Nardone v. Pub. Serv. Elec. & Gas Co.

• Decision Date: 04 October 1934
• Docket Number: No. 209.,209.
• Citation: 174 A. 745
• Parties: NARDONE v. PUBLIC SERVICE ELECTRIC & GAS CO.
• Court: New Jersey Supreme Court

174 A. 745

NARDONE

v. PUBLIC SERVICE ELECTRIC & GAS CO.

No. 209.

Supreme Court of New Jersey.

Oct. 4, 1934.

Certiorari to Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by Giovannina Nardone, claimant, for the death of Arcangelo Nardone, opposed by the Public Service Electric & Gas Company, employer. To review a judgment of the Workmen's Compensation Bureau in favor of the employer, the claimant brings certiorari.

Affirmed.

Argued May term, 1934, before TRENCHARD, HEHER, and PERSKIE, JJ.

Sandmeyer & Meisner, of Newark, for prosecutrix.

Henry J. Sorenson, of Newark (Henry H. Fryling and William H. Speer, both of Newark, of counsel), for respondent.

PERSKIE, Justice.

Arcangelo Nardone, twenty-nine years of age, husband of the prosecutrix, and father of two minor children, two and five years of age, was employed as a mechanical helper by the respondent, at its Coal street garage, Newark, N. J. He also took care of the furnace in the premises. In the performance of his latter duties he was required to go outside the inclosed premises, into the open yard, to obtain coal. A brick stack, approximately 250 feet high, is situated about 30 feet from the basement exit of the garage. A hand shovel protruded from a pile of coal at the base of the stack. In close proximity to the coal pile there was an empty wheelbarrow. These facts tend to indicate that Nardone had undoubtedly started to get some coal. His working hours, at the time, were from 11 p. m. through the night.

On November 25, 1930, about 6:45 a. m., Nardone was found unconscious in the basement of the garage, underneath an ash hopper. A pool of blood was at the spot where he was found and another pool of blood was a few feet away from the wheelbarrow. Between the two pools there was also what was described as a "trail of blood." Nardone's hat, with a hole in the top, was found a few feet from the coal pile. He sustained a fractured skull in the occipital region and died a few hours after he was found. Evidence was "that there was some soot around the hole in his head." There was also some evidence that footmarks indicated "like somebody had skidded around there; a couple of them. There weren't many." Under the proofs, however, we attach little, if any, importance to the subject of the footmarks. For the few words spoken by the deceased, by way of intermittent answers to questions put by detectives of the police department, disclosed that there was no fight; that deceased had not been hit by any one; that he did not know I how he sustained the injuries.

Prosecutrix, in her petition, answering inquiry 17, "What was the nature of the accident and how did it happen?" stated, "Deceased was employed in wheeling coal in a wheelbarrow and while engaged in this occupation teas struck on the head by a heavy object falling from the property of defendant," etc. Respondent denied having any knowledge as to how the accident happened.

The case was tried before the Workmen's Compensation Bureau (Stahl, deputy commissioner) on the theory that a brick had fallen out of the stack, heretofore described, hitting the deceased and resulting in his death.

In support of that theory claimant produced police officers who gave such testimony as, "There was an opening at the very top of the chimney or stack, not the natural one, through which opening daylight could be seen"; "I mean brick around the chimney"; "There was a brick missing from the top"; that "There was a space at the top of the chimney"; "A small gap in the peak of it"

Respondent produced sixteen witnesses. The personnel of these witnesses consisted of builders, engineers, and surveyors, experts and lay persons. The construction of the stack, generally, and the laying and setting of all bricks therein, particularly, was described in detail and tended to indicate the lack of any likelihood that any one brick thereof could have fallen out. The stack was climbed and minutely examined. Other witnesses examined it by the use of a transit, binoculars, and telescopes of special construction, and some of which magnified the object inspected from 30 to 70 fold. All of the witnesses for respondent testified that not a brick was missing in the chimney or stack. One of the witnesses for the prosecutrix (a police officer), who testified that a brick was missing, was asked by a witness for respondent to accompany him to the stack and point out the missing brick. They went to the stack. They used magnifying glasses but no missing brick was pointed out; although the witness did leave the inference that the stack looked differently than it did at the time he first examined it.

The deputy commissioner was of the opinion that respondent's proof completely rebutted petitioner's proof that a brick of the stack was missing or that there had been any repairs made to the stack since November 25, 1930. We also think so. We are, of course, not swayed by the mere number of respondent's witnesses. We are, however, convinced by the character of the witnesses and the quality, and probative value, of their testimony. This testimony is not only cumulative; it is overwhelming. It is convincing. It compels the conclusion that the theory (of a falling brick) upon which the petitioner sought to impose liability on the respondent was completely exploded. And so was the inference that the stack was repaired since November 25, 1930, thoroughly dispelled.

The deputy commissioner concluded that the accident occurred "in the course of" the employment; that all other necessary elements had been complied with except the one that the accident arose "out of" the employment. But neither finding alone is enough. Hulley v. Moosbrugger, 88 N. J. Law, 161,164, 95 A. 1007, L. R. A. 1916C, 1203. And he also found that the evidence did not convince him that the cause of death was due to a risk which was directly or indirectly connected with the employment.

Counsel for the prosecutrix, in their brief, conceded that, "There were no witnesses to the actual happening. The object which struck Nardone was never identified. * * * No affirmative proof of how the accident happened could be furnished, but we have the death, the statement of the deceased and some evidence of a brick falling from the chimney, we have the hole in the hat, a hole in the head with soot around it," and argue, on this premise, notwithstanding the utter failure to sustain the theory upon which the case was tried, that in the absence of any other explanation of the accident and the resulting death, there was a legitimate deducible inference that it arose "out of" the employment.

The difficulty with the argument for prosecutrix lies not in the lack of the probative value of a proper deducible inference to sustain a judgment; that is well settled. See Dunn and Friedman v. Goldman, 111 N. J. Law, 249, 168 A. 299; Jackson v. D., L. & W. R. Co., 111 N. J. Law, 487, 170 A. 22; Farrell v. N. J. Power & Light Co., 111 N. J. Law, 526, 170 A. 25. Suicide and murder are, of course, not to be presumed. Steers v. Dunnewald, 85 N. J. Law, 449, 89 A. 1007, reversed on other point in 89 N. J. Law, 601, 99 A. 345. But, the difficulty lies in the fact that it ignores adjudicated definitions and determinative prerequisites of the phrase "an accident arising out of the employment." Perhaps it will not be out of place to restate them.

An accident arises "out of" the employment when it is something the risk of which might have been contemplated by a reasonable person, as incidental to it. And a risk is incidental to the employment where it belongs to or is connected with what a workman has to do in fulfilling his contract of service. Bryant v. Fissell, 84 N. J. Law, 72, 86 A. 458. Thus whether the proof be direct proof, circumstantial or presumptive proof, i. e., based on a proper deducible inference, or both, it must show that the cause of death was due to a risk which was directly or indirectly connected with it or incidental to the employment. This is the real test. The following cases are illustrative:

In Atchison v. Colgate & Co., 128 A. 598, 3 N. J. Misc. 451, a laborer, while wheeling a hand truck, helping to unload a truck, fell from a gang plank to the sidewalk, employer claimed that the paresis from which the workman died was not the result of the fall. The deputy commissioner found, under the proofs, that the accident arose in the course of and out of the employment. The Supreme Court sustained the finding and held if the employer seeks to avoid liability for a cause for which it is not responsible, the burden of proof is on the employer to show such cause.

In Pacelli v. Janowitz Bros., 5 N. J. Misc. 474 (Workmen's Compensation Bureau finding), the body of the deceased (a night watchman) was found at the foot of a staircase in the factory of the employer, with the body in such a position that it convinced the deputy commissioner that the deceased had fallen down the stairs and the commissioner therefore concluded that the accident arose out of and in the course of the employment.

In Irons v. Hause Washed Gravel & Sand Co., 6 N. J. Misc. 863 (Workmen's Compensation Bureau finding), deceased was an operator of an electric conveyor. Death was caused by electric shock. Body was found on the floor of the room containing electric switches and other electric devices used in the operation of the conveyor. There were no eyewitnesses to the fatality. Body showed electric burns. It was held:

"* * * If an employee is found dead and there is no evidence as to how he met his death, the court will presume it was by accident arising out of and in the course of the employment, provided the body is found under circumstances reasonably connected with the said employment. De Fazio's Estate v. Goldschmidt Detinning Co., 87 N. J. Law, 317 , and Muzik v. Erie Railroad Co., 85 N. J. Law, 129 . Although the respondent contends that death was caused and due to natural causes, this,...