Moleski v. Bohen

• Decision Date: 29 December 1948
• Docket Number: No. A-21.,A-21.
• Parties: MOLESKI v. BOHEN et al.
• Court: New Jersey Superior Court

62 A.2d 745

MOLESKI

v.BOHEN et al.

No. A-21.

Superior Court of New Jersey, Appellate Division, Part B.

Dec. 29, 1948.

Syllabus by the Court

Facts examined and held to establish accident arising out of employment.

Appeal from Common Pleas Court, Hudson County; John Drewen, Judge.

Proceeding under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq., by Eleanor Moleski against Morris Bohen and Herbert Prestup, trading as William Zalkin, employers, to recover compensation for the death of the claimant's husband. The deputy commissioner dismissed the petition, and the claimant appealed to the Court of Common Pleas. From a judgment of the Court of Common Pleas, 58 A.2d 849, 26 N.J.Misc. 228, awarding compensation, the employers appeal.

Judgment affirmed.

Before McGEEHAN, Senior Judge, and DONGES and COLIE, Judges.

Abraham I. Harkavy and Harkavy & Lieb, all of Newark, for appellants.

Archie Elkins, of Jersey City, for respondent.

COLIE, Judge.

This is a workmen's compensation matter in which the deputy commissioner dismissed the petition and held that the petitioner's decedent had not died as the result of an accident arising out of and in the course of the employment. On appeal, the then Hudson County Court of Common Pleas reversed, holding that petitioner's decedent died of injuries sustained in an accident arising out of and in the course of the employment.

From a study of the evidence we find the following facts: Alexander Moleski, Jr., age 37, was, on May 29, 1947, employed by respondents as a truck driver. On the day in question, he commenced work shortly before 8 A.M. His activities from then until 12:30 included loading his truck with bags of cement, each weighing about 94 pounds and making deliveries to four or five customers. At each stop he assisted in delivering the cement. Thereafter, he assisted in transferring to his truck some 8000 pounds of material in 100 pound bags. After driving this load to its destination, he helped load some hundreds of bricks onto his truck. After the lunch period, he drove his truck out loaded with bundles of sheet rock, each weighing 95 pounds. While delivering this load, he had a flat tire which he assisted in changing. About 4 P.M. he again left the yard with a load of nearly five tons. With the aid of a helper who accompanied him on the afternoon trips, he delivered a part of this load and had walked to the porch of the last customer and pressed the doorbell when he dropped dead as a...