as was said in Ricciardi v. Marcalus Mfg. Co., 47 N.J.Super. 90, 101, 135 A.2d 339 (App.Div.1957), certification granted 25 N.J. 405, 136 A.2d 677 (1957), such a conclusion ordinarily is not tenable where there is substantial evidence to support the findings underlying the County Court judgment.

We do not have here the usual case where the deputy director saw and heard the witnesses, so that the question of credibility is not posed. Further, the deputy director's conclusion that Crotty never left the shed is patently erroneous. The inferences he drew were all based on this significant error and are therefore defective. Contrary to petitioner's argument, the County Court's findings did not depart from what is erroneously described by counsel as stipulated facts, but are all based on legitimate inferences from the stipulated testimony.

As an example of appellant's erroneous characterization of the record, it is asserted that it was stipulated that the only reason for Crotty's presence in the shed was to loaf or 'goof off,' and that he was 'sitting or stretched out on a pile of bricks in there telling stories.' But that is not the case; all we have is that Valentine and DeBerry would have so alleged had they testified as they did at the criminal trial. Such testimony might,...