Foley v. Home Rubber Co.

• Decision Date: 11 January 1917
• Citation: 89 N.J.Law 474,99 A. 624
• Parties: FOLEY v. HOME RUBBER CO.
• Court: New Jersey Supreme Court

99 A. 624

89 N.J.Law 474

FOLEY

v. HOME RUBBER CO.

Supreme Court of New Jersey.

Jan. 11, 1917.

Certiorari to Court of Common Pleas, Mercer County.

Proceedings under the Workmen's Compensation Act by Thirza Ann Foley to obtain compensation for the death of Arthur F. Foley, an employé, opposed by the Home Rubber Company, employer. Judgment in the Mercer county court of common pleas for the employer, and the petitioner brings certiorari. Reversed and remanded.

Argued February term, 1916, before PARKER, MINTURN, and KALISCH, JJ.

F. W. Gnichtel, of Trenton, for prosecutrix. Jess & Rogers, of Camden, for respondent.

KALISCH, J. The prosecutrix's husband, Arthur F. Foley, deceased, was in his lifetime in the employ of the respondent as a special traveling salesman and manager of its European trade. In the course of his employment it was necessary to visit the respondent's London office, which was its European headquarters. The deceased engaged passage on the Lusitania, which steamship was listed to steam from the port of New York to Liverpool, on May 1, 1915, under the British flag. The steamer carried passengers and ordinary freight and some cartridges for war use.

There was an American steamer scheduled to steam for a British port under the protection of the American flag on the same day that the Lusitania was due to leave, on which American steamer the deceased might have procured passage, so far as his duties or requirements of his employment were concerned. The respondent did not instruct the deceased on what particular steamer to make the journey, but knew of the fact that the deceased had engaged passage on the Lusitania and offered no objection. On the 7th day of May, 1915, while the Lusitania was within the zone or area which had theretofore been declared the war zone by the German government, she was attacked and torpedoed by a German submarine, which caused the steamship to sink within a few minutes, and the death of the deceased was the result of the sinking of the steamship.

In the court of common pleas of Mercer county, counsel for the respective parties stipulated in writing as to the facts as above related, and it was on this stipulation that the trial judge made his findings and rule for judgment for the respondent.

The trial judge found that the deceased came to his death as a result of an accident not in the course of his employment. The finding made by the trial judge which gives rise to the vital question tinder discussion and which is the turning point of the case is as follows:

"I find that the said accident did not arise out of the employment of the said deceased, of which the actual or lawfully imputed negligence of the employer is the natural and proximate cause, and that the petition filed in the case must be dismissed, but without costs to the petitioner."

Whether or not an accident arose out of an employment is invariably a mixed question of law and fact. It is well settled by the decisions of our courts that if there is any testimony to support the determination of fact it will not be reviewed.

Here, however, it is apparent that the determination of fact was founded upon a misconception by the trial judge of the legal principle applicable thereto, and therefore the legal propriety of such finding is reviewable.

The trial judge appears to have disposed of the facts involved in this ease upon the mistaken notion that, in order to hold a master responsible for an injury to his employé as the result of an accident, the accident must be one of which the actual or lawfully Imputed negligence is the natural and proximate cause, whereas it is clear from a plain reading of the statute that the question of negligence does not enter into the consideration of the case at all, where compensation is sought, as in this case, under section 2 of the Workmen's Compensation Act (P. L. 1911, p. 136).

The legal principle which was applied by the trial judge to the facts of the present case is solely applicable to actions at law commenced under section 1 of the act above recited.

The question presented for our decision is whether the destruction of the Lusitania by a submarine and the death of the deceased in consequence was an accident arising out of the employment. The facts in this case are undisputed, and therefore the same situation in that respect is present, as existed in Walther's Executrix v. American Paper Co., 99 Atl. 263, decided at the November term, 1916, of the Court of Errors and Appeals, where the court reviewed the finding of the court of common pleas, affirmed by the Supreme Court, in 98 Atl. 264, that the accident established by the evidence arose out of the employment, and reversed the judgment.

For the respondent it is contended that the accident did not arise out of the employment, in that the destruction of the Lusitania by being torpedoed was something that was not reasonably to have been anticipated. In Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203, the Court of Errors and Appeals decided that, where an accident is the result of a risk reasonably incident to the employment, it is an accident arising out of the employment. In that case it was held that skylarking among employés whereby a coemployé who neither instigated nor took part in it was injured was not a risk reasonably to be anticipated by the employer, and therefore the injury was not the result of an accident arising out of the employment.

Following the rule laid down in that case, it was held by this court in Schmoll v. Weisbrod & Hess Brewing Co., 97 Atl. 723, where the agent and collector of the brewing company, while on his employer's business in a district of bad repute, was shot by some person unknown, that, in the absence of any proof that the motive of the assailant was robbery or that the employer had notice or knowledge of the dangerous character of the locality, it could not properly be said that the shooting of the agent was an accident arising out of the employment. In Walther v. American Paper Co., supra, the decedent was a night watchman in a mill, and while...