Lindsay v. Hoffman Beverage Co.

• Decision Date: 01 May 1941
• Docket Number: Claim No. 49620.
• Citation: 19 N.J.Misc. 356,19 A.2d 824
• Parties: LINDSAY v. HOFFMAN BEVERAGE CO.
• Court: New Jersey Supreme Court

19 A.2d 824

19 N.J.Misc. 356

LINDSAY

v. HOFFMAN BEVERAGE CO.

Claim No. 49620.

New Jersey Department of Labor—Workmen's Compensation Bureau.

May 1, 1941.

Proceedings under the Workmen's Compensation Act by Campbell Lindsay, employee, opposed by Hoffman Beverage Company, employer.

Petition dismissed.

Meyer Semel, of Newark, for petitioner.

John W. Taylor, of Newark, for respondent.

WEGNER, Deputy Commissioner.

The petitioner, who was employed as a service man in the garage operated by the respondent in connection with its plant, testified that he was so employed on April 5, 1940, and that about 1:15 P.M. on that day he was assaulted by John Savage, another employee of the respondent, and caused to suffer certain injuries by reason of the assault. It appears from the testimony that prior to the incident of April 5, 1940, Lindsay had been of the opinion that Savage had carried "tales" about him and his work to a Mr. Shippe, who was the foreman in charge of respondent's garage. In addition to feeling that Savage had lied about him on several occasions to Mr. Shippe, Lindsay also felt that Savage attempted to assume some authority over him when in fact Savage had no authority so far as he, Lindsay, was concerned. He stated that he had so expressed himself to Mr. Shippe and had been advised by Mr. Shippe that in the event of any misunderstanding between him and Savage he was to communicate with Mr. Shippe, who would straighten out the difficulty.

Lindsay testified that at about 1:15 P.M. on April 5, 1940, Savage came up to him and asked him where he had been during the morning and in reply to this query Lindsay said: "If you want an answer to this question you will have to have Mr. Machado, the garage foreman, ask me the question and I will answer the question through him". According to Lindsay, one word led to another, and finally he went into the office on the first floor of the garage for the purpose of calling Mr. Shippe; that his attempt to contact Mr. Shippe was unsuccessful and while so doing, Savage lost his temper and slapped him in the face causing him to fall to the floor. While he was attempting to regain his feet he saw a fellow-workman, a Mr. Klok, come into the office and get between him and Savage. A Mr. Iseman also came in and intervened. He claims that while attempting to regain his feet, he was kicked in the face (indicating the right jaw) and also kicked in the back by Savage. Lindsay denied that he struck Savage at any time during the altercation although he did admit saying to Savage, "Strike me and see what you get".

Mr. John Savage testified that he was employed as a clerk in Mr. Shippe's office and that on the morning in question he had been instructed by Mr. Shippe to locate the petitioner. He stated that he searched around the plant for Mr. Lindsay for some two or three hours before he was able to locate him and when he finally located him in the garage shortly after the noon hour inquired where he had been and Lindsay immediately took offense and indicated very strongly that he felt that his whereabouts during the morning were of no concern to Savage. He said that during the course of the discussion which followed, they made their way into the office and while in the office he tried to reason with Lindsay stating that the entire matter was between the two of them and that there was no need for them to rehash their respective grievances in the presence of anyone else. Lindsay thereupon flew into a rage and used abusive language calling Savage by uncomplimentary names and finally putting up his fists and offering to fight it out. Savage stated that he told Lindsay that he did not care to fight but when Lindsay persisted in calling him certain "names" and flourished his fists in Savage's face indicating to Savage that he was in a position of peril, he, Savage, struck Lindsay on the right side of his face. Savage stated that he could not recall which of the two struck the first blow, but that they each hit the other and during the course of the flurry of blows Lindsay fell to the floor and it was at this time that Messrs. Klok and Iseman came into the office.

Savage stated that prior to the incident of April 5th, he had an occasion to complain about Lindsay to Mr. Shippe and when Lindsay heard of this he strongly indicated his feeling towards Savage and accused Savage of lying about him to Mr. Shippe.

Mr. Klok and Mr. Iseman, who were called as witnesses for the petitioner, corroborated Savage, for they both testified that their attention was attracted to the office by loud voices and the sound of furniture being pushed around the office. When they entered the office, they said, they saw "fists flying" and the two men clinched together. This testimony directly contradicts the testimony of Lindsay for Lindsay denied striking Savage.

Mr. Joe Palmer, who testified for the respondent, related incidents leading up to the occurrence. He saw a fist fly and Lindsay fall but was vague as to all that took place as he was approximately fifty feet away.

Mr. Shippe, the garage foreman, likewise corroborated Savage's testimony, for he stated that some time shortly prior to the altercation of April 5th Lindsay had accused Savage, in his presence, of complaining and lying about his work to Mr. Shippe.

The paramount issue in the case was whether or not Lindsay suffered injury by reason of an accident arising out of and in the course of his employment by the respondent company.

In Hulley v. Moosbrugger, 88 N.J.L. 161, 95 A. 1007, L.R.A.1916C, 1203, the Court of Errors and Appeals held that an employer was not liable under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq., where one of his employees, in a spirit of play, swung his arm around at another employee, either to knock off his hat or to strike him, whereupon that employee, in dodging the attack slipped on a concrete floor, fell and sustained injuries which caused his death. The court held that an employer was not liable under the Workmen's Compensation Act to pay compensation for injury to an employee which was the result of horse-play or sky-larking, for while an accident happening under such circumstances may arise in the course of, it cannot be said to arise out of, the employment. There was no evidence in that case that the employer had any knowledge of prior sky-larking on the part of any of his employees or that he had any opportunity to prevent the occurrence.

In Mountain Ice Company v. McNeil, 91 N.J.L. 528, 103 A. 184, 185, L.R.A.1914E, 494, the employee, McNeil, was struck on the head with an ice-pick by a fellow-employee, and sustained injuries for which he brought suit under the Workmen's Compensation Act against his employer. On the day of the occurrence the employees had been working together in an icehouse and a fellow-employee had tried several times to pull from under McNeil a box upon which he sat while engaged in work. This finally ended in a scuffle during which the...