Merkel v. T. A. Gillespie Co., Inc.

• Decision Date: 30 September 1932
• Docket Number: Nos. 224, 255.,s. 224, 255.
• Citation: 162 A. 250
• Parties: MERKEL v. T. A. GILLESPIE CO., Inc.
• Court: New Jersey Supreme Court

162 A. 250

MERKEL

v. T. A. GILLESPIE CO., Inc.

Nos. 224, 255.

Supreme Court of New Jersey.

Sept. 30, 1932.

Proceeding under the Workmen's Compensation Act by Philip G. Merkel. claimant. opposed by the T. A. Gillespie Company, Incorporated, employer. To review a judgment of the court of common pleas dismissing an appeal from the decision of the Workmen's Compensation Bureau in favor of the employer, claimant brings certiorari.

Affirmed.

Argued May term, 1932, before PARKER, CAMPBELL, and LLOYD, JJ.

David Roskein, of Newark, for prosecutor. Arthur F. Mead, of Newark, for respondent.

PER CURIAM.

There are two matters before us: Cause No. 224 is a writ of certiorari to review the judgment of the court of common pleas of Essex county dismissing an appeal in a workmen's compensation matter; and No. 255 is a motion to dismiss the appeal to this court, in the same matter, for lack of diligent prosecution.

Dealing with the latter cause first, it might well be dismissed because of noncompliance with our rules. Proper diligence is not perfectly apparent, but by our disposition of the cause, upon its merits, legal and factual, respondent is not disadvantaged by a refusal to dismiss. The motion to dismiss is therefore denied, without costs.

Directing our attention to cause No. 224, the facts are: Merkel, the prosecutor, and others, as employees of the respondent, Gillespie & Co., were engaged in laying water mains in Jersey City. The performance of this work required the excavation of a trench and the lowering therein, and connecting up, of the pipes, length by length. A point in the work seems to have been reached where the trench was obstructed by a tree stump which it was attempted to remove by a crane, located on the highway, and tackle attached to the stump. One Stahlberg was acting as signalman for the crane operator, and he and Merkel and another or others were assigned to care for the traffic on the highway so that it would not come into collision with the crane. The tackle had, several times, been placed upon the stump, but slipped each time that the crane attempted to pull. Finally, Merkel appears to have undertaken to direct Stahlberg and other employees how to arrange the tackle. This started an argument between them, during which they called each other names, and finally Merkel approached Stahlberg making an attempt to hit him, which blow Stahlberg dodged and in turn be struck Merkel, knocking him down and injuring him.

Upon a hearing before a Deputy Commissioner of the Compensation Bureau, that officer found that the injuries to Merkel did not arise out of and in the course of his employment and therefore he was not entitled to an award for compensation under the Workmen's Compensation Act.

Upon appeal from such finding to the court of common pleas that tribunal dismissed the appeal for the same reason, citing as authority Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 A. 1007, 1010 L. R. A. 1916C, 1203; Walther v. American Paper Co., 89 N. J. Law, 732, 99 A. 263; and Mountain Ice Co. v. McNeil, 91 N. J. Law, 528, 103 A. 184, 185, L. R. A. 1918E, 494.

The facts in none of these cases present a situation identical with the case before us, but from them, we think, the policy of the courts of this state can clearly be discerned.

In Hulley v. Moosbrugger, supra, the workman, at the time of the happening, was engaged in a work for his master and as the result of the swing of the arm of a fellow employee, said to be in horseplay, which he attempted to dodge, he slipped and fell receiving injuries resulting in his death. The Court of Errors and Appeals reversed an award of compensation, that court holding:

"In the case at bar the employer was not charged with the duty to see to it that none of his employees assaulted any other one of them, either willfully or sportively. And when one made such an assault upon another he was guilty of the doing of a negligent act as an individual tort-feasor, for which his employer was not responsible. * * * The accident in this case was clearly not one within the scope of the employment of the decedent, nor was it one arising out of a risk reasonably incident to that employment.

"We are of opinion that an employer is not liable, under the Workmen's Compensation Act (P. L. 1911, p. 134), to make compensation for injury to an employee, which was the result of horseplay or skylarking, so called, whether the injured or deceased party instigated the occurrence or took no part in it;

for, while an accident, happening in such circumstances, may arise in the course of it, it cannot be said to arise out of the employment."

In Walther v. American Paper Co., supra, a night watchman was beaten and robbed by a fellow employee, upon the premises of the employer and while the watchman was on duty. He died from his injury and an award of compensation was reversed by the Court of Errors and Appeals, because, inasmuch, the court said, as "the assailant's purpose in...