Sanders v. Jarka Corp...

• Decision Date: 16 October 1947
• Citation: 55 A.2d 301
• Parties: SANDERS v. JARKA CORPORATION.
• Court: New Jersey Court of Common Pleas

55 A.2d 301

SANDERS

v.JARKA CORPORATION.

Court of Common Pleas of New Jersey, Essex County.

Oct. 16, 1947.

Appeal from Workmen's Compensation Bureau.

Proceeding under the workmen's compensation law by Ralph Sanders, employee, opposed by Jarka Corporation, employer. From a determination of the workmen's compensation bureau denying compensation, the employee appeals.

Petition dismissed.

Harry Krieger, of Newark, for petitioner-appellant.

Everitt Rhinehart, of Newark, for respondent-appellee.

FLANNAGAN, Judge.

This is an appeal from a determination by the Workmen's Compensation Bureau dismissing the petition of the petitioner by which he sought compensation from the respondent, his employer, for an assault and battery by a third person, one known as ‘Willie.’ The respondent presented no witnesses, and at the close of the petitioner's case both sides rested on the issue of liability and submitted that issue to the court on the evidence then adduced. The Court decided the case in favor of the respondent and dismissed the petition, from which determination the petitioner now appeals to this Court.

Petitioner, in the performance of his duties as a truck driver for respondent, accidentally backed his truck into an Army truck. Petitioner alighted from his truck and undertook, as was his duty, to obtain the license number of the driver of the Army truck. The driver of the Army truck was cooperative, and no difficulty occurred until a large man on the Army truck, the man known as ‘Willie’, whose status is unexplained and, as far as the testimony shows, was merely an intermeddler, undertook to ask petitioner why he was asking for the driver's license of the driver of the Army truck when he, the petitioner, was the one who had backed into the Army truck. The petitioner replied that ‘it was orders.’

Thus far the petitioner acted in the discharge of the duties of his employment, and it would have been well for him if he had stopped there.

If the episode had culminated then and there in an assault by ‘Willie’ on the petitioner, then the petitioner's acts and words in the performance of his duties could have been said to have inspired the assault.

Instead of stopping then and there, petitioner obtained, or there was handed to him, a stick, and he entered upon a contest with ‘Willie’ in the exchange of abusive language, each trying to excel the other in the intensity of the sting of his insults and abuse. By no stretch of the imagination could the acts of the petitioner in this connection have been intended by the petitioner to inure to the benefit of his employer or to further the accomplishment of the employer's instant business, to wit, the securing the Army truck driver's license or permit number.

The permit number seems never to have been secured, but its pursuit with the Army truck driver put aside or forgotten by petitioner in the intensity of the verbal exchange with ‘Willie’ until the purpose of securing it was finally abandoned at the direction of Rice, a fellow employee of the petitioner working with him on the truck, who told the petitioner to get into the truck and to ‘forget it.’

Petitioner yielded to this suggestion or direction and got into his truck, and the assault upon him by ‘Willie’ immediately followed. This perhaps demonstrated petitioner's victory or superiority in...