Rumbolo v. Erb

Ct. of Common Pleas of NJ

Rumbolo v. Erb

20 A.2d 54, 19 N.J. Misc. 311, 1941 N.J. Misc. LEXIS 47

CourtCourt of Common Pleas of New Jersey

DecidedApril 1, 1941

StatusPublished

Cited by8 cases

This text of 20 A.2d 54 (Rumbolo v. Erb) is published on Counsel Stack Legal Research, covering Court of Common Pleas of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rumbolo v. Erb, 20 A.2d 54, 19 N.J. Misc. 311, 1941 N.J. Misc. LEXIS 47 (N.J. Super. Ct. 1941).

Pincite

Opinion

McGrath, C. P. J.

Petitioner was employed to sweep and clean around the tavern ol respondent, and while sweeping, an argument arose as to what should be done. Petitioner claims that respondent assaulted him and permanently injured him. I have carefully considered the different versions of the affray and other evidence and find as follows:

First: The compensation court has no j urisdiction in a case of this character. Suits for assault could always be brought at common law by employer and employe and there is no reason why the act should cover a case of direct assault by the employer personally upon the employe. Such cases (as this one) usually involve mutual charges of assault and counter-suits and counter-claims and there are, of course, no provisions in the Compensation act for counter-claims or set-offs by the employer; nor is there any provision for adjustment of verdicts as there is in the case where the employe can also recover against a third party or a fellow workman. Obviously, it was not intended that the compensation court should have exclusive jurisdiction over the workman’s claim against his [312]*312employer for a personal assault. This would leave the employer with no remedy for his claim that the workman assaulted him or would require the employer to sue the employe in the common law court while the employe sued him in the compensation court. It is hardly necessary to suggest the absurdity of such a procedure.

Second: There is nothing to suggest a reasonable risk of assault in what the employe was called upon to do to fulfill his contract of service. An ordinary fight of this kind is not one of the risks of such employment. • The argument obviously arose because the petitioner chose to argue with his employer rather than to obey her reasonable instructions and there is uncontradicted evidence that he had made trouble for her on other occasions and that on this occasion he ran out when she threatened to call the police. It is also significant that the deputy commissioner did not find that there 'was an assault, but only that there was an “accident.”

Third: I find that the weight of evidence brings the case within the rule of Merkel v. Gillespie, 10 N. J. Mis. R. 1081, and recovery should be denied for the same reasons.

It is, therefore, * * * ordered that the petition be dismissed for lack of jurisdiction and failure of proof.

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McGrath, C. P. J.

Petitioner was employed to sweep and clean around the tavern ol respondent, and while sweeping, an argument arose as to what should be done. Petitioner claims that respondent assaulted him and permanently injured him. I have carefully considered the different versions of the affray and other evidence and find as follows:

First: The compensation court has no j urisdiction in a case of this character. Suits for assault could always be brought at common law by employer and employe and there is no reason why the act should cover a case of direct assault by the employer personally upon the employe. Such cases (as this one) usually involve mutual charges of assault and counter-suits and counter-claims and there are, of course, no provisions in the Compensation act for counter-claims or set-offs by the employer; nor is there any provision for adjustment of verdicts as there is in the case where the employe can also recover against a third party or a fellow workman. Obviously, it was not intended that the compensation court should have exclusive jurisdiction over the workman’s claim against his [312]*312employer for a personal assault. This would leave the employer with no remedy for his claim that the workman assaulted him or would require the employer to sue the employe in the common law court while the employe sued him in the compensation court. It is hardly necessary to suggest the absurdity of such a procedure.

Second: There is nothing to suggest a reasonable risk of assault in what the employe was called upon to do to fulfill his contract of service. An ordinary fight of this kind is not one of the risks of such employment. • The argument obviously arose because the petitioner chose to argue with his employer rather than to obey her reasonable instructions and there is uncontradicted evidence that he had made trouble for her on other occasions and that on this occasion he ran out when she threatened to call the police. It is also significant that the deputy commissioner did not find that there 'was an assault, but only that there was an “accident.”

Third: I find that the weight of evidence brings the case within the rule of Merkel v. Gillespie, 10 N. J. Mis. R. 1081, and recovery should be denied for the same reasons.

It is, therefore, * * * ordered that the petition be dismissed for lack of jurisdiction and failure of proof.

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20 A.2d 54, 19 N.J. Misc. 311, 1941 N.J. Misc. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rumbolo-v-erb-njctcompl-1941.

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