Kelly v. Hackensack Water Co.

• Decision Date: 13 December 1950
• Docket Number: No. A--498,A--498
• Citation: Kelly v. Hackensack Water Co., 10 N.J.Super. 528, 77 A.2d 467 (N.J. Super. App. Div. 1950)
• Parties: KELLY v. HACKENSACK WATER CO.
• Court: New Jersey Superior Court — Appellate Division

Page 528

10 N.J.Super. 528

77 A.2d 467

KELLY v. HACKENSACK WATER CO.

No. A--498.

Superior Court of New Jersey Appellate Division.

Argued Nov. 27, 1950.

Decided Dec. 13, 1950.

Seymour A. Smith, Hackensack, argued the cause for the appellant (Hein & Smith, Hackensack, attorneys).

Francis V. D. Lloyd, Hackensack, argued the cause for the respondent (Morrison, Lloyd & Griggs, Hackensack, attorneys; William J. Morrison, Jr., Hackensack, and Samuel W. Zerman, Weehawken, of counsel).

Before Judges FREUND, PROCTOR and ROGERS.

The opinion of the court was delivered by

ROGERS, J.A.D.

This is a workmen's compensation case wherein appellant's claim is based upon the accidental death of her husband, Leroy Kelly, arising out of and in the course of his employment by respondent, Hackensack Water Company.

At the close of petitioner's case before the Division of Workmen's Compensation, respondent's motion for judgment of dismissal, upon the evidence presented, was granted. The appeal is from that judgment. It is made to this court pursuant to Rules 3:81--7, 8 because our compensation statute, R.S. 34:15, N.J.S.A., contains no procedure for appeal where, as in this case, the alleged compensable accident occurred outside this State. Cf. Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N.J. 356, 66 A.2d 726 (1949).

It is fundamental that, upon respondent's motion for dismissal proposed at the conclusion of petitioner's case, all reasonable inferences deducible from the evidence submitted must be resolved in petitioner's favor and that therefrom it be determined whether a prima facie case was presented. The hearing officer concluded that the evidence did not establish a compensable claim under our statute because it did not appear that the employee's death resulted from an accident arising out of and in the course of his employment. Upon consideration of the evidence, we are convinced that petitioner established a prima facie case and that the judgment of dismissal was error.

Two questions are raised by this appeal. The first is, whether the evidence makes out a prima facie case of compensable accident arising out of and in the course of decedent's employment. The second is, whether the hearing officer erred in refusing to fully recognize the demands made in the subpoena Duces tecum issued by petitioner.

The first point comprises two phases and was so presented in the briefs and at argument. The primary one is whether the evidence showed the alleged accident which caused the employee's death was such within the intendment of the statute, or did the evidence demonstrate that his death resulted from skylarking, intoxication, or willful negligence. If the accident was within the statute, there remains the question of whether it arose out of and in the course of decedent's employment.

The statutory 'accident' means such a happening in the usual and broad sense. Our courts have construed it to be 'an unlooked for mishap or untoward event which is not expected or designed.' Bryant, Adm'x v. Fissell, 84 N.J.L. 72, 86 A. 458 (Sup.Ct.1913); Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 25 A.2d 894, 139 A.L.R. 1465 (E. & A.1942).

The substantial facts surrounding the accident are:

Kelly's death occurred while he was attending his employer's outing at Bear Mountain Park, New York, in September 1949, and it resulted from his fall into a ravine from a steeply declining hard surfaced pathway upon which, at the end of the afternoon, he was returning to the boat provided by the employer for the trip to and from the outing. The path was curved and steep enough to require one to hold back from gaining too much momentum in travelling down it to the river level from the upper park area where the picnic events were held. A rustic fence about 3 1/2 feet high extended along the pathway separating it from the ravine and to a point where the pathway at a sharp angle met the ramp bridge leading over railroad tracks down to the boat. Kelly fell from the pathway a few feet from its junction with the ramp bridge. There is no evidence as to how he fell, except for the statement of one witness who was also going down the path about 25 feet behind decedent. She says that she suddenly saw an object go over the fence, that she screamed and a number of people then ran to the scene. She found later that the object she saw was Kelly. From the fence to the edge of the precipice there was but a narrow ledge sloping toward the chasm.

Kelly's death resulted from a fractured skull. He was 60 years old, over six feet tall and weighed more than 200 pounds and he was in sound health.

Respondent's brief urges that the evidence does not prove Kelly went over the fence by accident and, that accordingly, petitioner has not met the burden of adducing preponderant evidence in favor of her hypothesis that decedent accidentally fell over the fence. In Jochim v. Montrose Chemical Co., 3 N.J. 5, at page 8, 68 A.2d 628, 629 (1949) Justice Ackerson said: 'In civil cases it is sufficient if the circumstantial evidence be such as to afford a fair and reasonable presumption of the facts inferred. Circumstantial or presumptive evidence, as the basis for deductive reasoning in the determination of civil causes, is a mere preponderance of probabilities. The only requirement is that the claimed conclusion from the offered fact must be a probable or more probable hypothesis, with reference to the possibility of other hypotheses. This is merely a rational inference, I.e., based upon the common experience of mankind. In the final analysis 'probability, and not the ultimate degree of certainty is the test.' Seiken v. Todd Dry Dock, Inc., 2 N.J. 469, 475, 67 A.2d 131 (Sup.Ct.1949); Hercules Powder Co. v. Nieratko, 113 N.J.L. 195, 203, 173 A. 606 (Sup.Ct.1934), affirmed 114 N.J.L. 254, 176 A. 198 (E. & A.1934); Manziano v. Public Service Gas Co., (92 N.J.L. 322, 105 A. 484) supra; Russo v. Wright Aeronautical Corp., 1 N.J. 417, 421, 64 A.2d 71, 72 (Sup.Ct.1949).'

Clearly, in our judgment, the surrounding circumstances raise a reasonable presumption that Kelly's death resulted from an accidental fall over the fence on the steep pathway sustained at his employer's outing. The evidence does not imply that Kelly's fall was suicidal or caused by his willful negligence. Such acts are never presumed. Jochim v. Montrose Chemical Co.,supra. There is also no inference to be drawn that intoxication contributed to the accident because Kelly was at the bar in the Inn at the Park before the accident. There is no evidence that he indulged in intoxicating beverages at all on that occasion.

The evidence at the hearing before the Workmen's Compensation Division also showed the following facts pertaining to Kelly's employment at the time of the accident.

The employer's outing had been an annual event since 1932, except for one year (1948). Following its then abandonment, there was a protest by the employees and it was reinstated in 1949. The protest included a claim that the outing was one of the 'benefits' which respondent had guaranteed to continue by the terms of the employment agreement bargained for between employer and employees in 1948. The respondent had always paid the entire expense of the outings and they were conducted completely under its control. Arrangements for the event were made on respondent's time by representatives of employer and employees. All employees were...