Stark v. Martin Drug Co.
| Citation | 37 A.2d 651 |
| Decision Date | 16 May 1944 |
| Docket Number | No. 63157.,63157. |
| Parties | STARK v. MARTIN DRUG CO. |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Proceedings under the Workmen's Compensation Act by Mark Stark, claimant, opposed by Martin Drug Company, employer.
Petition dismissed.
David Cohn, of Paterson, for petitioner.
John W. Taylor, of Newark, for respondent.
STAHL, Deputy Commissioner.
A formal claim petition having been filed by the petitioner, claiming compensation benefits under the terms and provisions of the Workmen's Compensation Act of New Jersey, as amended and supplemented, N.J.S.A. 34:15-1 et seq., and an answer having been duly filed by the respondent, the matter came on for hearing before me at Paterson.
Petitioner testified that he had been employed by the respondent since March 4, 1940 as a general handy man and clerk. He stated that on December 2, 1940, while working at his regular job about 11 P. M., a Mr. Dienges, who was employed by the respondent as a truck driver, came in and said there was a flood in the restaurant adjoining respondent's premises; that Dienges told Mrs. Goldstein, an officer of the respondent corporation, that he was going to fix the radiator in the restaurant, that Mrs. Goldstein then directed petitioner to accompany Dienges and help; that he walked into the restaurant and slipped and fell on the wet floor of the restaurant and that a radiator toppled over on his left foot causing injury to same; that he was thereafter taken to the Barnert Memorial Hospital by a Mr. Hoffman, a salesman, who happened to stop by about the time the injury occurred.
On cross-examination petitioner denied that anyone from respondent's insurance carrier had interviewed him and obtained a statement concerning the alleged occurrence. He admitted, however, that Mr. Dienges was not only employed as a part time employee of the respondent company, but was employed as the superintendent of the apartment building in which both the respondent's place of business and the aforementioned restaurant were located and in that capacity employed by a concern entirely unrelated to respondent company.
A Mr. Samuel Hoffman, a salesman, selling general merchandise, testified that he was in respondent's place of business between 10:30 and 11 P.M., on December 2, 1940, and that he saw petitioner working; that a man came in and told Mrs. Goldstein that a radiator in the restaurant was leaking; that Mrs. Goldstein told petitioner to go with this other man and help fix the radiator.
On behalf of respondent, Mrs. Goldstein, secretary and treasurer of the respondent company, testified that Mr. Dienges was employed as superintendent of the apartment house building in which respondent's store and the restaurant were located and that he was, also, employed as a part time worker by respondent company. She stated that, on the night of December 2, 1940, petitioner and Mr. Dienges, as well as herself, were employed in respondent's store. They were packing orders to be delivered the following day. Mr. Dienges lived in an apartment located in the same building and according to her his work as superintendent of the building, in charge of its maintenance, was entirely separate and distinct from any work performed by him on behalf of respondent company. She said that sometime during the latter part of the evening, Mr. Dienges, in her presence, told petitioner that there had been a complaint, by the operator of the restaurant, respecting a radiator therein located. She heard Mr. Dienges ask petitioner if he would help him with the radiator after they finished their work for respondent company, and petitioner said that he would. After petitioner and Dienges finished their work, for respondent about 10:30 P.M., they left respondent's premises and entered the restaurant premises. Thereafter Mrs. Goldstein learned that petitioner suffered injury while on the restaurant premises. She denied that she instructed petitioner to help Dienges.
John Dienges testified that he was employed as superintendent of the apartment building wherein respondent's business, as well as the restaurant, was operated. In addition to his work as superintendent of the building he, also, had part time work with respondent company. He is now no longer employed by respondent. As superintendent of the building he was in charge of the maintenance of the general premises. He stated that on the night of December 2, 1940 he was working in respondent's store with petitioner and Mrs. Goldstein and that while he and petitioner were working together he asked petitioner to give him a hand fixing the radiator in the restaurant, after they finished their work for the respondent company. Petitioner said that he would. They finished their work late in the evening and then he and petitioner went next door to the restaurant to fix the radiator. It was while they were on the restaurant premises that the petitioner met with...
To continue reading
Request your trial