Giles v. W.E. Beverage Corp...

• Decision Date: 18 July 1945
• Docket Number: No. 201.,201.
• Citation: 43 A.2d 286,133 N.J.L. 137
• Parties: GILES et al. v. W.E. BEVERAGE CORPORATION.
• Court: New Jersey Supreme Court

133 N.J.L. 137

43 A.2d 286

GILES et al.

v.W.E. BEVERAGE CORPORATION.

No. 201.

Supreme Court of New Jersey.

July 18, 1945.

Certiorari to Court of Common Pleas, Bergen County.

Proceeding under the Workmen's Compensation Act by Ruth M. Giles, etc., and another opposed by W.E. Beverage Corporation, employer, to recover benefits for death of David H. Giles, husband of named claimant. To review a judgment for claimants reversing a judgment of the Compensation Bureau for employer, employer brings certiorari.

Judgment of the Court of Common Pleas reversed, and judgment in the Bureau affirmed.

May term, 1945, before CASE, BODINE, and PERSKIE, JJ.

Kalisch & Kalisch, of Newark (Isidor Kalisch, of Newark, of counsel), for prosecutor.

Abram A. Lebson, of Englewood, for respondents.

PERSKIE, Justice.

This is a workmen's compensation case. R.S. 34:15-7, et seq., N.J.S.A. Concededly, the fatal shooting of David H. Giles, employed by prosecutor, was, in the circumstances of this case, the result of an ‘accident’ within the meaning of our Workmen's Compensation Act, supra, which arose ‘in the course of his employment.’ The question for decision is whether respondents carried their burden of establishing, by a ‘preponderance of (the) probabilities according to the experience of mankind,’ that the ‘accident’ was one which also arose ‘out of’ the employment. Cf. Gilbert v. Gilbert Mach. Works, Inc., 122 N.J.L. 533, 6 A.2d 213; Kramerman v. Simon, 131 N.J.L. 250, 36 A.2d 132.

In the Bureau the question was answered in the negative and petitioners' (respondents here) claim petition was dismissed accordingly.

In the Bergen County Court of Common Pleas, the question was answered in the affirmative. The judgment of the Bureat was reversed and petitioners, Ruth M. Giles, wife of David H. Giles, and June Giles, their infant child, were adjudged to be entitled to their asserted claim to compensation. To review the adjudication of the Pleas, prosecutor was allowed a writ of certiorari.

Our independent review of the facts and law (Stetser v. American Stores Co., 124 N.J.L. 228, 11 A.2d 51; Calicchio v. Jersey City Stock Yards Co., 125 N.J.L. 112, 118, 14 A.2d 465) leads us to the conclusion that the judgment in the Bureau was correct.

The pertinent facts leading up to and including the shooting of Giles are free from substantial dispute. Prosecutor, W.E. Beverage Corp., a corporation of New Jersey, respondent below, operates a package goods store for the sale of wine, liquor, beer, etc., at 107 William Street, Englewood, N. J. The locale is on the border of the city and is characterized as the ‘Texas' section of that city. Giles had been employed by prosecutor as manager of its store for about four years at the wage of $100 a week. As manager, he was obliged, among his many duties, to check and account for the receipts at the close of each business day and arrange for the safe keeping of the moneys.

On October 29, 1942, about 11:45 p. m., just about when there is a change in the shifts of the policemen patrolling the beat on which the store is located, and while Giles was in the process of checking the receipts for the day, two undisguised white men entered the store and immediately, without saying a word, began firing their pistols at Giles. Two bullets entered through the back of his head and four through his body. He died instantly. Edward Hampton, one of the two young men employed in the store, was struck by a bullet apparently aimed at Giles, while Edward was trying to escape. He died about two weeks later. The assailants made no attempt at robbery. The cash in the cash register and the cash scattered on the floor about and under the body of Giles, totalling between two and three hundred dollars, tallied with the cash receipts as disclosed by the cash register for the day. The sum of one thousand dollars on the body of Giles was not taken. No part of the stock in the store, valued between twenty and twenty-five thousand dollars, was taken. There is no proof that the assailants were frightened away.

Immediately after the shooting the assailants quickly departed the premises and were heard to drive away in an automobile. Their identity is not known nor have they, as yet, been apprehended. Thus we have a most unfortunate killing of an employee by unknown assailants for no known motive.

1. Do such proofs, without more, satisfy petitioners' burden of establishing, within the stated and determinative judicial rule, that Giles' death was the result of an accident arising ‘out of’ his employment? This court in comparable circumstances has answered the posed question in the negative. Walther v. American Paper Co., 89 N.J.L. 732, 99 A. 263 (a workman killed and robbed by a fellow employee); Schmoll v. Weisbrod & Hess Brewing Co., 89 N.J.L. 150, 97 A. 723 (driver delivering beer shot and killed by unknown assailant. In light of respondents' criticism that the holding in the Schmoll case was not when decided, and is not now, the correct applicable law of the State, we mark the fact, at this point, that it has been cited with approval in Foley v. Home Rubber Co., 89 N.J.L. 474, 477, 99 A. 624, affirmed 91 N.J.L. 323, 102 A. 1053, and in Staubach v. Cities Service Oil Co., 126 N.J.L. 479, 483, 19 A.2d 882); Coco v. Wilbur, 104 N.J.L. 275, 140 A. 790 (cranberry picker shot by some unknown assailant); Nardone v. Public Service, etc., Co., 113 N.J.L. 540, 174 A. 745 (a furnace attendant found dead near coal pile without proof as to cause of death); and Armstrong v. Union County Trust Co. 14 N.J.Misc. 648, 186 A. 522, affirmed in 117 N.J.L. 423, 189 A. 138 (deceased employee found on the basement floor with a cracked skull) on the opinion of the Supreme Court which rested its judgment on the authority of the Nardone case. The holding in these cases demonstrates the rudimentary principle that a judgment in a workmen's compensation case, not unlike the judgment in any other judicial or quasi judicial proceeding, can not be made to rest on conjecture, guess or speculation. The judgment must be supported by legal evidence, direct, circumstantial or presumptive, establishing the asserted claim to compensation. Nardone v. Public Service, etc., Co., supra, 113 N.J.L. at page 550, 174 A. 745. Proof of the shooting of Giles by unknown assailants, for no known reason or motive, without more, fails to establish the statutory requirement that the accident arose ‘out of’ the employment. It shall serve no purpose to restate the judicial construction given many times to the statutory phrase of an accident arising ‘out of’ the employment. See, Bryant v. Fissell, 84 N.J.L. 72, 78, 79, 86 A. 458; Terlecki v. Strauss, 85 N.J.L. 454, 89 A. 1023, affirmed 86 N.J.L. 708, 92 A. 1087; Nardone v. Public Service, etc., Co. supra, 113 N.J.L. at page 544, 174 A. 745; Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43, 47, 178 A. 181, affirmed 116 N.J.L. 92, 182 A. 873; Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512, 520, 6 A.2d 396; Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 25 A.2d 894, 139 A.L.R. 1465; Gargano v. Essex County News Co., 129 N.J.L. 369, 29 A.2d 879, affirmed 130 N.J.L. 559, 33 A.2d 905; Giracelli v. Franklin Cleaners & Dyers, Inc., 132 N.J.L. 590, 42 A.2d 3.

2. In support of their claim, respondents invoke the familiar principle of law that if an employee is found dead and there is no evidence to show how he met his death, the court will presume that it was a death arising out of and in the course of the employment, provided the body is found under circumstances reasonably connected with the said employment. Irons v. Hause Washed Gravel & Sand Co., 6 N.J.Misc. 863, 864; De Fazio's Estate v. Goldschmidt Detinning Co., 87 N.J.L. 317, 88 A. 705, 95 A. 549; Muzik v. Erie R. R. Co., ...