text:
    Essex County Circuit Court.
    CROWN OIL COMPANY, INCORPORATED, A NEW JERSEY CORPORATION, PLAINTIFF, v. DANIEL E. EITNER, DEFENDANT.
    Decided June 7, 1938.
    For the plaintiff, Morris E. Schiffman.

    For the defendant, I. Arthur Levy.

   William A. Smith, C. C. J.

This matter comes before me pursuant to a notice served on the defendant on behalf of the plaintiff asking that the court order the defendant to pay to the plaintiff a sum certain on the second and sixteenth day of each month until judgment in the above case is fully satisfied, because the defendant is gainfully employed.

In this ease judgment has been entered, execution returned unsatisfied, order for discovery made, hearing thereon, and the return of the minutes of the hearing filed with the papers, which show that the defendant is employed by the United States government in the treasury department in the United States customs service and receives a salary of $2,000 a year payable semi-monthly.

On the argument the plaintiff conceded that he could not issue an execution and serve it on the United States government or its proper disbursing officer under the Garnishee Execution act. Rev. Stat. 1937, 2:26-182. But as I understand the plaintiff’s contention he claims to be entitled to an order of this court directing the defendant himself to pay out of this income an account of the judgment.

The provision of the Execution act under which this claim is made is Rev. 8tat. 1937, 2:26-181, which reads as follows:

“Order to debtor to pay out of income. In case it is made to appear by affidavit that the judgment debtor is entitled to or is in receipt of income other than from such trust funds as are exempt by law, the court or a judge thereof may make an order requiring defendant to show cause why he should not be ordered to make payments on account of the execution out of such income at stated periods in installments and upon such terms as the court or judge may direct.
“Upon the return of the order to show cause, or at any time to which the hearing thereon may be continued, the court or a judge may make an order for such payments as aforesaid, and at any subsequent time on application may modify the terms thereof as may be just.”

In the present matter no order to show cause was issued, but the matter was presented to me on notice and the defendant was represented on the return of the notice by counsel who was heard on the motion and no objection was made to the manner in which the application was made.

It has been held by onr courts that the reference to income contained in the statute (2:26-181), is sufficiently comprehensive to include wages. Spencer v. Morris, 67 N. J. L. 500; 51 Atl. Rep. 470; Oetjen v. Hintemann, 91 N. J. L. 429; 106 Atl. Rep. 213. The defendant here, however, objects to an order being made on the ground that it is against public policy to grant an order against the salary of a public official. The New Jersey case which deals with this question of public policy is Schwenk v. Wyckoff, 46 N. J. Eq. 560; 20 Atl. Rep. 259, which is a decision by our Court of Errors and Appeals and establishes the proposition that there cannot be an assignment of the pay of a public official either voluntary or involuntary and that the courts will not enforce or recognize any such assignment.

The reasons for this rule are stated in the opinion as follows: “This restriction upon the general power to dispose of rights having a potential existence, is put upon the ground that the recognition of such assignments would operate prejudicially upon the public service. The considerations which led to this judicial result were in substance the following: It was apparent that the salary or remuneration incident to a public office, as a rule, were essential to a decent and comfortable support of the incumbent. If the officer should be deprived of this support, there would arise a hazard of his being driven to an inappropriate meanness of living, of his being harassed by the worry of straitened circumstances and tempted to engage in unofficial labor, and of the likelihood of his falling off in that official interest and vigilance which the expectation of pay keeps alive. It was because of these probable consequences that the courts refused to countenance any act or proceeding which might result in stripping the officer of his anticipated reward.”

The English cases cited by the court are: Flarity v. Odlum, 3 T. R. 681; Barwick v. Reed, 1 H. Bl. 627; Arbuckle v. Cowtan, 3 Bos. & P. 328; Davis v. Marlborough, 1 Swanst. 79; Lidderdale v. Montrose, 4 T. R. 248; Stone v. Lidderdale, 2 Anstr. 544; Wells v. Foster, 8 Mees. & W. 149; Palmer v. Bate, 2 Bro. & B. 673.

A case somewhat similar to this was considered by Mr. Justice Parker in the case of Oetjen v. Hintemann, supra, which was a review of an order requiring a judgment debtor to pay out of salary in installments. In that case the defendant held a public office or position and resort could not be had to the garnishee provisions of the Execution act (Rev. Stat. 1937, 2:26-182), because the salary of the official was under $18 a week and that provision of the statute could not be appealed to unless the salary was $18 a week or more, so the order for payment was made under the provision which I have cited, 2:26-181.

It might be said in passing that the garnishee provision of the Execution act, 2:26-182, specifically provides in 2:26-185 that the salary of a person employed by private or public municipal corporations, including county and state, may have their salaries garnisheed, and therefore this rule of public policy which has been referred to has been abrogated in so far as public officials are concerned who are engaged in the public service of the state, county or public municipal corporations. This abrogation, however, does not extend to the salary of officials of the United States government.

Mr. Justice Parker, in referring to the statute which I have quoted, 2:26~181, and those which preceded it, says: “But as respects all of these statutes, the rule applies that their provisions relating to the application of ‘income’ to the judgment debt do not reach the income, salary or remuneration of a debtor for official service due to the public. This is the language of the syllabus, in Spencer v. Morris, 67 N. J. L. 500, opinion for this court by Mr. Justice Dixon. And later on Mr. Justice Parker says: “So, that in my judgment the salary is invulnerable to an attack.”

The fact that in this case the order that is asked to be made is one directing the defendant to pay income as received cannot be supported on the theory that the rule of public policy is not violated, as no assignment, voluntary or involuntary. is made by the order. The reason for the rule requires that it may not be circumvented by the making of an order that the defendant must make the payment. The effect of the order if made is an involuntary assignment of the defendant’s wages.

Mr. Justice Heher in the case of Passaic National Bank and Trust Co. v. Eelman, 116 N. J. L. 279; 183 Atl. Rep. 677, in holding installment payments of the pension of a retired police officer may be levied on under an execution provided for in Rev. Stat. 1937, 2:26-182, recognizes this rule of public policy in holding that the rule does not apply where the public officer is retired on a pension and not subject to further call to public service, and the order is made pursuant to Rev. Stat. 1937, 2:26-181. The opinion (at p. 285) states as follows:

“And there is no declared public policy in this state that, in the absence of specific statutory provision to the contrary, exempts such pension moneys from the claims of the pensioner’s creditors. The rule against the assignment of the ‘unearned salary or remuneration’ of a civil servant, and its withdrawal from his use for the benefit of creditors, is grounded upon the theory that the deprivation or diminution of the economic security afforded the servant by the stipulated salary would prejudice the public service. Schwenk v. Wyckoff, supra. See, also, 56 A. L. R. 604 e.t seq. And this was likewise the underlying reason for such exemption of pensions for past services. Public policy imposed this as a safeguard only when the pensioner was liable to calls for active duty, and was therefore to be regarded as still in the service of the government. Even then, it seems, the protection did. not extend to the individual installment after the accrual of the right thereto. See Schwenk v. Wyckoff, supra.And further in the opinion the court states the general, if not the exclusive, test of the liability of a right or claim to garnishment is whether it is the subject of assignment, citing 28 C. J. 151.

It therefore being my conclusion that the question raised by the defendant has been settled in his favor by Mr. Justice Parker in the ease of Oetjen v. Hintemann, supra, the application for the order will therefore be denied.


source: Caselaw Access Project

author: Lawrence, C. C. J.

license: Public Domain

text:
    Monmouth County Circuit Court.
    JAMES KEATING AND ANN KEATING, EXECUTORS OF THE ESTATE OF JOSEPH KEATING, DECEASED, PROSECUTORS, v. EDGAR PHILLIPS & SON, INCORPORATED, AND THE SMALL CAUSE COURT, BEFORE WILLIAM AMMANN, A JUSTICE OF THE PEACE, DEFENDANTS.
    Decided May 23, 1938.
    For the prosecutors, Harry Edelson.

    For the defendants, Abraham R. Klitzman.

   Lawrence, C. C. J.

The writ of certiorari, the return to which is here considered, issued out of this court to bring up for review as to jurisdictional legality a judgment entered on February 15th, 1938, in favor of Edgar Phillips & Son, Incorporated, against the prosecutors, for $49.50, with costs, in the Small Cause Court, before William Ammann, a justice of the peace, residing and holding such court in the township of Neptune, in this county. The suit there sounded in contract. The propriety of resorting to the present prerogative writ in this court is indicated in Dufford v. Decue, 31 N. J. L. 302, and by statutory provision. Rev. Stat. 1937, 2:33-133, 134, p. 224.

The question involved is purely jurisdictional. Prosecutors urge that a Small Cause Court held by a justice of the peace in the township of Neptune has no jurisdiction in a civil suit such as that here involved. The point made is that the township is within the territorial jurisdiction of the First Judicial District of the county of Monmouth in which a District Court is established and has functioned continuously since the year 1913. See supra,, 2:8-4, p. 27. That court, it is claimed, had exclusive jurisdiction of the suit and the parties, since prosecutors reside within its territorial limits, one in the township of Neptune and the other in the borough of Belmar. That this is so is not denied. Both municipalities are situate within the boundary of the First Judicial District of the county of Monmouth, as defined by statute, supra,. They are named therein.

On the institution of the action in the Small Cause Court, before the justice of the peace in question, prosecutors appeared specially, by their attorney, submitted proof as to residence, and objected to the court’s authority to entertain the suit. On the objection being overruled, they withdrew and the justice, on ex parte proof of the debt claimed, entered judgment against them. They then sought and obtained the present writ of certiorari, the return to which is now before this court for review on two grounds, the first statutory and the second constitutional.

As to the first, they rely on a provision of the Small Cause act (Pamph. L. 1903, ch. 165, p. 251, § 1) as amended in 1923 (chapter 175, page 461, section 1), which, after reciting in detail the nature of the court’s jurisdiction, sets down two provisos, the second of which is, “provided, further, the said court shall not have jurisdiction over any cause or proceeding cognizable before a District Court where any defendant resides within a municipality wherein a District Court is established.” All acts and parts of acts inconsistent therewith were thereby repealed and the act took effect immediately. Examination fails to disclose any further change in the law, so far as the Small Cause act is concerned, and the amendment would appear to be applicable to the question here involved, unless other legislation germane and controlling is found.

Defendants claim that there is such legislation and refer to the District Court act of 1898 (chapter 228, page 556), section 31 of which as amended in 1908 (chapter 49, pages 76, 77) provided that “no justice of the peace or small cause court shall have jurisdiction over any cause or proceeding cognizable before a district court, where the defendant or defendants reside within any city or judicial district, where a district court is established, nor shall any justice of the peace resident within the limits of any city or judicial district where a district court is or may be established, exercise any civil jurisdiction whatever.” In Payne v. Mahon, 44 N. J. L. 213, 216, it was said that “the grant of jurisdiction is a necessary incident to the establishment of District Courts and the taking away of the jurisdiction conferred from other courts which, up to that time, had exercised it is germane to it.” The following cases are also pertinent: New Jersey S. P. C. A. v. Compton, 71 Id. 86; 58 Atl. Rep. 110; The Same v. Russ, 83 N. J. L. 450; 83 Atl. Rep. 961; The Same v. Whitney, 84 N. J. L. 136; 86 Atl. Rep. 61, and Rayner v. Benjamin, 88 N. J. L. 83; 95 Atl. Rep. 767.

However, section 31 of the District Court act was amended in 1920 (chapter 338, page 602) by adding a proviso that in judicial districts that are or may be created in counties of the state bordering on the Delaware river the justice of the peace or Small Cause Court should have the same jurisdiction in civil matters as before. Inconsistent acts were thereby repealed and the amendment took effect immediately. Again in 1921 (chapter 211, page 689) section 31 was further amended by the proviso that in judicial districts that are or may be created in counties in the state bordering on the Atlantic ocean the justices of the peace or Small Cause Courts shall have jurisdiction in every such District Court district in every suit of a civil nature where the debt, balance, damages or other matter in dispute does not exceed, exclusive of costs, the sum of $50, as if there was no judicial district in said county. The usual clause as to the repeal of inconsistent legislation was added.

It will thus be observed that the Small Cause act as amended in 1923, supra, which repealed all inconsistent prior legislation, appears to be out of harmony with the last cited amendment of section 31 of the District Court act in the effect on Small Cause Courts within the First Judicial District of the county of Monmouth (which county borders on the Atlantic ocean). The amendments obviously cannot be reconciled, relating as they do to substantially the same subject-matter. Prosecutors therefore argue that the amendment of 1923 to the Small Cause act repealed the amendment of 1921 to section 31 of the District Court act. They also urge that the latter violated article IV, section VII, paragraphs 4 and 11 of the state constitution relating to defective or insufficient titles to legislative acts and prohibiting special legislation regulating the internal affairs of towns and counties.

Since the present proceeding involves a judgment in the Small Cause Court, it would seem quite sufficient to confine consideration of the matter to the definition of jurisdiction as found in the general act relating to that court and such amendments to it as may have been made bjr the legislature from time to time, in order to ascertain the state of the law as it was in the jurisdictional sense at the time of the institution of the suit against prosecutors. So considered, it seems clear enough that factually they resided within the territorial limits of the First Judicial District of the county of Monmouth, in which there was an existing District Court, and that by the very terms of the amendment of 1923 to section 1 of the Small Cause Court act a justice of the peace residing and holding the court in the township of Neptune was without jurisdiction.

It is entirely too narrow an interpretation to place upon the language of the amendment, which undoubtedly repealed all inconsistent related prior legislation, that it must be limited to a single municipality in which there is a District Court. It naturally would also include a judicial district in which several municipalities are joined with an established District Court duly authorized to render the service contemplated to the exclusion of some other inferior court theretofore existing. Rev. Stat., 2:8-40. See, also, New Jersey S. P. C. A. v. Whitney and Rayner v. Benjamin, cited above. The conclusion is that the amendment of 1923 to section one of the Small Cause Court act repealed that of 1921 to the District Court act and deprived the justice of the peace holding the Small Cause Court in question of jurisdiction, with the result that the judgment brought up by the writ of certiorari should be declared void and for nothing holden.

But it may also be said that the amendment of 1921 to the District Court act violated article IV, section VII, paragraph 11 of the state constitution, as interdicted special legislation. It is clearly so. What substantial reason existed — or now exists — for giving a justice of the peace holding a Small Cause Court any jurisdiction in civil suits, whatever the amount involved, in j udicial districts in counties bordering on the Atlantic ocean, where District Courts are established, and denying such jurisdiction to justices holding Small Cause Courts in other judicial districts in the state not so situate is not apparent. The discrimination cannot he justified on any sound basis of reasoning and accents the character of the legislation as special and not general. Similar legislation was condemned in Board of Tenement House Supervision v. Mittleman, 104 N. J. L. 486; 141 Atl. Rep. 571, where the reason snght to be advanced in support of it was declared to be illusory, that is to say fallacious. Quoting from Van Riper v. Parsons, 40 N. J. L. 1, 9, it was there said: “Interdicted local and special laws are those that rest on a false or deficient classification. Their vice is that they do not embrace all of the class to which they are naturally related; they create preferences and establish inequalities; they apply to persons, things ox places possessed of certain qualities or situations, and exclude from their effect other persons, things or places that are not dissimilar in these respects.”

The reasons relied on by prosecutors for setting aside the judgment brought up by the writ are consequently found to be adequately supported by the law and authorities cited.


author: Jayne, C. C. J.

text:
    Atlantic County Circuit Court.
    GUARANTEE TRUST COMPANY, SUBSTITUTED TRUSTEE U/W SOPHIA BEW, DECEASED, FOR JOHN LEE DUNLAP, SECOND, AND THOMAS GREEN DUNLAP, Jr., PLAINTIFF, v. JACOB HOFFMAN, DEFENDANT.
    Decided May 20, 1938.
    For the plaintiff, Cole & Cole.

    For the defendant, William Charlton.

   Jayne, C. C. J.

This action was instituted to recover the deficiency alleged to be owing to the plaintiff on the bond of the defendant. The concomitant mortgage was previously foreclosed. The answer of the defendant avers that in the prosecution of the suit to foreclose the mortgage, this plaintiff, as mortgagee, failed to make certain tenants of the mortgaged premises parties. Guardian Life Insurance Co. v. Lowenthad, 13 N. J. Mis. R. 849; 181 Atl. Rep. 897; American-Italian Building and Loan Association v. Liotta, 117 N. J. L. 467; 189 Atl. Rep. 118; Polish Home Building and Loan Association v. Burinefsky, 119 N. J. L. 1; 194 Atl. Rep. 140.

The reply of the plaintiff, in addition to a general denial of the material averments of the answer, embodies the following- allegations: “Further answering the defenses, plaintiff says that: 1. Before the filing of the bill to foreclose it inquired of the defendant as to who were in the occupancy of the mortgaged premises, and he informed the plaintiff the only person in occupancy and possession was his mother, who was made a party to the foreclosure bill.

2. A few days before the time for filing of answer to the bill to foreclose expired, the plaintiff through its representative visited the mortgaged premises and found only Bose Hoffman in possession and inquired of her who if anyone else was in possession or occupancy, and he was told that she alone was occupying the premises, and the plaintiff relied upon this as being true, and alleges that it was true.”

The present motion draws in question the legal substantiality of these paragraphs of the reply. The reason assigned in support of the motion to strike them is that they are frivolous. An affidavit has been submitted tending to prove that the factual matters alleged are false and untrue. However, these allegations of the reply are not challenged as sham. Every notice of any motion addressed to a pleading shall specify the grounds thereof. Supreme Court rule 43.

At the common law frivolous pleadings were those which were obviously and grossly insufficient, idle and frivolous. Hogencamp v. Ackerman and Brown, 24 N. J. L. 133, 137. There is, of course, a clear distinction between a sham and a frivolous pleading. A frivolous pleading is always assumed to be true, while a sham pleading must be admitted or conclusively proved to be false. Sculthorpe v. Commonwealth Cas. Co., 98 Id. 845, 847; 121 Atl. Rep. 751. A frivolous pleading is one which on its face is legally unsubstantial, assuming its averments of fact to be true. Milberg v. Keulhe, 98 N. J. L. 779; 121 Atl. Rep. 713; National Surety Co. v. Mulligan, 105 N. J. L. 336; 146 Atl. Rep. 372. In modern practice a pleading is occasionally attacked by the contention that its allegations of fact are false and, even if assumed to be true, the pleading is legally insufficient. The ground or grounds of the motion must, however, be specifically stated in the notice.

In actions to recover an alleged deficiency on a bond and mortgage, the mere circumstance that the plaintiff in the foreclosure of the mortgage failed to make tenants of the mortgaged premises parties to the foreclosure suit, does not necessarily preclude the plaintiff in all circumstances from recovering the deficiency. See Harvester Building and Loan Association v. Elbaum, 119 N. J. L. 437; 196 Atl. Rep. 709; Stratford Building and Loan Association v. Wagner, 122 N. J. Eq. 452; 194 Atl. Rep. 440; Franklin Loan and Building Association v. Richman, 65 N. J. L. 526; 47 Atl. Rep. 426.

Moreover, the statutory provision requiring the foreclosure of the mortgage as the initial step in the proceeding for the collection of the debt has been regarded as a personal privilege and it has been held that the statutory requirement is not designed to secure any object of public policy. Thus a party may waive his privilege under the statute. Quick v. Corlies, 39 N. J. L. 11; Hellyer v. Baldwin, 53 Id. 141; 20 Atl. Rep. 1080; Van Aken v. Tice, 60 N. J. L. 377; 38 Atl. Rep. 20; Crosby v. Washburn, 66 N. J. L. 494; 49 Atl. Rep. 455; Andrus v. Burke, 61 N. J. Eq. 297; 48 Atl. Rep. 228; Callan v. Bodine, 81 N. J. L. 240, 243; 79 Atl. Rep. 1057.

Then, moreover, it would seem that a mortgagor and obligor on the bond might make such misrepresentations concerning those having leasehold interests in the mortgaged premises under him and pursue such a course of conduct in this regard as to be estopped from subsequently asserting in an action on the bond that leasehold estates which he presented did not exist, were not extinguished by the foreclosure of the mortgage. To create such an estoppel, however, it should be made to appear that the defendant obligor made a representation or concealment of the material facts inconsistent with the facts now asserted in his defense, knowing such facts to be otherwise than as represented. The representation must have been made with an intent to influence the conduct of the mortgagee in the foreclosure of the mortgage or have been made under such circumstances that a reasonably prudent man would suppose that the representation was intended to be acted upon by the mortgagee. Additionally, it must appear that the mortgagee to whom the representation was made was ignorant of the facts and without reasonable opportunity to otherwise ascertain them. It is also essential to prove that there was, in good faith, a reliance upon the representation whereby the mortgagee was induced to adopt a course of conduct in the prosecution of the foreclosure suit which is prejudicial if the mortgagor and obligor now be permitted to repudiate the representation. Subjecting to this test the allegations of the reply to which the present motion is addressed, it is at once observed that all of the essential elements constituting an equitable estoppel are not averred.

Estoppel is cognizable at common law either as a defense to a cause of action or to avoid a defense. At the common law an estoppel in pais need not be pleaded but is available under the general issue. 21 C. J. 1241. Where, however, estoppel in pais was relied upon to avoid a defense averred in a special plea, the better practice required that the estoppel be likewise specially pleaded. 21 C. J. 1244. Our own rules of pleading direct that an answer shall specially state any defense which is consistent with the truth of the material allegations of the complaint and any defense which, if not stated, would be likely to cause surprise, or would raise issues not arising out of the complaint. Supreme Court rule 58. The rules respecting the form and manner of pleading in the answer apply to a replication or reply. Supreme Court rule 70. See, also, Muhlenbeck v. West Hoboken, 99 N. J. L. 198; 122 Atl. Rep. 804; Scrymser v. Seabright Electric Co., 74 N. J. Eq. 587, 589; 70 Atl. Rep. 977.

The facts stated in the one or the other or both of these paragraphs of the reply are not sufficient to estop the defendant from asserting the defense averred in his special plea. The averments of the reply here under consideration fall short of alleging actual fraud or a definite understanding between the parties that the representations so made should be accepted and exclusively relied and acted upon by the plaintiff. They likewise fail to allege the essential elements of estoppel under the general doctrine. Central Railroad Co. v. MacCartney, 68 N. J. L. 165; 52 Atl. Rep. 575; Musconetcong Iron Works v. Delaware, Lackawanna and Western Railroad Co., 78 N. J. L. 717; 76 Atl. Rep. 971; Vineland v. Fowler Waste Manufacturing Co., 86 N. J. L. 342; 90 Atl. Rep. 1054; Briscoe v. O’Connor, 119 N. J. Eq. 378, 384; 182 Atl. Rep. 855. Counsel for the plaintiff does not point out in what respect these paragraphs of the reply are otherwise legally sufficient to avoid the defense pleaded in the answer.

A rule may be presented striking out these allegations of the reply as frivolous with leave granted the plaintiff to amend the reply if desired.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PHILIP MELUSO, PETITIONER, v. A. MELUSO & SONS, RESPONDENT.
    Decided May 3, 1938.
    For the petitioner, Meyer Friedman.

    For the respondent, McCarter & English (by Herbert R. Baer).

   A formal petition was filed in the above matter and an answer was duly filed by respondent.

H: :¡t H* Hí H* H< ❖

It is conceded that petitioner suffered a compensable hernia on November 29th, 1937, while employed by respondent at a weekly wage of $26; that thereafter petitioner appeared at St. Francis Hospital on December 13th, 1937, for an operation but due to the fact that he was suffering from bronchitis and asthma respondent was unable to operate on him; that thereafter petitioner was treated by respondent’s Dr. Hill for his bronchitis and asthma in an effort to overcome same so that an operation could be performed. Subsequently Dr. Hill determined that this could not be done and on February 1st, 1938, petitioner was given a truss and ordered back to work.

Whereupon I determined that petitioner suffered temporary disability from November 29th, 1937, to February 1st, 1938, for which he has not been paid.

Whereupon, it is ordered that the respondent pay to petitioner nine (9) weeks temporary disability at the rate of seventeen and 33/100 ($17.33) dollars per week amounting to one hundred fifty-five and 97/100 ($155.97) dollars.

It is further ordered that respondent pay to petitioner, in lieu of an operation, twenty (20) weeks’ disability at the rate of seventeen and 33/100 ($17.33) dollars per week amounting to three hundred forty-six and 60/100 ($346.60) dollars.

Further ordered that respondent pay to Meyer Friedman, attorney for petitioner, a counsel fee of thirty-five ($35) dollars as well as the stenographic fees of the hearing.

John C. Wegner, Referee.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN A. MOFFETT, PETITIONER, v. THOMAS A. EDISON, INCORPORATED, RESPONDENT.
    Decided May 19, 1938.
    For the petitioner, Hyman Busch.

    For the respondent, Mr. S. F. Larchar.

   This is an application of John A. Moffett, petitioner in the above entitled cause, praying for a commutation of $225 from the rear end of his compensation award pursuant to the provisions of paragraph 21, subdivision B, of the Workmen’s Compensation act.

sj: ^ &

Petitioner testified that he is indebted at the present time to Drs. William Epstein and Harry B. Epstein in the sum of $225 for medical and surgical services rendered by the said doctors to his wife, Pearl L. Moffett. He further testified that the purpose of the commutation is to make payment to the doctors covering the above indebtedness.

Pearl L. Moffett, wife of the petitioner, testified that she had been in ill health for a period of three years prior to January, 1938, and that on January 12th, 1938, and again on January 18th, 1938, she was operated upon at the North Newark Hospital by Dr. William Epstein for a removal of a chronic appendix; repair of the cervics; repair of cystocele and rectocele; and reinoval of adhesions therein. At this operation Dr. Harry B. Epstein assisted. The witness further testified that since the operation she has been fully restored to health.

Dr. William Epstein appeared as a witness on behalf of the petitioner and testified that he performed the two operations as hereinbefore described and that they were urgent, and that the patient made an uneventful recovery. He further testified that his bill of $225 for his services has not been paid.

Dr. Harry B. Epstein also appearing as a witness on behalf of the petitioner testified to the effect that he assisted his son, Dr. William Epstein, in both operations. He also testified that his bill for assisting in the operation has been included in the $225 charge made by Dr. William Epstein.

With this testimony the petitioner rested, and at this stage of the proceedings I called Thomas J. Holwerda as a witness on behalf of the bureau.' Mr. Holwerda testified that he had made an investigation of the present application and found that the purpose was to defray medical expenses incurred in the treatment of petitioner’s wife. He further testified that in addition to the bill of $225 owing to Drs. William Epstein and Harry B. Epstein, there was an unpaid bill due to the hospital. Mr. Holwerda, in submitting his recommendation, gave an emphatic disapproval on the ground that the purpose of such commutation was in direct violation of the provisions of paragraph SI, subdivision B, which section prohibits commutations for the purpose of satisfying a debt.

While the respondent produced no witnesses, it strenuously objected to the granting of this commutation on the ground that the purpose was not one permissible under the act.

Upon carefully considering all the evidence in this case, I am satisfied that the request must be denied on the ground that it lacks legal sufficiency of purpose. By referring to the language of the statute, a commutation may only be granted when it appears that the same would be for the best interest of the injured employe or would avoid an undue hardship to him. It further provides that no commutation shall be granted to satisfy a debt or to make payment to physicians, lawyers or other persons.

It is therefore on this 19th day of May, 1938, ordered that the petition for commutation herein be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM AUGIS, PETITIONER, v. IGOE BROTHERS, RESPONDENT.
    Decided April 4, 1938.

      For the petitioner, Geltzeiler & Honigfeld (David Roskein, of counsel).
    For the respondent, George E. Meredith.

   # # ❖ Hs & ❖ #

Prior to the first hearing held on this matter the petition was amended to allege that the petitioner “came in contact with and inhaled coal gas fumes resulting in accident.”

This case took seven days to try and it would serve no useful purpose to recite in detail the testimony of the various witnqsses.

The petitioner, by his own testimony, and that of his witnesses, attempted to show that he came to work on the morning of December 29th, 1936, and upon arriving in the machine shop or the shop adjacent to it detected an odor of gas, whereupon he went to the boiler room. When he arrived there he testified that the room was filled with smoke and gas and that the smoke was so dense that he was overcome with an attack of violent coughing and gagging and that he had to grope his way around to find the coal shutes in order to open them to let in some air; that thereafter he found his way to the water gauge and found that it registered only partly full whereupon he let more water into the boiler. According to the petitioner’s testimony these operations took about ten minutes. He testified that he then left the boiler room, went upstairs to inspect a machine in the nail room and having inspected it went back into the machine shop and as he reached his bench he collapsed. The petitioner further sought to prove by his testimony that the cause of this tremendous volume of smoke and gas in the boiler room was the installation of a new stoker and boiler and that it was not operating properly and that the flue from it to the smoke stack was not adequate.

The respondent produced a long list of witnesses all of whom testified that there was no odor of coal gas and no smoke in and around the boiler room, galvanizing shop and nail room on the morning in question and it is significant that the petitioners’ own witness, John Gessner, testified that he had not noticed any odor of gas nor did he see any smoke. The respondent further showed, through witnesses, that the stoker was automatically set at the lowest of three speeds and that this adjustment was not changed from the date of installation for a number of months thereafter and that the flue that was installed was adequate to take off all gases with the stoker adjusted to the lowest speed. The respondent further showed that if the rooms were filled with gas and smoke to the extent claimed by the petitioner there would necessarily have to be a back fire and that in turn would produce a warping of the plates. The respondent produced the seller of the equipment who stated that he made frequent inspections following the installation and at no time found evidences of back firing and stated that the new equipment functioned perfectly.

The respondent produced other witnesses notably the man in charge of the nail machine which required repair who testified that the petitioner never left the machine shop or nail room on the morning in question and that in order to reach the boiler room he would have to pass through the nail room. This testimony was corroborated by other witnesses. The respondent further produced and called the men who were in charge of the petitioner’s work, all of whom testified that they had no knowledge of gas and smoke in and about the boiler room in question and further that their first notice of it was at the time of the filing of the amended petition in the month of November, 1937.

The petitioner’s medical testimony tended to show that the petitioner was suffering from a hemiplegia and that he was, in his present condition, totally disabled as the result of the hemiplegia. Neither of these facts were disputed by the respondent. The testimony of all of the doctors indicated that the petitioner was suffering from a hypertensive vascular disease prior to this occurrence and it was shown from the hospital records that the petitioner presented a blood pressure of 240/120 on the date of his admission to the hospital and the doctor who took care of the man in the hospital testified further that he got no history of being overcome by coal gas or smoke from the patient when he was admitted to the hospital. The doctor further testified that the man gave a history of headaches for two weeks prior to his admission and this fact is corroborated by the petitioner himself who testified that he had been having headaches for a period of two or three weeks prior to December 29th, 1936, and that he took aspirin to relieve them. The petitioner also testified that he suffered frequent coughing spells while at work and took olive oil to relieve the coughing. The doctors on both sides testified that hypertensive vascular disease is a condition that is progressive when untreated, and that it usually results in a hemiplegia or in death with or without trauma.

It was the theory of the petitioner’s doctors that the coughing spell brought on a slow oozing hemorrhage which culminated in the man’s stroke some fifteen minutes later as he stood by his bench in the machine shop.

It was the theory of the respondent’s doctors that the violent coughing of a man who suffered from such an advanced degree of hypertension as the petitioner would have brought on a violent hemorrhage, considering the fragile condition of the man’s veins and arteries, and his stroke would necessarily have to occur simultaneously with the fit of coughing and the petitioner would be unable to walk up the stairs to the boiler room and then go a distance of some two hundred feet before the stroke would occur, having stopped on the way to inspect a machine.

The respondent, by its attorney, moved for a dismissal on the grounds that it had no notice of accident within ninety days. I find no merit in this contention for the reason that the act does not provide notice of accident but notice of injury.

The meritorious question involved is whether or not the petitioner’s present condition was brought on by the inhalation of gas and fumes or whether his condition is the result of the natural and progressive climax of a hypertensive vascular disease. The great weight of evidence leads me to conclude that the petitioner’s present condition is the natural result of this progressive disease. I reach this conclusion for many reasons. In the first place the respondent adduced convincing evidence to indicate that the petitioner was not even in the boiler room on the morning in question. Secondly, the petitioner’s testimony that he was overcome by gas and had to grope around to find ventilation and that he stayed in the boiler room in the presence of this gas for ten minutes coughing, choking and gagging, and that he then went up into the nail room where he inspected a machine and that he later walked some two hundred feet before his stroke occurred, stands alone. There is no corroboration of the petitioner’s testimony in this respect. Roach v. Yellow Cab, 6 N. J. Mis. R. 386; 141 Atl. Rep. 767. Further the petitioner would have the court believe that gas was escaping into an airtight room. The facts are to the contrary as it appears that there was a doorway leading from the boiler room at a higher level, with no door installed in it, so that the doorway was permanently open. It appears further that there were two coal shutes that hung loosely and permitted ventilation. Aside from this there was a window and another sizeable opening with loose boards thrown over it which would permit the escape of gas if it were present. It is also striking that this condition was apparent only to the petitioner and that no one else in the factory, although many of the employes were called, noticed or were aware of any condition of gas or smoke in undue quantities or in any quantity. It is also significant that the petitioner, when he came up from the boiler room was seen by two or more employes and they testified that he looked normal and gave no evidence of having had a violent coughing spell within a few minutes preceding. I, therefore, find that the petitioner was not exposed to coal gas as he alleges.

I further find from the medical evidence that the petitioner has failed to sustain the burden of proving that his condition was the result of exposure to coal gas causing him to cough violently and to choke.

It is conceded on both sides that the petitioner suffered from a pre-existing hypertensive vascular disease. Dr. Harry H. Satchwell and Dr. Lewis EL Looser appearing for the petitioner testified that a man suffering from this disease would, in the natural course of events, if untreated, and because of the progressive nature of the disease, either suffer a stroke or die. They testified, further, on cross-examination that it is not uncommon for a person to suffer a stroke while at rest or without any apparent external cause. Dr. Loeser testified that the man’s condition could be the result of a slow oozing hemorrhage which began two weeks prior to the alleged accident when the man first began to suffer daily headaches.

We, therefore, have three equally consistent theories as to the cause of the petitioner’s present condition. In this state of the proofs the petitioner has not sustained the burden of proving that his condition is the result of sudden and unusual exposure to coal gas. Nardone v. Public Service Electric and Gas, 113 N. J. L. 540; 174 Atl. Rep. 745. This case seems to be almost identical with the case of Ezyske v. Waverly Fur Dressing Co., 14 N. J. Mis. R. 218; 183 Atl. Rep. 902, where this bureau reached a similar conclusion.

Dor the foregoing reasons I find that the petitioner has failed to sustain the burden of proving that he was exposed to coal gas at his work and I further find that he has not sustained the burden of proving that his condition is the result of this alleged exposure.

It is, therefore, on this 4th da,y of April, 1938, ordered that the petition be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


author: Jayne, S. C. C.

text:
    AUDITORIUM KENNEL CLUB, A CORPORATION, PLAINTIFF, v. CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided June 13, 1938.
    For the plaintiff, Joseph A. Corio (H. Walter Gill, of counsel).
    For the defendant, Siracusa & Backer (Clarence L. Cole, of counsel).
   Jayne, S. C. C.

The defendant, by means of this motion, prays the allowance of a rule striking out the complaint. The specified reason underlying the motion is that the alleged cause of action is not legally maintainable.

Succinctly stated, the complaint alleges that on February 27th, 1935, the parties, as a result of mutual agreement, duly executed a written lease whereby the city granted and demised to the plaintiff the main hall including the stage and balconies in the Convention Hall situate beside the boardwalk at Atlantic City from June 28th, 1935, to September 9th, 1935, at a total rent of $165,000, the premises to he used and occupied by the plaintiff solely for the purpose of there racing dogs under the pari-mutuel system of wagering. The initial installment of rent in the amount of $25,000 was paid by the plaintiff to the defendant on March 1st, 1935, in compliance with the terms of the lease. Additionally, it is declared in the complaint that the plaintiff never entered into actual possession of the demised premises and that on June 14th, 1935, the plaintiff abandoned the avowed object of the lease and demanded of the defendant the return of the $25,000. The lease is attached to and expressly made a part of the complaint. Hence this action is being prosecuted in the effort to recover from the defendant the sum of $25,000 previously paid to the defendant by the plaintiff in performance of the covenant of the lease.

In approaching the consideration of the controversial points debated by counsel, it is well to recollect that in the suit in Chancery between State Eacing Commission and Atlantic Kennel Club, it was adjudged in September, 1934, that chapter 391 of the session laws of 1933 and chapters 56 and 179 of the session laws of 1934 were in defiance of the state constitution. The case of Gimbel v. Peabody, 114 N. J. L. 574; 178 Atl. Rep. 62, in which it was concluded by the Supreme Court that chapters 56 and 179 of the laws of 1934 were unconstitutional, was argued on January 17th, 1935, and the decision rendered on April 8th, 1935. On February 13th, 1935, the case of Hyman v. Long Branch Kennel Club, Inc., 115 N. J. L. 123; 179 Atl. Rep. 105, was argued before the Court of Errors and Appeals and in an opinion read on May 17th, 1935, it was concluded that all of these enactments were plainly unconstitutional and invalid. Significantly, the complaint in the present action embodies the following allegations: “When the lease aforesaid was executed both parties thereto understood and agreed that pari-mutuel betting provided for in the statutes aforesaid was the essential and necessary part of the leasehold contract without which privilege neither party would have entered into said lease.” In Streeper v. Auditorium Kennel Club (the plaintiff in this action) reported in 13 N. J. Mis. R. 584; 180 Atl. Rep. 212, the proceedings authorizing and creating the lease mentioned in the present complaint were set aside. Mr. Justice Case, speaking for the Supreme Court, observed, “the object of the lease agreement was palpably unlawful.” An agreement which stipulates for iniquity in that it is against the indubitable policy and spirit of the fundamental law of the state, is assuredly an illegal contract. The object of the lease was, by its express terms, definitely restricted to an unlawful undertaking.' The parties clearly infused into the lease elements which contaminate the entire agreement. A contract itself and its tendency are the tests of its illegality. The results which it may or may not have yet produced are not the proper tests. This lease could not have been enforced. The city could not have recovered from the lessee the installments of rent subsequently falling due even though the racing of dogs had not yet been actually undertaken.

In Church v. Muir, 33 N. J. L. 318, Chief Justice Beasley stated: “The general rule undoubtedly is, that courts will not assist a party either to execute or to undo an illegal transaction. If the forbidden agreement has been executed, the parties are left where they have placed themselves; if it remains executory, its performance cannot be legally compelled. The principle is embodied in the old common law maxim, ex turpi causa non oritur aciio. The rule has a wide scope, for it takes away all legal help from all contracts, whether under seal or by parol, which stipulates for the performance of an immoral act, or any act contrary to the provisions of a legislative act, or to the public policy of the common law. It is not necessary to refer to adjudications in support of a principle so universally admitted.”

Chancellor McGill, speaking for the Court of Errors and Appeals, in Hope v. Linden Park Association, 34 Atl. Rep. 1070; 58 N. J. L. (at p. 631), stated: “That rule is the application of the maxim ex turpi causa non oritur aciio. The maxim has its foundation in the public policy of discouraging illegal and corrupt agreements, by holding them to be void and refusing all judicial aid between the parties to them.”

“In Den v. Shotwell, 3 Zab. 465, 474, Chief Justice Green used this language: ‘But in dealing with illegal contracts, courts do not and cannot look to the interest of those who are parties to the illegal transaction. The law regards the welfare of society as paramount, and, in enforcing the law, courts cannot impair its efficiency or cripple its operation by considerations affecting the interest of those who are particeps criminis.’ ”

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“'The principle of public policy is this — ex dolo malo non oritur actio. ISTo court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or a transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground that the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff, so if the plaintiff and defendant were to change sides, and the defendant were to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.’ ”

“In Marlatt v. Warwick, 4 C. E. Gr. 454, Mr. Justice Depue said: 'The objection is rather that of the public, speaking through the courts, than of the defendant as a party to the contract. The law disallows all proceedings in respect of illegal contracts, not from any consideration of the relative position and rights of the parties, but upon grounds of public policy.’ ”

The same rule has been observed and followed by our Court of Chancery. Cases may, of course, be found in which Chancery has acted but has done so to protect the public welfare and to prevent the impending mischief which would arise from the performance of the illegal contract. In such cases equity has acted because the public interest required the relief. An acquaintance with our reported decisions on this subject discloses a continued adherence by our courts to the principle embodied in the common law maxim. The principle is to be recognized and regarded as a general rule of public policy. It is not difficult to discern in the decisions of our state a definite adoption of this policy and a disinclination to depart from it. In Pennington v. Todd, 47 N. J. Eq. 569 (at p. 572); 21 Atl. Rep. 297, Mr. Justice Dixon remarked: “An examination of the authorities will show that, while courts have uniformly admitted the impolicy of aiding plaintiffs in furtherance of their tainted schemes, yet they have not been unmindful of the added immorality of defendants in seeking to wrong plaintiffs also because of their own turpitude, and hence they have been sometimes perhaps too ready to perceive distinctions between the plaintiff’s claim and his improper acts in which it originated, so that a base defense might be defeated. This tendency received some adverse criticism in the New Jersey decisions above mentioned, on the ground that courts ought to proclaim the outlawry of such affairs from the first step to the last, not for the sake of the defendant who would cheat his associate in guilt, but in order to render the transactions as precarious and difficult as possible to those who might be inclined to enter upon them. This, undoubtedly, is the ultimate reason on which courts act, when they refuse to aid plaintiffs engaged in forbidden or nefarious enterprises.”

It is asserted on behalf of the plaintiff that the lease was entered into by the parties in good faith and without any intent to violate the law. This assertion cannot be rationally accepted. In Gimbel v. Peabody, supra, Mr. Justice Bodine said: “Those who can read can understand the constitutional provisions of this state * * Moreover, an examination of the lease itself reveals that there was then in the minds of the parties the likelihood that the lessee might be prevented by law from conducting its proposed business in the demised premises. The parties to the lease were unquestionably in pari delicto.

Then, next, it is argumentatively proposed that the facts alleged in the complaint disclose that the illegal object of the lease remained entirely unperformed at the time the plaintiff abandoned it. Tersely stated, the plaintiff thus seeks to invoke the so-called doctrine of locus poemlenlice and maintain this action on the theory of indebitatus assumpsit for money had and received.

In some jurisdictions, courts have held, as a corollary to the general rule, that until the illegal purpose of the agreement has been executed, there is a locus poemlenlice during which either party may repent, disaffirm the agreement and recover back money or property which he has advanced under it. In those jurisdictions, although the policy is different, the underlying purpose of the courts is the same. The purpose is to protect society from the influence of contracts made in disregard of the public weal by interrupting the progress of illegal undertakings before the evil object has been consummated and thus reduce the number of such transactions. Our courts have deemed it to be more protective of the public interest to proclaim the outlawry of such undertakings from the first executed step to the last. The following citations suffice to exemplify the trend of the pertinent decisions in our courts: Van Doren v. Staats, 3 N. J. L. 448; Watson v. Murray, 23 N. J. Eq. 257; Reeves v. Butcher, 31 N. J. L. 224; Sutphin v. Crozer, 32 Id. 462; Church v. Muir, 33 Id. 318; Gregory v. Wilson, 36 Id. 315; Price v. Pollock, 37 Id. 44; Ellicott v. Chamberlin, 38 N. J. Eq. 604; Pennington v. Todd, 47 Id. 569; 21 Atl. Rep. 297; Cone v. Russell & Mason, 48 N. J. Eq. 208; 21 Atl. Rep. 847; Brooks v. Cooper, 50 N. J. Eq. 761; 26 Atl. Rep. 978; Gennert v. Wuestner, 53 N. J. Eq. 302; 31 Atl. Rep. 609; Hope v. Linden Park Blood-Horse Association, 58 N. J. L. 627; 34 Atl. Rep. 1070; Wyckoff v. Weaver, 66 N. J. L. 648; 52 Atl. Rep. 356; Somers v. Johnson, 70 N. J. L. 695; 59 Atl. Rep. 224; Allfather v. Schlicher, 86 N. J. Eq. 1; 97 Atl. Rep. 491; Walsche v. Sherlock, 110 N. J. Eq. 223; 159 Atl. Rep. 661.

The so-called doctrine of locus poeniientice necessarily rests upon grounds of public policy in a case in which the factual situation warrants its adoption. It cannot be accommodated to the facts alleged in the complaint in the present action. Here the acquisition of a suitable arena was an integrant and essential segment of the illegal enterprise. This part of the venture was not in an executory state. See Ellicott v. Chamberlin, supra. The contention of the plaintiff is erected upon the premise that everything in furtherance of the illegal object continued to be lawful until a race was actually conducted and a bet placed on the result of the event. Essentially the same point was considered by our courts with some diversity of opinion in Huncke v. Francis, 27 N. J. L. 55; Sutphin v. Crozer (Supreme Court), 30 Id. 257; Sutphin v. Crozer (Court of Errors and Appeals), 32 Id. 462. In Huncke v. Francis, supra, the contract under consideration was that the defendant would hold the stakes and pay them to the winner of the race. The Supreme Court concluded that until the money was paid over, the contract Avas not executed but remained executory and subject to rescission by the plaintiff who could, upon rescission, recover the money deposited with the defendant. Mr. Justices Elmer and Potts based their dissenting opinions upon the fact that the contract to hold the money was itself illegal. In Sutphin v. Crozer, 32 N. J. L. 462, Mr. Justice Elmer delivered the opinion of the Court of Errors and Appeals in which his earlier view of the problem was adopted. Hensler v. Jennings, 62 Id. 209; 41 Atl. Rep. 918; Van Pelt v. Schauble, 68 N. J. L. 638; 54 Atl. Rep. 437.

Suppose a lease of a property is consummated for the exclusive purpose of storing and concealing therein stolen goods. Does the legality of such a transaction depend upon the commission of the contemplated theft and the actual use of the property for the intended purpose? Should the lessee be clothed with the right to recover the rent paid by him to the lessor unless he succeeds in stealing the goods and storing them on the demised premises? Suppose the lessee tried to accomplish his criminal objective and was unsuccessful.

There is no moral efficacy in a policy that permits an adventurer to proceed with his unlawful undertaking until he discovers the utter futility of his efforts and when hopeless of ail gain, repents and with the aid of the courts is re-established slalu quo anle conimctum. No court in any jurisdiction follows such a policy. There is naturally a type oí locus poenit entice when the police arrive on the scene. When on June 14th, 1935, the plaintiff announced its abandonment of the illegal object of the lease, antecedent events, to which reference has been previously made, had already imbued the plaintiff with despair. A perusal of the communication dispatched by the plaintiff to the defendant on that date, a copy of which is made a part of the amended complaint, makes evident the plight of the plaintiff. A few quotations from the letter are illuminating:

“Since the making and execution of said Lease, and since the passage of said Law, the Supreme Court of the State of New Jersey, has declared said Law unconstitutional, and greyhound racing operated under the pari-mutuel system in New Jersey, as unlawful; and since also the execution of said Lease, and the passage of said law, the Court of Errors and Appeals of New Jersey, has also declared that greyhound racing operated under the pari-mutuel system, is also unconstitutional and unlawful, and has also declared chapter 56, of the Laws of 1934, as being unconstitutional; and also, since the making and execution of the Lease aforesaid, one Elizabeth Streeper has instituted proceedings in the Supreme Coart of New Jersey, asking that said Lease made and executed between the City of Atlantic City, and the Auditorium Kennel Club, he set aside, and declared null and void, for the reasons as assigned in their action, and for the further reason, of the pronouncements by the Supreme Court, and by the Court of Errors and Appeals, of our State. This latter action is still pending, and the Supreme Court has not, until this date, rendered its opinion." “The officers of the Auditorium Kennel Club would like to perform the terms of their lease, that is, to have greyhound racing under the parimutuel system, in the Auditorium, in accordance with the term set forth in said lease * * “If the Auditorium Kennel Club was to take possession of the Auditorium, and install therein a track for the purpose of greyhound racing, and also install pari-mutuel machines for the operation of said races, and would actually operate races under said system, and in accordance with the terms of the lease, they would be violating the law, and would be subject to indictment, and upon conviction, guilty of a misdemeanor, submitting themselves to a prison sentence, and also a fine, within the discretion of the presiding judge."

Prom all of which it is certain that for the plaintiff the view ahead had become obscured by visions of prosecutions, convictions and possible imprisonment. Wherefore the plaintiff became contrite.

The plaintiff was obviously particeps criminis and for its own private advantage it is not entitled under the authority of our adjudicated eases to the aid of the court in its effort to undo the illegal transaction into which it voluntarily entered. In the circumstances unveiled by' the complaint, there are no considerations of public welfare to support the prosecution of this action.

In such a case where the facts are exposed by the complaint, the, objection to the prosecution of the action may be properly taken by-demurrer. Hope v. Linden Park Association, 58 N. J. L. (at p. 632); 34 Atl. Rep. 1070. A rule striking out the complaint may be presented.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PAULINE C. RAFFERTY, PETITIONER, v. DAIRYMEN’S LEAGUE CO-OPERATIVE ASSOCIATION, INCORPORATED, RESPONDENT.
    Decided June 11, 1938.
    For the petitioner, Maurice J. Cronin (George R. Milstein, Benjamin Dowden and Edwin J. O’Brien, of counsel).
    For the respondent, Clarence B. Tippett.

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The undisputed facts as developed in the evidence are essentially as follows: On December 2d, 1936, and for more than nine years prior thereto, William Francis Rafferty, petitioner’s decedent, was employed by the respondent in the capacity of sales supervisor in the metropolitan area. While his duties were primarily confined to selling the respondent’s products and obtaining new accounts, with full charge over the several salesmen in the metropolitan district, he was frequently called upon to perform special duties such as to entertain customers at the respondent’s expense and to attend various banquets at which the trade was represented. These special assignments were in addition to his regular work and invariably required the decedent’s presence during the evenings — some of these functions lasting until the early hours of the morning. lie received for his said services a salary of $250 per month, together with the use of an automobile furnished and maintained by the respondent. It so happened that the decedent was called upon to attend a dinner of the New York Restauranteurs’ Association on November 30th, 1936, which was held at Kean’s Chop House in New York City. This affair broke up early enabling him to arrive at his home in Maplewood before midnight. On December 1st, 1936, after finishing his regular day’s work, he was instructed by a Mr. Robert M. Mason, his immediate superior, to attend a banquet of the New York and New Jersey Milk Institute which was being held that evening at the Pennsylvania Hotel. Leaving the respondent’s office at No. 11 Bast Borty-second street, New York City, in the company of Edward C. Polley, a fellow-salesman, decedent drove to the hotel in his company-assigned car, arriving at the banquet hall a few minutes after seven o’clock. He was joined there by several other members of the respondent’s sales staff, including Mr. Mason. At eleven-thirty p. m., after the banquet was over, decedent journeyed to Hotel New Yorker, where a group of respondent’s customers was being entertained by Mr. Polley. A private suite of rooms had been engaged for the affair, and cocktails and hors d’oeuvres were served to the guests — the expenses of which were borne by the respondent. The festivities came to an end sometime between three and four o’clock in the morning at which time most of the guests, including the decedent, left the. hotel presumably for their respective homes. The weather at that hour was stormy and a light snow had covered the ground. Several hours later, Charles Miller, night watchman of the Western Union Telegraph Company, in making his usual rounds, noticed decedent’s car draw up to the curb and stop in front of his employer’s premises, situated at the foot of Hudson street, Jersey City, adjacent to the Morris canal basin. Hudson street begins at Exchange Place, one block east of the Pennsylvania Railroad ferry-house, runs parallel with the Hudson river, and ends at the Morris canal basin — there being no fence or barrier at the foot of said street to serve as a protection to the motorist and traveling public from the waters thereof. At approximately seven-thirty a. m., several of the Western Union employes began to arrive for work and because decedent’s car was partly obstructing the driveway leading from the street to the Western Union cable house they proceeded to push the car a few feet ahead in order to clear the driveway. Peering inside the car they observed the decedent apparently asleep and upon arousing him from his slumber they found him to be all right except that he appeared tired and in want of sleep. A short time later their attention was attracted when the car started in motion in a forward direction and plunged into the icy waters of the Morris canal basin less than seventy-five feet away from where it had been parked. Their frantic efforts to rescue the decedent proved of no avail for although the car was retrieved within ten or fifteen minutes by means of grappling hooks and a winch, equipment of the Western Union Telegraph Company, death had already taken its toll. It is by reason of Kafferty’s death that the petitioner, Pauline O. Rafferty, his lawful widow and the mother of his two infant children, Diane Marie Rafferty, a daughter born February 26th, 1928, and William Francis Rafferty, a son born September 22d, 1932, brings this proceeding to recover compensation from the respondent on the ground that his death occurred as a result of an accident, arising out of and in the course of his employment.

The burden of proof rests upon the petitioner to establish her right to compensation. The rule applicable to the case under consideration is ably stated by Mr. Justice Trenchard in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, “that the burden of furnishing evidence from which the legitimate inference can be drawn that the death of an employe was caused by an accident arising out of and in the course of employment rests upon the claimant.”

While there is no question but that the decedent met his death by accidental drowning on the morning of December 2d, 1936, when his car plunged into the Morris canal basin, the respondent controverts petitioner’s right of recovery upon the ground that his death was not the result of a compensable accident within the meaning and purview of the Workmen’s Compensation act.

The sole issue raised, therefore, is whether or not Baflierty’s death resulted from an accident arising out of and in the course of his employment with the respondent.

Upon carefully considering the evidence in the case and upon making an exhaustive research of the authorities, I feel reasonably satisfied that the accident which occasioned the death of Eafferty by drowning arose both out of as well as in the course of his employment. The words “out of” relate to the origin or cause of the accident; the words “in the course of,” to the time, place and circumstances under which the accident takes place. The former words relate to the character of the accident, while the latter words relate to the circumstances under which the accident takes place. An accident comes within the latter words if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during the time to do that thing. The accident, in order to arise “out of” the employment, must be of such nature the risk of which might have been contemplated by a reasonable person when entering the employment, as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.

As a general rule an accident occurring to an employe away from the employer’s premises while going to or returning from work does not arise out of and in the course of the employment. There are, however, exceptions to this rule which, for the sake of convenience, I shall classify under four groups or headings, as follows:

(1) Where Transportation is Furnished by the Employer to and from the Place of Employment. An injury sustained by an employe while riding to or from the place of employment in a conveyance furnished by the employer in compliance with the terms of the contract of hire or upon the ground of mutual benefit arises out of and in the course of the employment. Rubeo v. McMullen Co., 117 N. J. L. 574; 189 Atl. Rep. 662; Alberta Contracting Corp. v. Santomassimo, 107 N. J. L. 7; 150 Atl. Rep. 830.

(2) Where the Use of an Automobile or Other Form of Vehicle is Required in the Performance of the Contract of Service. The law is well settled in this state that an employe, authorized or required to use an automobile by his employer in the fulfilling of his contract of service, is still within the course of his employment while driving from the point of last call to his home where the car is garaged. Demerest et al. v. Guild et al., 114 N. J. L. 472; 176 Atl. Rep. 558; Sanford v. Charles H. Totty Co., 110 N. J. L. 262; 164 Atl. Rep. 458; Auer v. Sinclair Refining Co., 103 N. J. L. 372; 137 Atl. Rep. 555.

(3) Traveling Salesmen and Others Whose Duties Require Them to Travel from Place to Place. As an accepted rule in this as well as most other jurisdictions traveling salesmen are regarded as acting in the course of their employment so long as they are traveling in the interest of their employer’s business, including the whole period of time between their starting from and returning to their place of business or home. Foley v. Home Rubber Co., 89 N. J. L. 474; 99 Atl. Rep. 624. Within this rule the traveler, when overtaken by night, may reasonably seek the protection of an inn and still be regarded as acting within the course of his employment. California Casualty Indemnity Exchange v. Industrial Accident Commission of California, 53 Pac. Rep. (2d) 758.

(4) Necessary Travel While on Special Duly After Regular Working Hours. In his ordinary work, the employe knows that he has to be at the proper piace at a specified time to begin his services and continue then until a set time. Prior to the time set for beginning the service and after the services are ended for the day, the employe’s time is his own, and he may dispose of it as he pleases. But if, while so off duty from his regular employment, he is called to do an errand or sent on a mission by the employer, the courts which have spoken on the subject hold it a special service begun the moment the employe loaves his home, or. the place where the call comes to him, and ended only with his return. Such special employment, so begun and ended, may be implied from the surrounding circumstances. Nehring v. Minnesota Mining and Manufacturing Co., 258 N. W. Rep. 307; State Compensation Insurance Fund v. Industrial Accident Commission of California, 264 Pac. Rep. 514; Reisinger-Siehler Co. v. Perry, 165 Md. 191; 167 Atl. Rep. 51.

Tested by these well established principles as enunciated by the authorities in the above cited cases, it appears quite clear from the evidence in the case at bar that Eafferty’s employment properly falls within the classification under group 2, 3, and 4, exceptions to the general “coming to and returning from work” rule. The field of his employment, measured and limited, not by material space, but by his ability and resourcefulness to find, interest and retain as customers, persons and firms interested in the products of his employer, in a sense was boundless. His duties were indeed multitudinous. Eobert M. Mason, sales manager and decedent’s immediate superior, testified that although Eafferiy’s efforts in the main were devoted to selling, he (Eafferty) also acted in the capacity of contact man and trouble shooter, and was frequently called upon to represent the respondent at banquets. While thus authorized and expected to entertain prospects and to attend dinners given by the trade where there was reasonable likelihood of securing new customers or of creating a spirit of good will with old customers, decedent’s time and the methods employed were his own. Under such circumstances, the attendance by Eafferty at the banquet at the Pennsylvania Hotel during the early part of the evening on December 1st, 1936, and later at the informal party at the Hotel New Yorker, was in the nature of a special duty; his employment did not have its inception upon his arrival at the first hotel, nor did it end immediately upon his departure from the second hotel. It began the instant he left the respondent’s office to drive down to the Pennsylvania Hotel and continued during his stay at the banquet, during his travel enroute to Hotel New Yorker, during his stay there at the informal party given by his colleague, and during his travel from the latter hotel to his home in Maplewood. Unfortunately, through tragic circumstances, Rafferty never reached his home because it was while onroute that he met with this horrible accident.

The accident arose in the course of his employment because it occurred while he was returning to his home after the performance of a special duty for his employer. The accident arose out of his employment because it was the result of a risk directly related to conditions peculiar to the special nature of his employment. In the discharge of his services he was furnished an automobile by his employer; and the danger incident to the use of such automobile was a causative danger peculiar to his work; especially so, after long hours of extra service producing mental and physical fatigue which increased the hazards of auto travel. When the decedent turned off the main highway upon reaching Jersey City and thereafter parked his car along Hudson street, presumably because of the urge for sleep, his act in doing so cannot be considered a deviation because the very reason leading to such a course was a condition brought about by his employment, namely lack of proper rest and sleep after twenty or more hours of continual duty. In Matter of Connelly v. Samaritan Hospital, 259 N. Y. 137, it was held: “Whenever conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment.”

A case somewhat similar in point is that of Ford Motor Co. v. Industrial Commission of Utah, 231 Pac. Rep. 432, which was a proceeding to procure an award of compensation for the dependents of an employe of the defendant who sustained fatal injuries in an automobile accident, dying the following day. At the hearing of this proceeding it was found by the commission that the accident arose out of and in the course of the decedent’s employment, and an award was made accordingly. The sole question involved on appeal was whether this finding was supported by substantial legal evidence. It appeared that decedent was employed by defendant as a road salesman, but that his duties included the promotion of sales activities among retail dealers operating under the state branch of the defendant company. On the day of the accident which caused his death he was instructed by his manager to drive one of the cars made by defendant to a nearby city where defendant had an agency and there endeavor to induce the local manager to take up the sale of a new model of defendant’s car. During that day decedent and the local manager aforesaid discussed the proposition which decedent brought out at some length, both while driving about the city and while at a hotel. Dp to ten o’clock that evening no decision had been reached. At that time a suggestion was made that the men go to a dance which was being held in a nearby town. This plan evidently extended to one to take along a party including several ladies and it was on the drive undertaken for this purpose that the fatal accident to the decedent occurred. Defendant’s local manager testified at the hearing that while it was not his purpose to sell a car to the ladies whom he invited to accompany them, he knew they were going to buy a car and thought that he would like to show them this one. In affirming the award by the commission the court pointed out that since decedent was in attendance upon the local dealer for the express purpose of persuading him to take a car and since he admittedly labored all day long without closing a contract and was still so engaged when the ride in the demonstration car was suggested, it was but a reasonable act in furtherance of the defendant’s purpose in sending the decedent there to comply with the wish of the local manager, even to the extent of attending the dance in the company of the manager’s friends. The fact that these friends were taken along did not change the purpose or the nature of the ride, at least so far as decedent was concerned. He did what any good salesman would have done under the circumstances and it is a reasonable and legitimate inference to say that what he did was primarily for the sale of the car.

Also in the more recent cases of Kelliher v. New Haven Clock Co. (Conn.), 186 Atl. Rep. 559, and Kelly v. Ochiltree Electric Co. (Pa.), 190 Id. 166, the same principle was followed:

“Death of sales manager, whose territory included entire United States, and whose traveling expenses were paid by employer, killed in automobile accident between two and three a. m., in Morristown, Pennsylvania, while he was driving from employer’s office in New Haven, Connecticut, to attend buyers’ convention at Cleveland, Ohio, with employer’s permission, held compensable as arising in course of employment.” Kelliher v. New Haven Clock Co., supra.
“Death of salesman killed without the state while returning from convention of salesmen’s club held compensable, on ground salesman was performing services for employer, where employer organized club to promote sales by limiting membership to leading salesmen, offering various benefits to members, and furnishing instructions and arranged for trip and paid expenses.” Kelly v. Ochiltree Electric Co., supra.

In reaching its conclusion the court stated the following:

“It appears that the sole controversy in this case hinges on the question as to whether or not the decedent was in the course of his employment at the time of his fatal accident, and we are of the opinion that the referee’s findings of fact are warranted by the evidence. However, we are of the opinion that the evidence warrants a finding of fact that from the time decedent started from Pittsburgh, Pennsylvania, to attend the convention of the defendant company at Miami, that he was at all times subject to the control and direction of the defendant.' The evidence shows that from the time he was summoned to attend the dinner at Pittsburgh, the evening before the caravan of automobiles started for Florida, he was charged with a great many duties for the benefit of his employer. The employer paid all the expenses, mapped out the itinerary, expected him to stop at certain hotels, attend the meetings, and mingle with other salesmen, and all this was for the purpose of building up and improving the sales organization of the defendant company.” Kelly v. Ochiltree Electric Co., supra.

In the very recent case of John Prino, Prosecutor, v. Austin Co., Defendant, 120 N. J. L. 19; 197 Atl. Rep. 731, Mr. Justice Heher, speaking for the Supreme Court, applied the following rule:

“The criteria of a compensable accidental injury are, first, was the employment one of the contributing causes without which the accident would not have happened; and, second, was the accident one of the contributing causes without which the injury would not have been sustained. In appraising the evidence, probability and not certainty is the touchstone. Furferi v. Pennsylvania Railroad Co., 117 N. J. L. 508; Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 Id. 487; Kuczynski v. Humphrey, 118 Id. 321.”

The respondent, urging that the petitioner has failed in her proofs to make out a case under the Workmen's Compensation act, contends that the accident and resulting death were due to conditions unrelated to Rafferty's employment, to wit, the act of falling asleep and intoxication. I find little or no merit in this contention. Sleep may be a precipitating factor in causing an accident within the purview of the act, especially as in the instant case where it is induced by lack of rest after long hours of extra service. It was so held in the case of Dixon v. Andrews, 91 N. J. L. 373; 103 Atl. Rep. 410. The facts in that case, as stated’by the court in its syllabus, are as follows:

“On August 15th, 1916, the husband of the petitioner was a farm hand, whose particular employment on that day was to make a trip to Philadelphia with a truck wagon drawn by a team of mules. He left the farm between five and six o'clock in the afternoon, and at two o'clock the next morning was found dead sitting on the seat of the truck with his body crushed between the seat and the overhanging roof of a shed under which the mules were standing.
“Prom the circumstantial details in evidence, the judge of the Pleas determined that the decedent’s death was caused by an accident and that such accident arose out of and in the course of his employment.”

Mr. Justice Garrison, speaking for the Supreme Court, delivered the following opinion:

“The court was justified in finding that the injury of which the decedent died was not intentionally self-inflicted or the result of his intoxication. This left two hypotheses upon which to account for the manner in which such injury was caused, viz., that the deceased was asleep when the mules went under the low roof, or that he was negligent if he was awake. The latter hypothesis need not be considered, inasmuch as negligence is no bar to the recovery of compensation.
“The main contention is that the injury was not accidental iJ: the decedent was asleep; the argument being that sleep is not an accident. The act of going to sleep may or may not be an accident, depending upon whether or not it was designed; but the failure to wake up in time to avert a catastrophe is an accident in every sense of the word. If the going to sleep was not designed, it was accidental; if it was designed, it was negligence. In any event, the undesigned failure of the deceased to wake up until he was crushed between the seat and the low roof was purely “accidental” in the sense in which the term is constantly and correctly employed. Palling out of bed asleep is an accident even if the sole design in going to bed was to go to sleep. The sole case in which falling asleep is clearly not within an employment is that of a watchman or similar service where the servant is employed expressly to stay awake. In such case the failure of the servant to do the one thing he was specially employed to do is in effect an abandonment of his employment. Such seems to have been the recent case of Gifford v. Patterson, 222 N. Y. 4.
“The judgment of the Burlington County Common Pleas is affirmed, with costs.”

While it may be conceded that Rafferty had indulged in cocktails with other guests during the evening’s festivities, there is not one scintilla of evidence purporting to show that he was intoxicated or in a semi-intoxicated state during the entire evening. The testimony of Dr. Alex O. Goettler, noted toxicologist, indicating that a post mortem examination revealed .06 per cent, of grain alcohol in the brain of deceased, falls short in giving rise to any reasonable inference that Rafferty was intoxicated at the time of the accident or immediately prior thereto. Dr. Goettler, by his own method of classification of the various stages of intoxication, testified that one with a content of .06 per cent, alcohol in the brain is not in a state of intoxication but is comparable to a person having had one or two drinks.

The burden of proof which rests upon the petitioner to establish her right to compensation has been met. The evidence furnishes a basis of rational inference, tantamount to legal proof of the fact that decedent’s death resulted from an accident which arose out of and in the course of his employment, with the respondent.

I find, therefore, that the petitioner and her two infant children, Diane Marie Bafferty, a daughter, and William Francis Bafferty, a son, all of whom were actual members of the decedent’s household at the time of the accident and death and wholly dependent upon deceased for support and maintenance, are entitled to compensation from the respondent as total dependents, together with allowances for statutory burial in the sum of $150.

*******

John J. Stahl, Deputy Commissioner.


author: Delmar, C. P. J.

text:
    Bergen County Court of Common Pleas.
    JOHN M. BALLINGER, PETITIONER-APPELLANT, v. WAGARAW BUILDING SUPPLY COMPANY, RESPONDENT-APPELLEE.
    Decided June 27th, 1938.
    For the petitioner-appellant, Nathan Rabinowitz.

    Contra, Kalisch & Kalisch.

   Delmar, C. P. J.

A petition was filed in this cause alleging that on or about July 1st, 1936, the appellant suffered an accident arising out of and in the course of his employment with the appellee; that while working on a machine making building blocks, composed of sand, ashes and cement, sand and stone entered a mole on his left foot, causing an irritation which produced a melanoma. The appellee denied that there was any accident. After a formal hearing the Workmen’s Compensation Bureau found “that the condition is purely occupational and is not the result of an accident arising out of and in the course of employment,” and dismissed the petition. From this determination of the bureau the petitioner appealed to this court.

The appellant contends, first, that the only point at issue is whether or not the petitioner’s condition was the result of occupational disease or an accident or accidents; i. e., if not an occupational disease, that the petitioner should recover on the theory of an accident; second, that the appellant’s disease was, in fact, caused by an accident; third, that if the appellant’s disease was not due to a single accident, it was due to a series of them, and is therefore compensable.

The respondent contends that the appellant’s disease was caused by the continuing daily irritation of a mole on his left foot over a long period of time; that no definite time was fixed by the testimony when an accident occurred; that, in fact, the petitioner did not suffer as the result of an accident, and therefore cannot recover.

I find from the evidence that the appellant was employed by the respondent continuously from the month of April, 1935, until the month of August, 1936, at which time he was compelled to stop work by reason of his physical incapacity; that during such time his occupation required him to attend a machine used for making cement blocks; that sand and ashes used in making these blocks were fed to the machine by a chute from the floor above, and that in the operation of the machine a quantity of the mixture was continually thrown off, some of it being deposited in the shoes of the appellant, by reason whereof he was obliged to empty them as often as twice a day; that prior to the month of July, 1936, the appellant apparently enjoyed good health; that from birth he had on the outer aspect of the instep of his left foot, in the mid-metatarsal region, about an inch above the little toe, a dark pigmented mole, about the size of a dime. This mole was of a non-malignant character, and never caused the appellant any trouble until the month of July, 1936, at which time, or during the following month, it turned into or was replaced by a melanoma, which was removed by operations during the following August and September.

It is for the incapacity caused by this disease that the appellant claims compensation, and which he attributes to an accident which he says occurred on July 15th, on which day he suffered with severe pain in the afternoon; and after finishing his day’s work, when he went to take his customary shower, in order to remove the sand from his feet, he found that his sock was stuck to his foot at the site of the mole, and there was a tan stain on the mole which looked to him like blood. Sand and ashes were stuck around it, and there was a scratch on it, about the size of the head of a pin.

Thereafter the mole started to swell and get red. The swelling persisted for several weeks, when it started to ooze, as the result of which he consulted a doctor, who sent him to the Paterson General Hospital, at which place he was examined by another doctor. He remained in the hospital for three days, and an operation was performed on him for the purpose of removing the melanoma which had formed at the site of the mole. Hot long afterward a second and more extended operation was performed, which operation was supplementary to the first, and resulted in the removal of considerable tissue.

There is the usual conflict of medical testimony as to the cause of the melanoma.

I find that the weight of the medical testimony is that the melanoma was caused by sand constantly irritating the mole over a considerable period of time. There is no evidence that any more sand came into contact with the mole on July 15th than on any other day previous or subsequent thereto. It is just as probable that the region of the mole had commenced to swell by reason of sand irritating the mole on previous days, and that the pain felt on July 15th was only a symptom of a pre-existing condition, as it is that the sand coming into contact with the mole on that day caused the condition complained of.

There is no satisfactory evidence as to when the mole turned into a melanoma. There is no evidence that the sand coming into contact with the mole on July 15th was the cause of the melanoma.

I think it is a reasonable inference that the breaking of the skin on July 15th was caused by a swelling of the foot pressing against the shoe, causing the sand in the shoe to break the skin, and that this swelling is evidence of the preexistence of a melanoma; in other words, that the melanoma had at that time already developed to a point where it caused the foot to become swollen, and therefore that the condition observed by the appellant on July 15th was the first apparent symptom of a disease from which he was already suffering.

I find, therefore, that the appellant has failed to prove the happening of an accident on July 15th, by a preponderance of the probabilities.

Counsel for both sides are in agreement that the petitioner’s condition was either the result of an occupational disease or an accident. I do not find that this is so.

The Workmen’s Compensation act provides for compensation in two classes of cases; first, where there has been an accident; and, second, in certain types of occupational diseases specifically provided for in the act. If the employe suffers from disease caused by an accident, he may recover compensation for the disability due to the disease. There is a class of cases, however, in which the employe suffers from disease contracted during the course of his employment, for which no compensation is provided in the act. Such a case is Martin v. Manchester Corp., Gordon’s W. C. Rep. (1912) 289, where a porter employed in an infectious disease hospital contracted scarlet fever, and it was held his condition was not caused by an accident. See, also, Finley v. Guardians, 7 B. W. C. C. 973, where the employe contracted typhoid fever from handling sewage; held, not compensable; and Meise v. Household Laundry Corp., 7 N. J. Mis. R. 372, decided by Workmen’s Compensation Bureau, where a tumor resulted from constant rubbing of the petitioner’s back; held, not compensable.

Having come to the conclusion that the appellant’s condition was caused by the continued irritation of a mole on his foot, rather than as the result of an irritation on a particular date, I think he is barred from recovering compensation under the law as laid down in Smith v. International High Speed Steel Co., 98 N. J. L. 574; 120 Atl. Rep. 188, in which case our Court of Errors and Appeals unanimously approved of the interpretation of the law by Mr. Justice Swayze, in the case of Liondale Bleach, Dye and Paint Works v. Riker, 85 N. J. L. 426; 89 Atl. Rep. 929, to the effect that where no specific time can be fixed when an accident is claimed to have occurred, there is no accident within the meaning of the Compensation act.

In the Smith case the employe became diseased by inhaling fine particles of metallic and mineral substances thrown into the air where the employe was working.

In the Hiker case the employe was affected with a rash cairsed by acids in the goods on which he worked.

In both cases the employes’ diseases were undoubtedly caused by the conditions surrounding their work, and may be said to have arisen out of and in the course of their employment. Both cases hold that there was no accident within the meaning of the Workmen’s Compensation act, having adopted with approval the ruling of the English courts, that there is no injury by accident within, the meaning of the act where no specific time or occasion can be fixed upon as the time when the alleged accident happened. This definition of an accident has never been departed from in this state.

It has been recognized and approved in the following cases: Meise v. Household Laundry Corp., supra; Downing v. Oxweld Acetylene Co., 112 N. J. L. 25; 169 Atl. Rep. 709 (decided by the Supreme Court in 1933), where the workman became diseased because of exposure to noxious gases; held not compensable. United States Radium Corp. v. Globe Indemnity Co., 13 N. J. Mis. R. 316; 178 Atl. Rep. 271; affirmed by the Court of Errors and Appeals, 116 N. J. L. 90; 182 Atl. Rep. 626 (decided in 1936). In this case the employe suffered from radium poisoning directly connected with his employment. Lancaster v. Mutual Chemical Company of America, 15 N. J. Mis. R. 744; 195 Atl. Rep. 515 (decided by the Workmen’s Compensation Bureau in 1937); cancer caused by chrome poisoning; held not compensable. Szalkowski v. Osborne, 9 N. J. Mis. R. 538; 154 Atl. Rep. 611 (affirmed by the Court of Errors and Appeals in 1936), 116 N. J. L. 93; 182 Atl. Rep. 632. This rule was also referred to in the case of North Jersey Foundry Co. v. Macchiarelli, 11 N. J. Mis. R. 281; 165 Atl. Rep. 578 (decided by the Supreme Court in 1933), in which compensation was allowed because the evidence showed a definite time when an accident had occurred.

The appellant cites a number of cases in addition to the foregoing in support of his contention that compensation will be allowed in cases where there was no accident in the ordinary sense of the word and where no definite time could be fixed when it could be said that an accident had occurred, compensation being allowed nevertheless. These cases, however, may be classified as those in which the employe was exposed to extreme conditions of heat and cold in the course of his employment, the test being whether the employe was exposed to a different risk than the public generally. See Long v. Canadian Car and Foundry Co., 41 N. J. L. J. 118, decided by the Bergen County Common Pleas Court, a case of pneumonia caused by exposure while the workman was running away from an accidental explosion; Kauffeld v. Pfund (Court of Errors and Appeals), 97 N. J. L. 335; 116 Atl. Rep. 487, a sunstroke case; Sullivan v. Clark (Workmen's Compensation Bureau), 3 N. J. Mis. R. 924, a frostbite case; George v. Edward M. Waldron, Inc. (Court of Errors and Appeals), 111 N. J. L. 4; 166 Atl. Rep. 166, a sunstroke case; Berinato v. Harper (Workmen’s Compensation Bureau), 15 N. J. Mis. R. 53; 188 Atl. Rep. 744, disease caused by exposure; Matthews v. Woodbridge (Supreme Court), 14 N. J. Mis. R. 143; 183 Atl. Rep. 150, frostbite case; Richter v. Du Pont, 118 N. J. L. 404; 193 Atl. Rep. 194; affirmed, 119 N. J. L. 427; 197 Atl. Rep. 276, pneumonia caused by exposure. In all of these cases the exposure to the unusual degrees of heat or cold was at a specified time, fixed by the evidence. This line of cases is clearly distinguishable from the one under consideration.

The appellant further contends that the burden of showing that his condition was not the result of an accident on July 15th was upon the respondent, citing Atchison v. Colgate, 3 N. J. Mis. R. 451; 128 Atl. Rep. 598; affirmed, 102 N. J. L. 425; 131 Atl. Rep. 921, and Newell v. Workmen’s Compensation Bureau, 9 N. J. Mis. R. 1123; 157 Atl. Rep. 243. The former case does not so hold, for in that case the injured employe sustained the burden of proving an accident coming within the statutes and the court’s remarks were directed to an unsuccessful attempt on the part of the employer to avoid liability by showing that the fall suffered by the employe was caused by a disease. The latter case merely cites the former case with approval. The burden of proving his cause of action always rests on the petitioner. Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458; Geizel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328.

The appellant claims that the rule laid down in the Smith and Biker cases has been departed from, or at least modified, and in support of his contention cites Cunliffe v. Deslaurie Column Mold Co., 5 N. J. Mis. R. 1037; 139 Atl. Rep. 411, in which case compensation was allowed, where the injuries complained of were due to two distinct accidents happening about six months apart. However, there was a finding in that case by the Workmen’s Compensation Bureau that the injuries were due to the latter accident, which finding was affirmed by the Common Pleas, and on certiorari by the Supreme Court. He also cites, in support of this contention, Carlton v. Celluloid Co., 8 N. J. Mis. R. 800; 151 Atl. Rep. 641, in which case the injuries were claimed to have been caused by three separate and distinct accidents occurring within a period of one month. Here it will be noticed that the incidents complained of were definitely accidents. The time of each accident was fixed, and the injuries were the result of the cumulative effects of the same.

If the appellant in this case could have definitely fixed two or three days on which he suffered traumas, and proved that his disease was caused by such traumas, his cause would be similar to that considered in the Carlton case. The appellant’s difficulty, however, is his inability to point with any degree of certainty to even one day on which any trauma occurred.

The appellant also cites a number of cases from other states which, however, are not controlling here; also cases in the federal courts arising under statutes in other states. These cases also are not controlling because the federal courts are bound to adopt the construction of such statutes by the state courts.

The judgment of the Workmen’s Compensation Bureau will, therefore, be affirmed, with costs.