Hannaford v. Cent. R. Co. of N.J.

• Decision Date: 01 November 1935
• Docket Number: No. 226.,226.
• Parties: HANNAFORD v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

181 A. 306

HANNAFORD

v. CENTRAL R. CO. OF NEW JERSEY.

No. 226.

Supreme Court of New Jersey.

Nov. 1, 1935.

The "res gestae" includes those circumstances which are the undesigned incidents of a particular litigated act. They may be separated from the act by a lapse of time more or less appreciable, and may consist of speeches of any one concerned, whether participant or bystander. They may comprise things left undone as well as things done. They must be the necessary incidents of the litigated act in this sense that they are a part of the immediate preparation for, or emanations of, such act, and are not produced by the calculated policy of the actors.

Evidence showed that deceased had no control of operations of company, that his task was to take charge of and look after administrative duties connected with real estate and taxes of company, which duties were both supervisory and personal, and that in some things he had final word, but in others he would have to report to his superiors for approval; that he was not a director or member of executive committee; that it was his duty to see that property of company was in proper condition, which he was required to perform either by his own personal observation and inspection or by that of his helpers; that he was injured while climbing over fence while in performance of actual inspection work.

Syllabus by the Court.

1. The res gestæ includes those circumstances which are the undesigned incidents of a particular litigated act. They may be separated from the act by a lapse of time more or less appreciable, and may consist of speeches of any one concerned, whether participant or bystander. They may comprise things left undone as well as things done. They must be the necessary incidents of the litigated act in this sense that they are a part of the immediate preparation for, or emanations of, such act, and are not produced by the calculated policy of the actors.

2. The mere fact that one is an officer of a corporation does not, under the Workmen's Compensation Act, necessarily preclude recovery for his death as an employee of the corporation. Such officer may serve both as an officer and a workman under circumstances making him an employee within the meaning of the act, and if he sustains injury resulting in death while performing duties in the latter capacity, there may be a recovery under the act.

3. Evidence examined and held to amply justify the finding of the Workmen's Compensation Bureau and of the court of common pleas that the decedent was an employee.

Certiorari to Common Pleas Court, Union County.

Proceeding under the Workmen's Compensation Act by Bertha M. Hannaford, claimant, for the death of her husband, alleged employee, opposed by the Central Railroad Company of New Jersey, alleged employer. To review a judgment of the court of common pleas sustaining an award of the Workmen's Compensation Bureau for claimant, alleged employer brings certiorari.

Affirmed.

Argued October term, 1935, before TRENCHARD, HEHER, and PERSKIE, JJ.

William F. Hanlon, of New York City (DeVoe Tomlinson, of Newark, of counsel), for prosecutor.

William Newcorn, of Plainfield, for defendant.

TRENCHARD, Justice.

The widow of Leon M. Hannaford filed a petition pursuant to our Workmen's Compensation Act (Comp. St. Supps. § **236—1 et seq.), alleging that her husband (hereinafter called the decedent), while in the employ of the Central Railroad Company of New Jersey as its "real estate and tax agent," sustained an accident arising out of and in the course of his employment on May 27, 1933, while inspecting property of the company, and that as a result of the accident he died on June 8, 1933.

The Workmen's Compensation Bureau found and determined in favor of the petitioner. The railroad company appealed to the common pleas court of Union county and that court sustained such finding; and thereupon the railroad company obtained this writ of certiorari to review the determination and judgment.

The railroad company's first point is that "there was no legal, competent proof that the decedent's death was the result of an accident arising out of and in the course of his employment."

The precise contention is that the evidence upon which the bureau and the common pleas court relied to establish the accident, and how and when it occurred, was hearsay testimony and therefore incompetent.

The testimony in question was given by Mr. Braybrooke, who accompanied the decedent on his tour of an inspection of the railroad company's property, which it was taking back from the lessee thereof pursuant to the terms of the lease which had expired. The testimony was to the effect that on May 27, 1933, they together "walked over the premises and climbed a couple of fences and inspected the property"; that "while climbing over a fence" the decedent was "injured in the leg," and he said "something about he hurt his foot" and "I think it was shortly after he climbed over the fence," and "I believe he climbed over this fence and walked down there and as he did that he said he had hurt his leg."

That testimony was regarded by the bureau and by the common pleas court as admissible as a part of the res gestae. We think that was right.

It is well settled that the res gestae includes those circumstances which are the undesigned incidents of a particular litigated act. They may be separated from the act by a lapse of...