Mayes v. Walter Kidde Constructors, Inc., Claim No. 63891.

• Decision Date: 24 December 1942
• Docket Number: Claim No. 63891.
• Parties: MAYES v. WALTER KIDDE CONSTRUCTORS, Inc., et al.
• Court: New Jersey Supreme Court

29 A.2d 722

21 N.J.Misc. 19

MAYES

v. WALTER KIDDE CONSTRUCTORS, Inc., et al.

Claim No. 63891.

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

Dec. 24, 1942.

Proceeding under the Workmen's Compensation Act by Charles Mayes, claimant, opposed by Walter Kidde Constructors, Inc., employer, and the Liberty Mutual Insurance Company, insurance carrier.

Judgment ordered for claimant.

David Roskein, of Newark (by Mortimer Wald, of Newark), for petitioner.

John W. Taylor, of Newark (by Richard H. Tunstead, of Newark), for respondent.

HARRY S. MEDINETS, Deputy Commissioner.

From the stipulation of counsel and the testimony adduced, it appears that the facts in this case are not seriously in dispute. The petitioner was in the employ of the respondent on June 8, 1942, as a laborer and was receiving wages which would entitle him to a compensation rate of $20 a week. On that date at about 12:30 P. M, the petitioner was engaged in the performance of his duties for the respondent as a buggy pusher. His job was to fill a buggy with concrete at a concrete mixer and push the filled buggy to some portion of the premises where the concrete was to be poured. These buggies, which were used not only by the petitioner but by several other employees, as well, were the property of the respondent. They were not all identical and some were in better condition than others; that is, some were easier to handle and manipulate, depending upon the condition of the wheels and of the structure holding same.

One of the respondent's employees, Henry Moore, was the caretaker of the equipment used on the job by the laborers and among his duties he was required to and did look after the buggies and saw to it that they were kept in good working condition, as well as to store them in a shed when they were not in use. The proofs indicate that on June 8, 1942, the petitioner following lunch resumed his work with a buggy which he learned after a brief period of use to be other than the one which he had been using that morning. This became manifest in that the second buggy was not in as good working condition due to some defect in the wheel, as was the one which he had been using previously. The petitioner, after emptying same of concrete, set it aside and selected one which appeared to him to be in better condition. He thereupon attempted to proceed with the performance of his duties tinder the foreman's orders. Upon observing this substitution, the said caretaker, Henry Moore, stopped the petitioner, grabbed the handle of the buggy and insisted that the petitioner leave it until he first washed out the buggy which he had just abandoned. Then ensued a tussle with each of the men pulling back and forth on the handles of the buggy. During the course thereof, a fellow employee, Mitchell Hall, and later Marshall Jones, the shop steward, intervened and urged both men to continue with their work. Marshall Jones offered to wash the buggy himself. In passing, it should be observed that the assailment, Henry Moore, when he testified at the hearing, stated he did not recall that these two men attempted to intervene.

The dispute over the buggy apparently ended with the same in the petitioner's possession and he proceeded to roll same for a distance towards the concrete mixer, evidently in the resumption of his work. As the petitioner stood by the concrete mixer, Henry Moore assailed him and struck the petitioner on the back of his head with a shovel, causing him to fall to the ground unconscious. The only explanation advanced by the assailant, Henry Moore, for this assault was that he was "mad".

Petitioner was at once removed to St. Barnabas Hospital, where he remained until June 15, 1942. There, a diagnosis of a cerebral concussion and laceration of the forehead was made. Thereafter, the petitioner was temporarily disabled for a period of ten weeks, following which he attempted to and did perform work for the Otis Elevator Company, but due to the headaches and dizziness which he suffered following the accident, he was unable to continue at his job.

On behalf of the petitioner, Dr. Baeder, an interne at the St. Barnabas Hospital, testified that he received a history of the petitioner being struck on the head with a shovel. The petitioner, during preliminary questioning at the hospital, exhibited considerable difficulty in remembering what happened to him after the blow. Moreover, while in the emergency room the petitioner lapsed into sleep from which it was difficult to arouse him. It was the doctor's...