Winter v. U.S. Gypsum Co.

• Citation: 20 N.J.Misc. 425,28 A.2d 545
• Parties: WINTER v. UNITED STATES GYPSUM CO. et al.
• Decision Date: 10 October 1942
• Court: United States State Supreme Court (New Jersey)

28 A.2d 545

20 N.J.Misc. 425

WINTER

v. UNITED STATES GYPSUM CO. et al.

New Jersey Department of Labor—Workmen's Compensation Bureau.

Oct. 10, 1942.

Proceeding under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq., by John H. Winter, compensation claimant, opposed by the United States Gypsum Company, employer, and the Hartford Accident and Indemnity Company, to recover compensation for injuries sustained by claimant when he was struck by a fellow employee.

Award for claimant.

Herman Blank, of Newark (David Roskein and Mortimer Wald, both of Newark, of counsel), for petitioner.

Wilbur A. Stevens and John E. Hughes, both of Newark, for respondent.

CORBIN, Deputy Commissioner.

From the testimony adduced it appears that the petitioner was in the employ of the respondent on October 3, 1941, and had been in the employ of the respondent for several months prior thereto. He was employed as a price clerk at a wage of $110 per month. The duties of the petitioner as price checker included looking up prices from a manual and in addition thereto to check errors made by other price clerks in invoices. The petitioner also had charge of a monthly chart on which he tabulated the errors of the pricers, which chart would be turned over to the supervisor, Mr. Allen. From the testimony adduced, it appears that as a result of the petitioner's checking of the work of one William Lautz and of the tabulations of the errors made by Lautz, an animosity arose in Lautz against the petitioner. The uncontradicted testimony is that on October 3, 1941, the petitioner was sitting at his desk which was near the desk of Lautz. It appears that Lautz reached over, took the petitioner's price manual from his desk and started to tear it. The petitioner objected and in turn took Lautz's manual. From the testimony it appears that the manuals referred to are essential to the performance of the employees' work and the testimony is uncontradicted that the petitioner took the manual from Lautz's desk so as to use it in the performance of his own duties at that time. When the petitioner took the manual from Lautz's desk, Lautz struck the petitioner in the jaw. The petitioner was taken to the Jersey City Medical Center where he was attended by Dr. Peters of Jersey City. A diagnosis of a bilateral compound fracture of the mandible was made. At the present time the petitioner complains of a loss of feeling on the left side of his face, difficulty in eating due to a lack of mobility, a click in his jaw, a drooling of saliva on the left side of his mouth, occasional pain in his jaw bones and an inability to play the trumpet due to the loss of sensitivity in his lips. It may be pointed out that the petitioner is a professional musician.

On behalf of the respondent the report of Dr. Mathew C. Pearce was offered in evidence.

The law in New Jersey in reference to cases of injuries as a result of assault is, in brief, that if the assault is the result of a personal feud and bears no relationship to the employment, then the injuries are not compensable. But if, however, the assault is brought about because of the employment the injuries are compensable. The fact that the assault was a deliberate and intentional act renders it nonetheless an accident. Foley v. Home Rubber Co., 89 N.J.L. 474, 99 A. 624, 626. There the Supreme Court held "the manner in which the accident is brought about is not at all of the essence of the matter; the vital question always being: Was the accident connected with the employment? If it was, then it arose out of the employment, provided it occurred in the course of the employment." And the fact that the injury was deliberately and intentionally inflicted does not remove the occurrence from the category of an accident as contemplated by the statute. Geltman v. Reliable Linen & Supply Co., Err. & App. 1942. 128 N.J.L. 443, 25 A.2d 894, 139 A.L.R. 1465.

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