text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALTER ZEHRER, PETITIONER, v. H. H. ROBERTSON CO., RESPONDENT.
    Decided February 10, 1939.
    For the petitioner, George F. CorriganJr.

    For the respondent, Clarence B. Tippett.

   sfc ^ 3* sis

The issue in the present case may be narrowed down to two questions, namely: (1) Did the petitioner sustain the burden of proving an accident arising out of and in the course of his employment with the respondent? and if so, (2) did the said accident cause the petitioner to suffer a personal injury, resulting in disability, either temporary or permanent, or both?

The first question resolves itself into one of credibility and must be decided in favor of the petitioner. The undisputed facts as developed by the evidence are substantially as follows: The petitioner, an ironworker of many years, was regularly employed by the respondent on the Squibbs job at New Brunswick, at wages of $80 per week. On August 9th, 1937, he was working in the capacity of sling' man, and as such, his duties required him to stand upon a pile of steel sheets about fifteen 'feet in height and to hook sheets to a hoist -which in turn lifted them to the second floor of the building then under construction. Shortly after one p. m. on the above day, while the petitioner was so engaged and while leaning over near the edge of the pile to reach for a water pail which was being returned to him by an electrical worker standing on the ground floor of the building, several of the top sheets skidded off the pile with petitioner aboard and fell to the ground a considerable distance below. From here on there appears to be a sharp conflict in the testimony.

Petitioner testified that during the course of the fall his body grazed a projecting sheet from a nearby pile, scraping his breast and tearing his shirt; but not considering himself seriously injured, he continued to pile the sheets which had fallen with the aid of a fellow worker. About one-half hour after the mishap petitioner noticed that he was bleeding at the site of his left breast which was directly at the point where his shirt had been torn during the fall. Upon the close of the day and when he was about to leave for home he met several ironworkers who noticed blood on his shirt. When he arrived home, upon inspection of his left breast he noticed a laceration on his left breast with the nipple missing, to which he administered an antiseptic. The following morning he was unable to return to work because of the pain in the region of his left breast; however, he journeyed to the job nevertheless and notified Patrick Nelson, the job steward, and requested him to notify the foreman, who had not as yet arrived at work, of the accident. The petitioner never returned to work thereafter on account of his condition. For several days he self-administered to himself with home remedies, and on August 17th, 1937, he received a letter from Dr. William C. Wilentz, the respondent’s physician, instructing him to report for treatment. Subsequent thereto the petitioner was treated by Dr. William O. Wilentz, Dr. Edward F. Klein and Dr. Milton Friedman., Petitioner further testified that prior to August 9th, 1937, he had always been in good health and very rarely lost any time by reason of illness. He admitted, however, that he underwent an appendectomy in 1906, suffered from influenza in 1918, and met with an aceident in 1927 when he was struck in the left breast by an object, resulting in a rib fracture, and that thereafter he noticed a little spot or lump formed over the left breast which was present on August 9th, 1937.

Several lay witnesses appeared in behalf of the petitioner and while none of them actually observed the accident, their testimony furnishes a rational inference of its occurrence. Patrick Nelson, the job steward of the ironworkers, testified that he had eaten lunch with the petitioner on the day of the mishap and that the petitioner’s shirt was not torn at that time nor was there any blood on it. He testified, however, that he noticed at quitting time, that the shirt which the petitioner was wearing was torn and bloody at the point of his left breast. He further testified that he had known the petitioner several years and that he, the petitioner, had enjoyed very good health prior to the accident and was a good all-around ironworker. He also testified that the Squibb job was not finished on August 9th, or August 10th; but that the petitioner had notified him on the morning of August 10th, 1937, that he would not be able to continue his work because of his injury, requesting that another man be put on in his (petitioner’s) place and to notify the foreman of the accident.

Charles Johnson, an ironworker who was working with the petitioner on the day in question, testified that shortly after one p. m. on August -9th, 1937, there was a delay in the hoisting of the sheets and upon looking in the direction of the pile he observed the petitioner standing on the ground with several sheets strewn around him. He further testified' that he went to Zehrer’s assistance and helped him straighten up the sheets and that he noticed at the time that the petitioner’s shirt was torn over the site of his left breast and that there was blood present on his shirt at that point. He testified that he had known the petitioner several years prior to the accident and that the petitioner had enjoyed good health and was a good ironworker prior to the occurrence on August 9th, 1937.

John Timko, also an ironworker, who had been working in the same gang with the petitioner on the day in question, appeared as a witness for petitioner and corroborated the testimony of Patrick Nelson and Charles Johnson.

Pearl Zehrer, the wife of the petitioner, testified that during the twenty years of married life, petitioner had enjoyed good health prior to the date of the accident and that he had not lost any work as the result of disability or illness during these many years. She also testified that the shirt which he had worn to work on August 9th, 1937, as well as his undershirt, was torn and bloody at the site of the left breast.

The respondent relied solely upon the testimony of Melvin Wines, an electrician employed on the same job, in an effort to disprove the occurrence of an accident within the purview of the act. Wines testified that on the day in question shortíy after resuming work following the noon-day recess, he asked the petitioner for a drink from the water pail, and while returning the pail to the petitioner he noticed the petitioner fall to the ground aboard several steel sheets which slid from the pile upon which he was working. He further testified that the petitioner did not injure himself in the fall and that he asked the petitioner and received a reply that he was unhurt.

A careful analysis of these facts lead to the inescapable conclusion that all the necessary elements to establish an accident within the meaning and purview of the Workmen’s Compensation act are present. In Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, the rule was laid down which has been generally followed and accepted in this jurisdiction, to wit:

“An accident is an unlooked for mishap or untoward event which is not expected or designed. An accident arises out of the employment when it is something, 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 an employment when it belongs to or is connected with what the workman has to do in fulfilling his contract; it may be an ordinary risk connected with the employment, or an extraordinary risk which is onty indirectly connected with the employment owing to the special nature of the employment. An accident arises in the course of employment if the employe is doing what a man may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time.”

Coming now to the second and equally vital question of cause and effect, namely whether or not the said accident caused an injury to the left breast which in turn aggravated a cancerous condition, considerable medical testimony was adduced by the respective parties, much of it containing a definite contrariety of medical opinion.

The undisputed evidence indicates quite clearly that the petitioner, although unaware of the fact, was suffering from a malignant growth in the area of his left nipple long before the occurrence of the accident on August 9th, 1937; that the injury resulting from the said accident consisted of a cut or laceration to the breast tearing away the nipple, thus exposing the open wound to infection and thus rendering the petitioner an easy victim to the ravages of the dreaded disease of cancer.

It is elementary that in order to warrant a recovery under the Workmen’s Compensation act it is not necessary that the injury resulting from the accident be the primary and sole cause in initiating the disability; the essential requirements of the statute being fully satisfied if, from the evidence, it appears that the accidental injury, acting as an exciting and co-operative cause, lights up a pre-existing disease, and thereby contributes in the hastening of its culmination in disability or death. Voorhees v. Smith Schoomaker, 86 N. J. L. 500; 92 Atl. Rep. 280; Winter v. Atkinson Frizelle, 88 N. J. L. 401; 96 Atl. Rep. 360; Lundy v. Brown & Co., 93 N. J. L. 469; 108 Atl. Rep. 252; Geizel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328

In the Yoorhees case, supra, the facts were quite similar to those in the instant case; Yoorhees, a man over middle age, working in defendant’s woodworking shop, at the time of the seizure just preceding his death, was furrowing certain heavy posts, pushing them forward against the knives of the furrowing machine by pressing his abdomen forcibly against the end of the post When he had finished part of them, he sat down evidently in great pain, and died three days later from internal hemorrhage, which defendant claimed was produced by rupture resulting from cancer. Held, that, though decedent was suffering from internal cancer, such facts warranted a finding that the unusual pressure of the posts on parts weakened by disease was the proximate cause of his death, and hence it was caused by -an accident arising out of and in the course of his employment, entitling his widow to compensation under the Workmen’s Compensation act.

Likewise, in the case of Cramer v. Littell, 38 N. J. L. J. 82, a recovery was had for the death of a workman who suffered from a punctured wound to his tongue caused by a tack, and which subsequently developed into cancer. It appears from the facts.that the decedent was an upholsterer and it was customary while working to hold a supply of tacks in his mouth.

In the case of Geizel v. Regina Co., supra, the court dealt ably with the subject of disease aggravated by an accident. In that case the victim, a chronic sufferer of diabetes, met with an accident consisting of his body being caught between the door and casing of an elevator and pinned there, sustaining crushing injuries to his abdomen and body and thereby exposing him to the ravages of the disease from which he died seventeen days later. Mr. Justice Trenchard, speaking for the Supreme Court, stated the following:

“If we assume that before or at the time of the accident the decedent was suffering from bodily disease, that does not necessarily defeat compensation. Death may be found as having been caused by an accident, although there was a diseased bodily condition prior to the injury without which death would hot have ensued, where, as may be inferred here, the undeveloped and dangerous physical conditions are set in motion producing such result.”

In other jurisdictions the courts have held similarly, permitting a recovery under the Workmen’s Compensation statute for cancer. Gaetz v. City of Melrose, 155 Minn. 330; 193 N. W. Rep. 691; Simpson Co. v. Industrial Commission, 337 Ill. 454; 169 N. E. Rep. 225, and Canon Reliance Coal Co. v. Industrial Commission of Colorado, 211 Pac. Rep. 868.

In the Gaetz case, supra, the decedent was a police officer for a city. While making an arrest, he was violently assaulted, and was injured in the abdomen. During the summer he developed a cancer in the right of his abdomen. Later he died as the result of the cancer. The trial court found that the cancer was the result of the injury, and that as a result of the injury he died. The evidence tended to show that decedent was sixty-four years of age; that prior to the injury he was in good health, and never walked lame; and after the injury he was distressed, walked lame on his right leg, suffered pain, and moaned in his sleep; that when the cancer became apparent it progressed very rapidly, and that medical testimony was to the effect that the growth or cancer might have been produced by a blow. The court affirmed a judgment for compensation, holding that the injury ultimately causing decedent’s death arose out of and in the course of his employment.

In the Simpson Co. case, supra, employer was engaged in the structural iron and steel business and claimant’s decedent was the foreman supervising certain work of the employer. At the time of the decedent’s injury two of the employer’s employes were hoisting by means of a block and tackle a steel plate weighing about five hundred pounds. They had it part way up, but it was too heavy for them to handle. Decedent, who was standing by, took hold of the rope, and after giving one pull his hand “crunched down” and slipped. lie let go of the rope and put his hand upon his back on the right side and said that he had hurt his hack. The evidence showed that prior to the day of the accident he was a strong, vigorous, and active man. He had never been sick and had never required the services of a physician. He was never well after the accident, but grew steadily worse until his death about six months later. Three months before his death X-ray pictures were taken and an operation was performed, which showed a lymphatic sarcoma. There was medical evidence which showed that the sarcoma was the result of the strain or sprain of the muscles of the back. An award in favor of the claimant was affirmed. The court said that if the act of the decedent in pulling on the rope either caused a sarcoma or aggravated or accelerated a sarcoma which already existed, and his death resulted therefrom, his •widow was entitled to compensation and the court could not say that the finding of the Industrial Commission as to the injury and cause of death was contrary to the manifest weight of the evidence.

In the Canon Reliance Coal Co. case, supra, claimant’s decedent was a coal miner and while engaged in picking up coal and throwing into a car, was struck by a chunk which flew up and hit' his cheek. According to his testimony before his death, the cheek did not begin to- swell for two or three weeks. Thereafter a malignant growth started in the nature of a carcinoma or cancer, which finally caused his death. Medical testimony was to the effect that cancer sometimes did follow a blow, but not always. The court held that the testimony was sufficient to support findings that the cancer was the proximate result of the blow.

The doctrine of aggravation of a previously impaired physical condition by an accident is exhaustively dealt with in Gorp. Jur., to wit:

“The aggravation, acceleration, or lighting up of a preexisting or latent infirmity or weakened physical condition may constitute a disability of such a character as to come within the meaning of workmen’s compensation acts, authorizing compensation for injuries, personal injuries, accidental injuries, accidental personal injuries, injuries from fortuitous accident, or personal injuries by accident, even though the accident would have caused no injury to a perfectly normal, healthy individual. Such acts contemplate latent or dormant ailments; they make no distinction between those having some structural weakness which renders them liable to injury from some unexpected sudden accident. It is not necessary, in order for an employe to recover compensation as an injured workman, that he must have been in perfect health or free from disease at the time he received the injury. Every workman brings with him to his employment certain infirmities; his employer takes him as he finds him and assumes the risk of a diseased condition aggravated by injury. Compensation is not made to depend upon the condition of health of the employe, or upon his freedom from liability to injury through a constitutional weakness or latent tendency; compensation is awarded for an injury which is a hazard of the employment, and it is the hazard of the employment acting upon the particular employe in his condition of health and not what the hazard would he if acting Upon a healthy employe or upon the average employe. If the injury is the proximate cause of his death or disability for which compensation is sought, the previous physical condition of the employe is unimportant and recovery may be had for injury independent of any pre-existing disease.” 71 Corp. Jur. 603, § 358-5.

"The acceleration, aggravation, or lighting up of a preexisting disease by an injury may constitute disability of a character such as to come within the meaning of workmen’s compensation acts authorizing compensation for injuries, personal injuries, accidental injuries, accidental personal injuries, personal injuries by accident, or personal injuries resulting from a sudden and tangible happening of a traumatic nature, producing a prompt result and occurring from without. Also an injury of a compensable nature may occur where an injury produces some disease which aggravates, accelerates, or lights up a pre-existing disease. So death may be regarded as having been caused by an injury although there was a diseased condition prior to the injury without which death would not have ensued, and partial or total incapacity may spring from, and be attributable to, the injury just as much where undeveloped and dangerous physical conditions are set in motion producing such a result as where it follows directly from a dislocation or dismemberment, or an internal organic change capable of being exactly located. It is immaterial that, if the accident had not occurred, the employe would or might have eventually, but at a later period, been disabled. In accordance with the aforesaid rules, an injury of a compensable nature occurs where the injury accelerates, aggravates, lights up, or is a contributing cause along with a disease such as appendicitis, arthritis, blood poisoning (septicaemia), Bright’s disease, cancer, dormant hysteria, gallstones, lymphatec sarcoma, multiple sclerosis, paralysis agitans, pneumonia, tuberculosis, and venereal- disease such as syphilis and gonorrhea, so as to result in death or disability.” 71 Corp. Jur. 608, § 363-F.

Conceding therefore that Zehrer, prior to the accident, was suffering from a malignant tumor or mass in the region of his left breast, the decisive question for determination is whether the trauma of August 9th, 1937, was a contributing factor in precipitating the diseased condition into a state of activity, necessitating surgical intervention in and about the traumatized area and requiring constant medical attention ever since; or whether the present cancerous condition is the natural result of the disease alone, progressing in its normal course.

Dr. Milton Friedman, cancer specialist and chief of the cancer department of Beth Israel Hospital as well as assistant chief of. several other hospitals, and Dr. Max Danzis, chief of the surgical staff of Beth Israel Hospital, testifying in behalf of the petitioner, were of the opinion that there was direct causal relation between the accident and petitioner’s present condition. Dr. Friedman testified that the petitioner has been under his professional care since September 13th, 1937; that the wound over the left breast is still unhealed; and that the prognosis is unfavorable. Dr. Danzis testified that he performed an operation upon the petitioner on November 17th, 1937, at the Beth Israel Hospital to correct a condition of cellulitis in the traumatized area involving abscesses in the pectoral muscles of the chest and under the left axilla. In reply to hypothetical question both Drs. Friedman and Danzis stated that the carcinoma, in their opinion, pre-existed the accident, but that the accident was the exciting cause in setting up the inflammation, cellulitis and infection; that these conditions in turn have altered the normal course of the cancer, thereby hastening petitioner’s fatal end.

On the other hand, Dr. William O. Wilentz, specializing in surgery and urology, Dr. Arthur R. Casilli, pathologist, Dr. Edward F. Klein, roentgenologist, and Dr. Otto Lowy, a clinical pathologist, appeared in behalf of the respondent and' testified in substance, diametrically opposite to the opinions of petitioner’s medical experts. In reply to hypothetical questions they stated that the trauma in the chest played no part in influencing the progress or growth of the cancer. Dr. Wilentz testified that he treated the petitioner at respondent’s request from August 23d, 1937, to October 21st, 1937; that he obtained a history of the accident; and that, upon examination, he found a crater-like ulcer over the left breast at the site of the missing nipple. Dr. Wilentz further testified that a biopsy disclosed the condition to be a mammary carcinoma — grade 2; that he believed it to be wholly unrelated to the accident because of its crater-like appearance with the presence of sloughing which is generally characteristic of chronic cancers; and that he referred petitioner to Dr. Klein for a deep X-ray therapy. Dr. Casilli testified that he made a microscopic examination of specimen of tissue taken of petitioner by Dr. Wilentz on October 12th, 1937, which examination revealed the presence of cancer- — - mammary carcinoma, grade 2. He further testified that the accident in his opinion, neither aggravated nor accelerated the cancer, because this type of cancer is of slow growth and is characteristic in spreading to secondary infection with sloughing and ulcerations. Dr. Klein testified that he rendered one deep X-ray treatment to the petitioner on October 19th, 1937, in accordance with a request of Dr. Wilentz, and that he thereafter referred him to the Both Israel Hospital of Newark because of convenience to the petitioner whose home is situated in Newark. Dr. Lowy testified that he made two examinations of the petitioner, one on November 27th, 1937, at the Newark Beth Israel Hospital, and one on April 9th, 1938, at the office of Dr. Milton Friedman; that on each occasion he found evidence of an ulcerated type of carcinoma; and that in his opinion there was no causal relation between the trauma and the petitioner’s present condition.

There is thus presented a closely balanced question of fact, involving the conflicting opinions of the medical experts of the respective parties. The question, dispositive of the issue, is whether or not sufficient evidence has been adduced to conclude that the accident was a contributing factor in causing the present disability. I am satisfied there is ample competent evidence to support such a conclusion.

After carefully analyzing the entire medical testimony, the conclusion is inescapable that there is in this ease an unbroken chain of events revealing a reasonably accurate history of cause and effect, to wit: (1) the pre-existing carcinomal mass in the left breast; (2) the accidental injury to the left breast which tore away the left nipple; (3) the inflammation, cellulitis, and infection of the traumatized area which followed as a direct consequence of the said injury; (4) the changing or altering the carcinoma from a closed one to an open ulcerous one, requiring constant active medical treatment; and (5) continuous incapacity since the accident.

The burden of proof which rests upon the petitioner to establish his right to compensation has been met. Because the limit of medical treatment has not yet been reached, I find that, he is entitled to an award of compensation for temporary disability at the rate of $20 per week from the date of the accident until such time that the ulcerous condition has completely healed, but not, however, to exceed the statutory limit of three hundred weeks. I further find that the petitioner is entitled to his medical, surgical and hospital expenses, costs and allowances of counsel fee.

It is therefore * * . * adjudged, determined and ordered, that judgment final be entered in favor of the petitioner and against the respondent in the sum of $20 per week for a period of seventy-eight and three-sevenths weeks representing temporary disability compensation from the date of the accident to the date of this order, and to continue thereafter at the same rate of $20 per week until such time that the ulcerated wound has healed, but not, however, to exceed three hundred weeks.

at $ $ $ $ * *

And it is further.ordered that upon the termination of the temporary disability period, the petitioner may, upon notice to the respondent, apply for final hearing for the purpose of determining the extent of the permanent disability.

John J. Stahl,

Deputy Commissioner.


source: Caselaw Access Project

author: Hartshorn®, C. P. J.

license: Public Domain

text:
    Essex County Court of Common Pleas.
    ISRAEL FEINSOD, PETITIONER-APPELLEE, v. L. & F. CONSTRUCTION CO., A NEW JERSEY CORPORATION, RESPONDENT-APPELLANT. MORRIS SAVITT, PETITIONER-APPELLEE, v. L. & F. CONSTRUCTION CO., AND NEW JERSEY MANUFACTURERS CASUALTY INSURANCE CO., RESPONDENTS-APPELLANTS.
    Decided February 23, 1939.

      Bor the petitioner-appellee Israel Beinsod, Louis L. Feimseth (Julius Stein, of counsel).
    Bor the petitioner-appellee Morris Savitt, David Boslcein.

    Bor the respondents-appellants, George F. Meredith and Kellogg dc Chance (by B. Bobinson Chance).

   Hartshorn®, C. P. J.

The two above cases are submitted together to this court for decision on the employer’s appeal from awards in the employes’ favor before the Compensation Bureau, for the reason that both employes, the petitioners, were employed by the same employer, one of the respondents, were both injured in the same accident, and the major question of law involved is identical. This major issue is as to the constitutionality and construction of Pamph. L. 1936, ch. 162, p. 381 (R. S. 34:15-40), covering the credit to be given the employer on the award against him, for the employe’s recovery against a third party tort feasor.

A word as to the purpose of this legislation will be helpful. Originally there was uncertainty whether the employe could obtain a double recovery when an accident occurred during, and in the course of, the employment, for which a third party was responsible, one, under the Workmen’s Compensation act from his employer, the other, at common law from the tort feasor. This unsettled situation led to the enactment of certain statutes (Pamph. L. 1913, ch. 174, p. 311; Pamph. L. 1919, ch. 93, p. 211; Pamph. L. 1931, ch. 279, p. 704), the 1931 act providing that the employe’s recovery from the third party should be credited on the award against the employer. • In the case of Deuchar v. Standard Accident Insurance Co., 117 N. J. L. 375; 189 Atl. Rep. 61, this act was construed to give the employer the benefit of the full amount of such third party recovery, up to the full amount of the award itself, despite the fact that the employe had been compelled to pay his attorney a very substantial attorney’s fee to obtain this third party recovery, which went to benefit the employer, not the employe. The policy of thus cutting down the award to the employe, by the amount of the fee which benefited the employer, naturally caused further question. So we find the legislature thereafter enacting the 1936 statute in question, providing for these attorney’s fees to be charged against the employer, who primarily benefited from the work done, and not against the employe. Such is the pertinent legislative history, in bare outline.

But the employer here claims that the specific provisions of the 1936 act render it invalid, at least as to the cases at bar, both as a denial of due process (United States Constitution, amendment 14, section 1), and also as an impairment of the obligation of a contract (United States Constitution, article I, section 10, paragraph 1), and presumably as well under the similar contract provisions of the New Jersey Constitution (article IV, section 7, paragraph 3). In addition, the employer claims that the act was improperly construed in the bureau, such construction resulting in its paying some $3,500 more than it should, even if the act were validly applicable. We proceed to the examination of these claims.

As to the constitutional question, it is claimed that the rights of the employer and employe inter sese are contractual, stem from the contract of employment, and are vested by the accident. That since the accident occurred January 13th, 1936, before the 1936 act took effect, on June 22d, 1936, the previous act, that of 1931 (supra), governs the rights of the parties. So that the attempt by the court below to apply the 1936 act, which lessens the employer’s credit on the award, below the credit fixed by the 1931 act, both took the employer’s property without due process and impaired the obligation of his contract. The constitutional issue thus is, whether the employer, the minute the accident occurred, acquired a vested right to have the attorney’s fee in question charged against the employe, and not against himself.

We must here bear in mind the fact that these attorneys’ fees are themselves but a mere item of deduction, from the credit claimed by the employer on the award against him. The question then is, when does the employer acquire a vested right to-this credit, with ox without this deduction of attorneys’ fees? Turning to the 1931 statute, we find it expressly stated: “The obligation of the employer under this statute to make compensation (to pay the award against him in full) shall continue until the payment, if any, by such third person or corporation is made.” It is thus clear that the accident itself gives the employer no right to any credit, nor does the employe’s judgment against the third party tort feasor. Even then, the employer is entitled to a credit on the award of exactly nothing. This credit is to be given the employer only if, and when, “payment * * * is made * * * by such third person.” It is the payment which gives rise to the credit.

Turning to the 1936 act, we find there the similar provision that, “In the event that the employe * * * shall recover and be paid from the said third person or corporation,” such credit shall be given. The 1936 act further provides: “(1) The obligation of the employer * * * to make compensation payments shall continue until the payment, if any, by such third person or corporation is made.” Here again the intent is clear that the credit stems from the payment.

In fact, employer’s argument, that the credit stems from the accident as a contractual obligation, proves too much. For if so, the parties’ rights would be vested, not by the accident, which is ordinarily tortious and certainly not contractual, but by the contract of employment, which occurred long previous to the accident. And no one has had the temerity to suggest that the legislature is bound, as to even such a substantial provision as the schedule of compensation, by the date the employe enters his employment.

But to return. .Since the employer’s credit stems from the payment by the third party, we turn thereto. This payment occurred, in both cases, May 27th, 1937, almost a year after the 1936 act took effect. Such being the case, the bureau has not attempted to give the 1936 act a retroactive effect. Since such act was in effect when the employer’s rights to the basic credit arose, such act, in its applicability to such credit, and its subordinate attorney’s fee deduction therefrom, impairs no contractual obligation and constitutes due process. Moreover, there is strength in the suggestion that the statutory change in the imposition of attorney’s fees, the prime point at issue, is merely procedural and not substantive. Murphy v. George Brown & Co., 91 N. J. L. 412; 103 Atl. Rep. 28; Doyne v. Stollerman, 3 N. J. Mis. R. 1171; 131 Atl. Rep. 68; Igoe Bros. v. National Surety Co. (Court of Errors and Appeals), 112 N. J. L. 243; 169 Atl. Rep. 841; Robinson v. Jackson, 14 N. J. Mis. R. 866; 187 Atl. Rep. 918. If so, it is well settled there is no violation of the contract clauses. Crew v. Trainor, 91 N. J. L. 87; 102 Atl. Rep. 905; affirmed (Court of Errors and Appeals), 92 N. J. L. 512; 105 Atl. Rep. 893; Lapp v. Belvedere (Court of Errors and Appeals), 116 N. J. L. 563; 184 Atl. Rep. 837; Sayers v. Lichtman, 117 N. J. L. 5; 186 Atl. Rep. 537.

As for the construction of the 1936 act, the fact that the parties differ widely is doubtless due to the complicated, interdependent, mathematical, terminology employed. One of the basic purposes for the enactment of the 1936 act was, as seen above, to impose the attorney’s fee, not, as previously, on the employe, but on the employer, for whose benefit the third party recovery primarily goes as a credit. The question now is, how to calculate this attorney’s fee, the employe claiming that it is to be calculated upon the entire third party recovery, the employer that it is to be calculated only upon a certain “reimbursement” to the employer, ordinarily a very much smaller sum, here in fact zero. The attorney’s fee is expressly defined in (5) of the statute as follows:

“* * * ‘Attorney’s fee’ shall mean such fee, but not in excess of thirty-three and one-third per centum (33 1-3%) of that part of the sum paid in release or in judgment to the injured employe or his dependents by said third party or corporation to which the employer or his insurance carrier shall be entitled in reimbursement under the provisions of this paragraph, but on all sums in excess thereof, this percentage shall not be binding.”

The employer reads this as meaning that this fee shall never exceed an amount equal to one-third of the “reimburse-ment” to the employer. This “reimbursement,” in turn, according to sections (3) and (4) can never exceed the employer’s payments on the award, which have been actually made previous to the payment of the third party recovery. Often, and in both the cases at bar, for instance, this “reimbursement” amounts to exactly nothing, for reasons hereinafter stated. In other words, if we adopt the employer’s construction, the statutory attorney’s fee here is zero. Furthermore, the employer’s construction gives no rational meaning to the last two lines of the sentence defining such “attorney’s fee,” as follows, “but on all such'sums in excess thereof, this percentage shall not be binding.” These words clearly refer to the same thing to which the rest of the sentence refers, i. e,the statutory deductions from the' employer’s credit. The clear meaning of the above-quoted attorney’s fee provision, admittedly somewhat inartistically expressed, is that the attorney’s fee, for the purposes of the statutory deduction, is to be composed of two items. The first is one-third of the “reimbursement,” or in the cases at bar, one-third of zero; the second, is the actual fee charged on the balance of the recovery from the third party. In the cases at bar, this becomes immaterial, since the attorney’s fee in fact charged is- one-third of the entire- recovery, an amount well within the statutory, as well as the customary, limits. Doubtless the reason for the different bases fixed for this attorney’s fee calculation, is that it was thought unfair to permit any charge in excess of one-third on the sum actually repaid the employer. But on the balance of the third party recovery, to be used only as a credit, more latitude is permissible, though same would still be subject to scrutiny by the court of its officer’s actions.

In view of the complicated, interdependent, mathematical, provisions of the statute (see particularly subsections (2), (3), (4) and (5)), the construction of these provisions, and the calculation of the appropriate credit to the employer and incidental deduction of attorney’s fee, will be set forth as an appendix to this opinion, in tabular form. But in this regard, it should be added that in all cases where the compensation and medical payments by the employer exceed the difference between the award and the net credit to the employer, so that there is an actual “reimbursement” to the employer, the statute creates a mathematical impossibility. For it provides in (3) that the statutory “reimbursement” is to be calculated upon the basis, inter alia, of a determined attorney’s fee. Then the statute provides in (5) that such attorney’s fee is to be calculated upon the basis, inter alia, of this “reimbursement,” as if same had been already determined. Obviously, no calculation can be based upon an undetermined factor, whichever way the problem is approached. But since there is no actual “reimbursement” in the cases at bar, and the statute is intelligible as here applicable, the above difficulty cannot be considered now as affecting the statute’s constitutionality or construction. Gorieb v. Fox, 47 S. C. R. 675; 274 U. S. 603.

Finally, as to the amount of Feinsod’s disability, the employer objects to an award of total permanent of eighty per cent. We must here bear in mind that employer’s medical experts admitted such disability to be seventy-five per cent. On the other hand, not only did certain of the employe’s physicians estimate the disability to be eighty per cent., but the testimony is clear that the employe was one hundred per cent, industrially disabled. He not only cannot perform his old job, but he cannot hold any kind of a job. He cannot even walk normally, or sit still for more than half an hour. Employer’s sole objection to the award of eighty per cent, is based upon the fact that the employe can wash his face and feed himself, as can a child of three. Clearly, the eighty per cent, award is proper on a general functional basis.

As to the costs and counsel fees in the Feinsod case, the employer did not admit seventy-five per cent, of total permanent disability until the ease opened for trial. Under such circumstance, his offer comes too late to avail him. Everhardt v. Newark Cleaning and Dyeing Co., 14 N. J. Mis. R. 270; 184 Atl. Rep. 200; affirmed, 117 N. J. L. 581; 189 Atl. Rep. 926. The costs and counsel fees allowed below will, therefore, be affirmed.

In the Savitt case, which was heard in the bureau before the Feinsod ease, but $150 was allowed as counsel fees to petitioner’s attorney for his extended work in this novel situation, this attorney, as a matter of fact, not being the one who benefits from the fees obtained on the third party settlement. Accordingly, the same counsel fees will be allowed the petitioner’s attorney in the Savitt case as were allowed the petitioner’s attorney in the Feinsod case, i. e., $550, $350 to be paid by the employer, $200 by the employe.

A determination may be entered in both cases in accordance with the above opinion.

Appendix.

Feinsod Case

Amount of third party recovery .............. $12,000.00

Award against employer .................... 12,779.72

Previous payments by employer .............1,370.00

Court expenses allowed by Bureau............ 200.00

Actual attorney’s fees ...................... 4,000.00

Third party recovery ....................... $12,000.00

Court expenses ................... $200.00

Attorney’s fees=(l) 1/3 of 0 [see below] =0 plus fee on balance. Actual fee=l/3 of $12,000= ........... $4,000.00

$4,200.00 4,200.00 Suit charges ..............

Net recovery from third party $7,800.00

This net recovery, $7,800, is less than the award of $12,779.72, therefore (3) of statute applies:

Award ........................... $12,779.72

Net recovery .................... ... 7,800.00

Liability of employer.................. $4,979.72

Less credit for previous payments ........ 1,370.00

Net liability of employer.......... $3,609.72

[Employer to be reimbursed for excess of $1,370 over $4,979.72 ...................... $0.00

Employe to receive for attorney’s fees (1) 1/3 of “reimbursement” (excess of $1,370 over $4,979.72), or 1/3 of 0 ............... 0.00

Plus (2) actual fee charged on balance of recovery 4,000.00]

Savitt Case

Amount of third party recovery............$12,000.00

Award against employer................ 10,190.00

Previous payments by employer ........... 1,382.00

Court expenses allowed by Bureau........... 200.00

Actual attorney’s fees ................... 4,000.00

Third party recovery ....................... $12,000.00

Court expenses ................. $200.00

Attorney’s fees=(l) 1/3 of 0 [see below] =0 plus fee on balance. Actual fee=l/3 of $12,000= .....$4,000.00

Suit charges ................$4,200.00 4,200.00

Net recovery from third party .....'......... $7,800.00

This net recovery, $7,800, is less than the award of $10,190, therefore (3) of statute applies:

Award ................................... $10,190.00

Net recovery .............................. 7,800.00

Liability of employer ..........:............ $2,390.00

Less credit for previous payments ............ 1,382.00

Net liability of employer .................... $1,008.00

[Employer to be reimbursed for excess of $1,382 over $2,390 .............■................ $0.00

Employe to. receive for attorney’s fees (1) 1/3 of “reimbursement” (excess of $1,382 over $2,390), or 1/3 of 0 ...................... 0.00

Plus (2) actual fee charged on balance of recovery 4,000.00]


author: Haktshobne, C. P. J.

text:
    Essex County County of Common Pleas.
    ANGELO FALCONE, AS ADMINISTRATOR AD PROSEQUENDUM OF MARGARET FALCONE, DECEASED, PLAINTIFF, v. BOARD OF EDUCATION OF NEWARK IN THE COUNTY OF ESSEX, A BODY CORPORATE, DEFENDANT.
    Decided March 2, 1939.
    For the plaintiff, Milton M. Unger (Sidney L. Seiler).

    For the defendant, Charles M. Myers.

   Haktshobne, C. P. J.

The question here is, how far the public school system of the state is, as such, liable for injuries to the person.

The complaint herein, in two counts, alleges, in substance, that on January 16th, 1936, while plaintiff’s intestate, a girl, was using a washroom and lavatory in a public school building on a school playground, in Newark, a slate slab, which acted as a screen, fell upon the girl, as the result of which she died. The complaint further alleges that this slab was both erected and maintained improperly, so as to constitute a place of danger, same constituting acts of positive misfeasance. Defendant now moves to strike the complaint. Defendant annexes affidavits to its motion, showing that the girl was climbing on this slab when it fell. But even assuming these affidavits can be now considered, the age of the girl, in the absence of further facts, renders her contributory negligence a jury question.

The real question is as to the effect of the statute providing, “No county, municipality, or school district shall be liable for injury to the person, from the use of any public grounds, buildings, or structures, any law to the contrary notwithstanding.” Pamph. L. 1933, ch. 460, p. 1550. This statute is carried over into the Revised Statutes (R. S. 18:5-30; 40:9-2). The reason for the enactment of this short, and apparently quite explicit, statute is not far to seek.

At the common law, the liability of municipal corporations, for the acts of their officers and agents, has given rise not only to a large amount of litigation, but to some fine distinctions. Furthermore, the application of these principles to the facts of the various cases, has given rise to “hardships and difficulties.” Hammond v. County of Monmouth, 117 N. J. L. 11; 186 Atl. Rep. 452; Allas v. Rumson, 115 N. J. L. 593; 181 Atl. Rep. 175. In the latter case, the court says, “There is some confusion in the adjudicated cases * * *, and the line of demarcation is not always clearly maintained. The difficulty usually lies in the application of the principle to the facts of the particular case.” Reduced to lowest terms, the principle apparently is, that a municipal corporation is not liable for the negligent acts of its agents, resulting in a common, indictable, nuisance, except where (a) there has been active wrongdoing, as distinguished from mere negligence, or (b) the municipal function, in the course of which the injury has arisen, has been proprietary, rather than governmental, in its nature. It would be a work of supererogation to go further, or to attempt to show the difficulty which the courts themselves have had in applying these very rules. The Allas case, supra, which arose prior to the 1933 act, in the course of a lengthy opinion, makes this sufficiently clear.

■From the above, it is evident that the legislature, in enacting the above statute, intended to clarify and simplify this complicated legal situation, at least as far as injuries to the person were concerned. It was, apparently, the legislative belief that public policy would be better served by imposing responsibility for wrongful injuries to the person, solely upon the individuals who committed these wrongful acts, and not also upon the public body itself. The legislature, doubtless, felt that the liability of this public body to indictment, was a sufficient curb upon such public officials, and that the public as a whole should not be penalized. Indeed, from a practical standpoint, the effect of the act upon the persons injured, in so far as our public school system is concerned, has been but small. For while at the present time, if the statute means what it apparently says, the action must be brought only against the individual who is directly to blame, plaintiff’s recovery is not limited by the pecuniary responsibility of that individual. For plaintiff has been assured of an additional responsibility equivalent to that of the municipal corporation itself. Pamph. L. 1938, ch. 311. See, also, R. S. 18:5-50.2, 50.3.

But be that as it may, no court can pass upon the economic wisdom of a legislative act. Indeed, no court has any option, but to enforce the clearly expressed will of the people’s elected representatives, the legislature. And, surely, no language could be clearer than the simple words of the 1933 act. That such act was intended to modify the common law, is further clear, not only from the generality of its language, but from the fact that such law is to apply, “any law to the contrary notwithstanding.”

Nevertheless, in their endeavor not to overrule the common law principles unnecessarily, the courts have found two exceptions to the statute. It has been held that personal injuries, arising from the use of streets and public ways, are not covered by the statute, since such streets or ways are not “public grounds, buildings or structures.” Hammond v. County of Monmouth, supra; Cohen v. Morristown, 15 N. J. Mis. R. 288; 190 Atl. Rep. 851; Selph v. Morristown, 16 N. J. Mis. R. 19; 195 Atl. Rep. 862 It has been further held that the act does not apply when the injury arises from the performance by the municipality of a proprietary, as distinguished from a governmental, function. This result is spelled out of the fact that it is “public grounds, buildings, or structures,” and not those of a private nature, to which the statute applies. Accordingly, a municipality remains liable for injuries arising in the conduct of a football game, to which an admission fee is charged. Leeds v. Atlantic City, 13 N. J. Mis. R. 868; 181 Atl. Rep. 892.

But in the present case, we are not concerned with streets or ways, but with a public building and structure, erected by a public school on a public school playground. And the function, there being performed by the public school, is definitely not proprietary, but governmental. For the New Jersey Constitution itself prescribes that, “the legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in this state between the ages of five and eighteen years.” New Jersey Constitution, article IV, section VII, subsection 6.

Plaintiff raises a further point in the attempt to avoid the pervasive force of the statute. He argues that the defendant, the “Board of Education of Newark, in the County of Essex/’ is not a “school district.” That this suggestion is thin, is obvious at first glance. And further consideration but confirms this view. For while the statutes repeatedly refer to school districts, almost the entire title, “Education,” in the Revised Statutes being concerned therewith (title 18), no school district exists which, as a legal entity, is subject to suit. The words “school district” constitute but a generic term, conveniently used to designate the territory within which school lands and buildings are grouped. Attorney-General v. Board of Education, 73 N. J. L. 301; 63 Atl. Rep. 93. However, the title to these lands and buildings is not in the “district,” but in the “Board of Education.” In addition, this board not only holds title to all the property of the district, out of which any possible judgment must be paid, and is in sole charge of its maintenance and control, but the “Board of Education” is the- entity to sue and to be sued, in regard to such “public grounds, buildings, and structures.” R. S. 18:6-15, 16, 18, 23; R. S. 18:7-59, 72. In other words, the only possible way in which the public school system of the city of Newark, which is termed, for convenience, the Newark school district, can be held “liable for the injury” in question, is by this very suit against this very defendant.

Either, then, the legislature intended that no such suit as this should lie against this defendant, or its use of the words “school district” in the statute in question were utterly meaningless, and must be held entirely nugatory. This court has no more right to adopt such an unreasonable construction than it has to question the policy of the act itself.

The complaint must be stricken.


author: Bkown, S. C. C.

text:
    WILLIAM J. MATHEWS, PLAINTIFF, v. UNDERPINNING AND FOUNDATION COMPANY, INC., A CORPORATION OF NEW YORK, DEFENDANT.
    Decided March 16, 1939.
    For the defendant, Wolber, Gühoóly & Yauch (John H. Yauch, Jr.)

    For American Mutual Liability Insurance Company, Edward B. McGlynn.

   Bkown, S. C. C.

In the complaint of the plaintiff he alleges that he was hired by the defendant, Underpinning and Foundation Company, to make X-ray examinations of prospective employes of that company at an agreed price. The services were rendered and have not been paid for and the plaintiff seeks to recover. 3STo mention is made in the complaint of the American Liability Insurance Company in any manner whatsoever. The defendant, Underpinning and Foundation Company, filed an answer denying all the allegations in the complaint and made no reference to liability on the part of the insurance company. Thereafter the Underpinning and Foundation Company filed a petition alleging, without sufficient details of a cause of action, that the American Mutual Liability Insurance Company was liable for the services rendered and referred to the allegations in the complaint stating that the insurance company was liable for the services therein mentioned and not the underpinning company and prayed that the insurance company be made a party defendant in the suit. An order was made as prayed for without notice to the insurance company. That company now moves to set aside the order joining it as a party defendant on the grounds that the allegations in the petition are sham and that the petition is inadequate in that it does not set forth a claim of the underpinning company against the insurance company but “merely” a claim of the plaintiff against the latter company. A reading of the affidavits filed on this motion leads to the conclusion that disputed questions of fact are contained therein and that the petition is not sham. Whether the petition is adequate and sufficient in law. depends upon the contents of the petition in meeting the requirements of the statute governing the joinder of parties and particularly R. S. 2:27-29. The parent statute pertaining to this subject is Pamph. L. 1933, p. 760, which provides in part: “In any action at law sounding in contract where any party alleges and it appears that some other person not then a party to the action is liable for the claim made against such party in the action, the court on application of such party in the action may make an order adding such other person as a party defendant in said action and directing a summons, duly tested, to which shall be annexed a true but uncertified copy of the said order and of the complaint filed in said action, be issued; which summons shall be served upon such person and the other parties to the suit and returned in the same manner as other writs of summons issued at a said court.” R. S. 2:27-29 provides In part: “Where, in an action at law sounding in contract, any party thereto alleges and it appears that some other person not then a party to the action is liable for the claim made against such party in the action, the court may, on application of such party in the action make an order, adding such other person as a party defendant in the action and directing a summons, duly tested, to be issued.” R. S. 2:27-30 provides in part: “There shall be annexed to the summons issued pursuant to section 2:27-29 of this title a true copy of the order mentioned in said section 2:27-29 and of the complaint filed in the action, which need not be certified. The summons shall be served upon the person made a party defendant in the action pursuant to said section 2 :27-29, and upon the other parties to the action, and shall be returned in the same manner as other writs of summons issued out of the court in which the action is pending.” While the wording of the act of 1933 is not exactly the same as the provisions of the Revised Statutes to which reference is made; nevertheless, the legal effect of those acts are substantially the same. It is a requirement of those laws that an order directing the joinder of a party may be made where (1) the action sounds in contract and (2) where any party thereto alleges and it appears that some other person not then a party to the action is liable for the claim made against “such” party in the action. The term “alleges” or “allegation” has a fixed technical meaning in the law. It is a term in pleading and not one of evidence. It is not contained in the evidence but precedes it. To allege is to make an allegation and an allegation is the formal averment of a party in one action setting forth the charge and what ho proposes to prove. 1 Words and Phrases 340; Thompson v. Dyer, 62 Atl. Rep. 76; 3 C. J. S. 884. The statutes above cited clearly contemplate and bear this technical meaning of the word “alleges.” It may be further stated that those statutes contemplate that the allegation should appear in the original complaint filed in the cause for the statute provides that a copy of that complaint, together with a summons shall be served upon the party ordered to be joined as a defendant. It certainly was not intended that the party to be joined should be called upon to answer a complaint, as provided in the statute, which pleading is barren of any reference to his liability or connection in any way with the cause of action therein alleged. The motion to set aside the order joining the American Liability Insurance Company as a party defendant in this cause is granted.


author: Vanfamaf, D. C. J.

text:
    Passaic District Court.
    SLOVAK CATHOLIC SOKOL, INC., PLAINTIFF, v. JOSEPH RYFF, DEFENDANT.
    Decided January 23, 1939.
    Por the plaintiff, J ohn R. Blanda.

    Por the defendant, Benedict Krieger.

   Vanfamaf, D. C. J.

In the above matter, the question turns upon plaintiff’s motion to strike out defendant’s counterclaim. Inasmuch as the. defendant has withdrawn the second count of his counter-claim, it will be necessary- to consider the motion only with reference to the first count.

The motion is made by plaintiff on two grounds which will be separately considered. The first ground is that in a suit for rent, such as the present, the defendant cannot set up damages arising out of a breach of an agreement to make repairs. This position is not sound. The cases cited by plaintiff, in-his memorandum, hold that, in a suit for rent, defendant cannot defend the claim for rent accrued by defending on the ground of plaintiff’s breach of an independent covenant to repair. Reporting Corp. v. Deshere, 4 N. J. Mis. R. 65; 131 Atl. Rep. 635; New Jersey Aluminum Co. v. Charms Co., 7 N. J. Mis. R. 68; 144 Atl. Rep. 117.

However, a distinctipn exists between matters of defense, which would absolutely defeat plaintiff’s cause of action, and a counter-claim which, while it does not contest plaintiff’s right to recover in the main case, sets up an independent cause of action as a basis of recovery, which may equal, be less, or be more than the amount plaintiff is entitled to recover on the main case. A tenant could sue in an original case upon a breach of covenant by the landlord, and, therefore, there is no reason why he cannot counter-claim for such breach even in an action by the landlord to recover rent. 36 Corp. Jur. 412; Silver Rod Stores v. Bernstein, 110 N. J. L. 117; 164 Atl. Rep. 450; Levy v. Hampton, 3 N. J. Mis. R. 1050; 130 Atl. Rep. 536.

In passing, I wish to call attention to the fact that the plaintiff is in error when he asserts in his brief that, in New Jersey Aluminum Co. v. Charms Co., supra, “the court held that the answer and counter-claim was properly stricken as presenting no facts constituting a legal defense to an action for rent.” The court did strike the answer as constituting no defense but did not touch the counter-claim. In fact, the Supreme Court expressly says, “neither are we here concerned with the counter-claim.”

The second ground upon which the plaintiff urges that the counter-claim should be stricken is that in a suit for rent for liquidated damages, the defendant could not counter-claim unliquidated damages in the District Court.

Here again the cases which the plaintiff cites in support of his position are cases in which it was held that a tort action could not be counter-claimed against a suit for rent. Some of the eases expressly say this. One or two cases, unfortunately, use the expression, unliquidated damages, but, on examination, it will be found that even those cases were tort cases.

The case of Ehret v. Hering, 99 N. J. L. 73; 122 Atl. Rep. 598, is not applicable. That case holds that a defendant having a claim for unliquidated damages is not obliged to set up his counter-claim in a District Court action, on a penalty that otherwise he is forever barred from asserting his cause of action. However, it does not hold that such defendant would not be permitted to file his counter-claim.

It is interesting to note that, although the question was not raised in the case of Bigboro Realty Corp. v. Cole, 12 N. J. Mis. R. 162; 170 Atl. Rep. 227, that, nevertheless, in that case an action was begun in the District Court of New Brunswick for rent, and the defense was a counter-claim based on the unlawful eviction by the landlord. This counter-claim was for unliquidated damages, and, like the case at bar, grew out of the subject-matter out of which the plaintiff’s cause of action arose. The lower court entered a judgment on the counter-claim, which was sustained in the Supreme Court.

As both reasons given by plaintiff are unsound, the motion to strike the counter-claim of the defendant is denied.


author: Smith, Joseph L., C. C. J.

text:
    Essex County Circuit Court.
    LEONARD G. BROWN, RECEIVER OF ORANGE NATIONAL BANK OF ORANGE, NEW JERSEY, PLAINTIFF, v. RUTH M. ROLLINSON, DEFENDANT.
    Decided March 1, 1939.
    Eor the plaintiff, Edwwrd L. Davis.

    Eor the defendant, Alfred J. Grosso.

   Smith, Joseph L., C. C. J.

This comes on a motion by the plaintiff for the amendment of a summons issued, by changing the teste date appearing thereon, from September 22d, 1938, to September 28th, 1938, and the amendment of the complaint by changing the alleged date of the filing of Us pendens from September 23d, 1938, to September 24th, 1938.

The suit is for deficiences on three bonds signed by the defendant, as wife of her deceased husband. The sale of the mortgaged premises was confirmed on August 1st, 1938. The summons on its face, carries the teste date of September 22d, 1938, and according to the complaint as filed, the Us pendens is alleged to have been filed on September 23d, 1938, that is: one day after the date which the defendant maintains is the date of the commencement of the suit; therefore, it is contended by the defendant, the action is contrary to the provisions of R. S. 2:65-6, providing for the filing of Us pendens prior to the commencement of the action. The plaintiff seeks the amendment of the summons and complaint, offering affidavits showing that although the summons was tested as of September 22d, 1938, the suit, in fact, was not commenced until September 28th, 1938. The defendant’s contention is that even if the facts were as claimed by the plaintiff, he cannot now amend the complaint and the summons to conform to the facts; that to do so, would be to substitute a new cause of action. With this contention the court cannot agree. The case cited by the defendant, Louis Csipo, Inc., v. Nagy, 111 N. J. L. 469; 168 Atl. Rep. 610, is not in point, for in that case, the original suit having been discontinued, the notice of lis pendens which had been filed for that action, was held to have ceased to be of any effect, and powerless to sustain the subsequent action. The case has nothing in common with the point at issue. The plaintiff is not seeking to substitute a new cause of action; rather, he seeks merely to amend what was obviously a mis-statement; by such an amendment, the defendant loses no right whatsoever, for, if the defendant still maintains that the summons was issued in fact, on September 22d and not on September 28th, she may still allege that in her answer as a defense.

The point in issue comes directly under the ruling of the Court of Errors and Appeals in Mutual Savings Fund Harmonia v. Gunne, 110 N. J. L. 41 (at p. 43); 164 Atl. Rep. 43, Mr. Justice Parker, speaking for the Court of Errors and Appeals, said:

“It is argued that the date inserted in the summons (June 30th) is controlling evidence that suit was begun on that day; but this, we think, may shortly be disposed of. Section 47 of the Practice act of 1903 (Comp. Stat., p. 4065) provides in part: ‘Every process shall bear date on the day on which the same shall be issued, and the date shall be prima facie evidence that it was issued on that day, but such date may be disproved whenever the same shall come in question; if any person shall antedate any process, he shall forfeit $100 to the party aggrieved, and also be liable to him for all damages which he may sustain thereby.’ It is intimated in the brief that the true date may be shown only to prevent fraud; but we do not so read the statute, which is broad enough to cover all forms of mistake, oversight, &c. There is a penalty for antedating, but that is all. See Morris Canal, &c., Co. v. Mitchell, 31 N. J. L. (at p. 102). The same rule obtained at common law. Wambaugh v. Schenck, 2 Id. (Pa.) *229; Allen v. Smith, 12 Id. 159, 166. The date may be disproved, but the right to disprove is not limited to any particular' party. We see no merit in this point."

It follows then, that the plaintiff having the right to disprove the dates mistakenly stated in the summons, may also show the correct date by amendment.

The motion for amendment will therefore be granted.

An order may be entered accordingly. ’


author: Brown, S. C. C.

text:
    GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, A CORPORATION, PLAINTIFF, v. RITA REALTY CO., A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided March 27, 1939.
    For the plaintiff, John Warren.

    For the defendant, Saul Nemser.

   Brown, S. C. C.

The above entitled action in ejectment was instituted by the plaintiff mortgagee to recover possession of mortgaged premises situated in Jersey City. The defendant defaulted in the payment of interest and taxes required to be paid under the terms of the mortgage. The defendant in its answer denies the truth of the matters contained in the complaint in accordance with the form prescribed by B. S. 2:51-4 and rule 185 of the Supreme Court. The plaintiff moves to strike the answer of the defendant on the ground that it is sham. The defendant does not deny its default in the payment of interest and taxes. The defendant resists the motion on the alleged grounds that the motion cannot be maintained in an action of ejectment and that the mortgage was made and executed in the State of New York and its construction, interpretation and enforcement should be made in accordance with the laws of that state. An action in ejectment is a statutory proceeding and is governed by the Ejectment act and rules of the Supreme Court. At common law there was no authority for filing a demurrer in an action of ejectment. The.defendant was confined and limited to a plea of not guilty with the possible exception of a plea puis darrein continuance. The statutes of our state evidently changed this procedure for it was held in Milberg v. Keuthe, 98 N. J. L. 779, that an answer in a suit in ejectment may be stricken under section 15 of the Practice act of 1912 (Pamph. L. 1912, p. 380) on the ground that it is frivolous or sham. The defendant contends the Milberg case was overruled by the decision in Ahlemeyer v. Miller, 103 Id. 617. Both of these cases involve decisions in the Court of Errors and Appeals and a reading of those decisions, in the light of the statutes pertaining to suits in ejectment as existing at the time the decisions were made, does not- support the contention of the defendant. The Milberg case was decided in June, 1923, the statute then in effect relating to sham or frivolous pleadings was section 15, Pamph. L. 1912 (at p. 380), which provided: “Subject to rules, any frivolous or sham defense to the whole or to any part of the complaint may be struck out; or, if it appear probable that the defense is frivolous or sham, defendant may be allowed to defend on terms. Defendant, after judgment, may appeal from any order made against him under this section.” The motion in the Milberg case was to strike the answer as being sham and frivolous which motion was granted under the authority of section 15 of the Practice act of 1912. Pamph. L. 1912, p. 380. The decision in the Ahlemeyer case was made in May, 1927, and there apparently was no change in the statutory proceeding between the dates of the Milberg and Ahlemeyer decisions. In the Ahlemeyer case the motion before the court was to strike the complaint upon the ground that it disclosed no cause of action. There was not at that time any statutory provision for such a motion; consequently, the decision in the Ahlemeyer ease did not overrule the decision in the Milberg case. The next legislative enactment relating to this subject appears in Pamph. L. 1928, p. 306, wherein the Practice act of 1912 was amended, particularly section 15, which provided: “(a) Subject to rules, any frivolous or sham defense to the whole or to any part of the complaint may be struck out; or, if it appear probable that the defense is frivolous or sham, defendant may be allowed to defend on terms. Defendant, after final judgment, may appeal from any order made against him under this section, (b) Subject to rules, any frivolous or sham complaint, or any frivolous or sham counterclaim heretofore filed, or which may hereafter be filed, or any portion or count of any such complaint or counter-claim, may be struck out; or if it appear probable'that the complaint or counter-claim is frivolous or sham, the plaintiff or counter-claimant may be allowed to proceed therewith on terms. A plaintiff whose complaint, or a counter-claimant whose counter-claim, has in part only been struck out, may, after final judgment, appeal from such order. Whether the striking out of any such complaint or counter-claim, or any part or count thereof, shall be with or without prejudice to the institution of another proceeding at law, based on the same cause or causes of action as were set forth in such complaint or counter-cJ aim, or in the portion or count thereof so stricken out, shall be in the discretion of the court. Such discretion shall be exercised by the court and indicated in the order striking out such complaint or counter-claim or portion or count thereof.” Section 3 of the act last mentioned provides that the act applies to any and all suits. The action in the case sub judice accrued on November 14th, 1938, and the summons was tested on the 23d day of the same month. The provisions of Pamph. L. 1928, ch. 151, p. 306, was substantially re-enacted in R. S. 2:27-124 to 129, inclusive. Section 3 of the act of 1928 was omitted from the Revised Statutes of 1937. This omission, however, does not impair the right to strike an answer in ejectment on the ground that it is sham as the provisions of the Revised Statutes fully provides for this right as well as Pamph. L. 1938, p. 407. According to the affidavits submitted on the motion the plaintiff is not a corporation of the State of New Jersey nor did it have an office in the State of New Jersey. The land which was mortgaged was owned by the defendant, a New Jersey corporation, and was situated within this state. The proof further shows that all of the negotiations leading to the execution of the mortgage were carried on in the State of New York including the payment of the consideration and that the mortgage was signed and acknowledged in the State of New Jersey but delivered in the State of New York. The mortgage contained the, following provision: “And the mortgagor, for itself, its successors and assigns, covenants and agrees that all the covenants and conditions herein contained, and contained in the bond accompanying this mortgage, shall be construed and interpreted pursuant to the laws of the State of New York.” The mortgage also contains the following covenants: “11. That the holder of this mortgage, in any action to foreclose it, shall be entitled, without notice and without regard to the adequacy of any security for the mortgage debt, to the appointment of a receiver of the rents and profits of said premises, and in the event of any default in payment of principal or interest, or upon any default in the performance of any other covenant or condition herein or in the bond accompanying this mortgage contained, such rents and profits are hereby assigned to the holder of this mortgage as further security for the payment of said indebtedness, and thereupon the holder of said bond and mortgage shall be clothed with and shall possess all the rights, remedies and authority of the mortgagor and of the owner of such premises, as the landlord of the mortgaged premises with power to eject or dispossess tenants; to rent or lease said premises or such portions thereof as may be or may become vacant, to keep said premises in repair, and to control and manage said premises as though the holder of said bond and. mortgage were the actual owner of the mortgaged premises.” For the purpose of deciding the motion to strike in this case the court will assume that the bond and mortgage was made in the State of New York and it was agreed according to its terms that it should be “construed and interpreted” pursuant to the laws of that state. It is contended on the part of the defendant that in the State of New York before a mortgagee can obtain possession of the mortgaged premises upon default on the part of the mortgagor there must be first commenced an action to foreclose the mortgage. In the instant case there was no action undertaken to foreclose the mortgage. In the State of New Jersey the common law rule that a mortgage created an immediate estate in the mortgagee and vested in him immediately upon the execution and delivery of the mortgage, an actual estate with a right of immediate possession, subject only to be defeated by the payment of the mortgage money has not been adopted by our courts. However, upon breach of condition the mortgagee’s estate has all the incidents of a common law title and he has the right to the possession of the mortgaged premises. Stewart v. Fairchild-Baldwin Co., 91 N. J. Eq. (at p. 88); 108 Atl. Rep. 301. Under the laws of the State of New York it appears that the mortgagee is not entitled to possession of the mortgaged premises until the mortgage is actually foreclosed. The legal propositions involved in this motion not only relate to the rights of the parties but their remedies. The terms of the mortgage are silent on the remedies to be applied unless it can be said that the words “construed and interpreted pursuant to the laws of the State of New York” includes remedies. The reference in the mortgage that it was to be “construed and interpreted” by the law of New York should not be taken as an expression of intention that its validity was to be governed by that law; nor would such intention, if expressed, be controlling. It can only mean that the meaning to be given the terms of the contract were to be governed by New York law. Commissioner of Internal Revenue v. Hyde, 82 Fed. Rep. (2d) 174. In the case of Provident Savings Bank and Trust Co. v. Steinmetz (Court of Appeals of New York), 270 N. Y. 129; 200 N. E. Rep. 669, it was held that the law concerning foreclosures in the State of New York relates to property located within the state. In Carpenter v. Black Hawk Cold Mining Co., 65 N. Y. 43, it was held: “Our statute in reference to the sale of mortgaged premises under a power of sale contained in a mortgage has reference only to real estate and mortgages recorded in this state.” In Elliott v. Wood, 45 Id. 74, it was held: “The mortgage was not of real property within the state and therefore the power of sale, and proceedings under it were not regulated by the statutes of this state regulating the foreclosure of mortgages by advertisement. 2 R. S. 545. That statute relates solely to mortgages of property within the state. The mode of transmitting or transferring title to real property in the Caribbean sea, is not within the scope of the legislation of New York, neither can the courts of this state, except as they may exercise jurisdiction over persons, by any judgment or decree, affect the title to property without the limits of the state. Lawrence v. Farmers’ Loan and, Trust Co., 13 N. Y. 200, decided that the statute directed the manner in which property should be sold under a power of sale contained in a mortgage, and must be followed, but the sale was of lands within the state, under a power recorded as required in the county within which the lands were situated, and under a mortgage which permitted a full compliance with the statute.” According to the decisions in the State of New York the laws concerning procedure to foreclose mortgages and like proceedings are limited to property located in the State of New York. This legal position is supported by abundant authority. The exclusive jurisdiction which each state possesses over land within its borders requires that its acquisition and transfer be governed by the laws of its situs and this rule applies generally to all property classed as immovable and operates between the several states of the United States as well as between countries entirely foreign to each other. The principle of comity does not require a state to regard the laws of any other state, so far as they may affect contracts in relation to real estate situated in the former state. 12 Corp. Jur. 477, § 75. Since the lien of a mortgage upon the land can be.enforced only in the state or other territorial jurisdiction where the land is situated, the law of the place where the mortgaged premises are controls as to foreclosure proceedings and statutory provisions as to foreclosure does not apply as to lands lying in another state. 41 Corp. Jur. 831, § 1005. It seems to be the settled law in the State of New Jersey that the transfer and descent of real property is covered by the law of the state in which it lies. Bentley v. Whittemore, 18 N. J. Eq. (at p. 373), see authorities therein cited including two New York cases. The Bentley decision was overruled by the Court of Errors and Appeals in 19 Id. 462, but not the principle of the lex rei sitce as stated in the Chancery decision. It is a general principle that real property or immovables is governed by the law of the place where it is situated. The lex rei sitce is universally recognized. 1916A L. R. A. (at p. 1012). It is also a general principle of law that the lex fori, or law of the jurisdiction in which relief is sought, controls as to all matters pertaining to remedial, as distinguished from substantive rights. 12 Corp. Jur. 423. There are exceptions to the principle that real property is governed by the law of the place where it is situated. Varick v. Crane, 4 N. J. Eq. 128, as in the matter of assignments as appears in Bentley v. Whittemore, 19 Id. 462. Another exception are questions affecting the consideration which are usually determined by the lex loci contractus. The validity of a stipulation for attorneys’ fees in a mortgage are not necessarily governed by the law of the place where the mortgaged land was situated. Copious references on the matter of exceptions to the principle that real property is governed by law at the place where situated may be found in 1916A L. R. A. (beginning at p. 1011). It may safely be accepted that the legal principle of lex rei sitce applies only so far as it concerns laws that relate distinctly and primarily to real property or real property contracts or where a conveyance is executed between citizens of a state for land in another state, in so far as it treats of covenants which never attach to the soil but are essentially personal and in these cases the laws of the state where the contract is made should as a general rule control. The suit in ejectment in the instant ease is a proceeding that relates distinctly to the real property in question. The motion to strike the answer as sham is allowed, and an order may be entered in accordance with this determination.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DONATO CIRCELLI, PETITIONER, v. GASPER FALCO, RESPONDENT.
    Decided February 15, 1939.
    For the petitioner, Jay Spielman (David Roskeimof counsel).
    For the respondent, George E. Meredith.

   Hi ❖ ❖ ❖ H: H* #

It appears from the record that this matter was previously before this bureau at which time a compromise agreement was entered into, and the agreement was approved and reduced to a determination and rule for judgment entered on July 28th, 1936. Under that agreement the petitioner was paid fifteen weeks compensation based on three per cent, of total permanent disability.

A second petition was filed alleging increased disability and further alleging that the allowance provided by the previous order was inadequate. These are the two issues involved in the present proceeding.

FTo useful purpose would be accomplished by reciting in detail the testimony of the various witnesses. It is sufficient to say that a number of witnesses, both lay and expert, appeared on behalf of both parties.

It is undisputed that the petitioner was struck in the head by a hammer which fell a distance of approximately six feet, and this accident resulted in a laceration about one inch in length on the crown of the petitioner’s head. The petitioner testified that he was dazed by this blow and there is even a suggestion in his testimony that he fainted at the time. He also testified that he had terrific pains in the head following this incident and that ever since he has suffered from severe headaches, dizzy spells, and many other subjective complaints. The petitioner further testified that he did no work for the rest of the day following this accident which occurred-at ten-thirty in the morning, and that he did only very light work at intervals for the rest of the week, this work consisting mainly of sweeping as the occasion arose.

All of the doctors appearing for the petitioner testified that the petitioner suffered a large percentage of disability which estimates of disability were based upon the doctor’s findings plus the subjective complaints of the petitioner. It was their opinion that the petitioner had suffered a brain lesion in the form of a laceration or bleeding of the brain substance, which in turn, produced the symptoms complained of. It is significant to note, however, from their testimony that very few, if any, objective neurological manifestations were found, and the doctors’ opinions, in a great measure, were based upon the petitioner’s subjective complaints.

The case, therefore, resolves itself largely into a question of determining the credibility of the petitioner. While the petitioner claimed that he fainted, his, foreman saw him within a very few minutes and the man gave no indication then of being dazed and, in fact, was reluctant about having his injury treated by a physician. The physician who was produced by the respondent and who saw the petitioner within an hour of the happening observed no evidence of the prior unconsciousness and, quite as important, got no history of unconsciousness from the patient. It further appears that the man claimed that he did only the lightest kind of work for a week after this happening, and that he had to quit because of the condition of his head; this testimony is refuted by the foreman who was .produced by the respondent, and who testified that the man did his regular laboring work, and more important, it was shown by records of the company that there was no sweeping work available at that particular time.

More important, the respondent produced the records and ' witnesses from another company, not a party to this suit, which indicated that the petitioner worked for a period of approximately six weeks as a laborer during the fall of 1937. In my opinion, impartial testimony of this character should be given great weight as against the petitioner’s testimony that he has been unable to work.

I am further impressed by the medical testimony of the doctors produced by the respondent, namely Dr. J. M. Silver-stein, the attending physician, and the three experts, Dr. Andrew C. Kuoif, Dr. Jack Blumberg and Dr. Lewis H. Loeser. These doctors appeared before me frequently, and I know from my experience that they are reluctant to brand a man as a malingerer unless they have very good reasons for doing so. These doctors conducted a number of tests which were described in great detail by Dr. Loeser in his testimony. The result of these tests led the doctors to believe that the petitioner was unquestionably attempting to deceive the examiners in that his responses to repeated tests of the same type were contradictory and also complaints that he registered particularly with reference to his vision were physiologically impossible.

The burden of proof of establishing his claim is on the petitioner, and I find from the greater weight of evidence that the petitioner has failed to sustain this burden. I find that the' weight and quality of the medical testimony presented by the respondent outweighs that of the petitioner’s medical testimony. In reaching this conclusion I do not wish to appear to be reflecting upon or criticizing the judgment or ability of the petitioner’s doctors. I feel that the petitioner by his course of action, inaccurate history and exaggeration of his complaints misled the doctors into reaching an incorrect conclusion.

I, therefore, find that the allowance already paid the petitioner is adequate and that he is entitled to no further compensation. I further find as a fact that the petitioner has not suffered a brain injury which has produced any disability.

It is, therefore, on this 15th day of February, 1939, ordered that the petition be, and the same is hereby dismissed.

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MATILDA SCHALKOFF, PETITIONER, v. CLEMCO, INC., NEW AMSTERDAM CASUALTY CO., RESPONDENT.
    Decided March 14, 1939.
    For the petitioner, Minturn é Weinberger (David Boskein, of counsel).
    For the respondent, James J. Bkeffington (William J. Weliky, of counsel).
   * * if * * * *

From tlie testimony adduced, I hereby determine and find as follows:

That on November 10th, 1937, the petitioner was in the employ of the respondent and while so employed, she scratched herself.in response to an itching sensation in her right ear, cansing an infectious process in the lobe of the right ear and thereafter an erisyploid infection of the right side of her face and neck, to develop. The testimony is clear and convincing that the petitioner was engaged in an occupation which required her to use kerosene as a cleaning agent in which she dipped clips into the same prior to stringing them. Her fingers and hands were wet and dirty during this process. The petitioner, on her return to her home that evening applied zinc ointment to her ear and returned to work and continued working until November 13th, 1937, when the medication which she had been applying at her home, proved of no relief and she developed a temperature, glandular swelling and found herself unable to continue her employment. Petitioner thereupon sought the treatment of Dr. E. Denholtz, who treated her until January 21st, 1938. The said treatment involved the opening of two glands to relieve the infection, drainage, dressings and ultra violet treatment. There remained as a disfigurement following this treatment, two scars in the area where the incision was made, which was described by the doctor to be adherent to the underlying tissue on her neck. It was the doctor’s opinion that the petitioner was extremely nervous since this occurrence and complained of irritation in the neck, in the region of the said scars.

There also appeared on behalf of the petitioner, Dr. Samuel Hirschberg, who found inter alia, two scars imbeded in this region with a diminished sensation on the right side of her neck. She appeared nervous, irritable and had tremors of the eyelids, fingers and tongue. He found that her reflexes were hyper-active. The petitioner’s testimony disclosed that among her subjective complaints were those of nervousness, irritability, and that she feels conscious of the scar on her neck and attempts to- wear her hair and her clothing in a manner so as to conceal the same. These scars I find to be five in number, several of which are adherent to the underlying tissue. These scars are present on the right side of the neck, below the ear line. They are noticeable and apparent on observation. There is a certain amount of adhesion due to scar tissue which resulted from the glandular incision performed by the doctor. I find that they cause her a certain amount of irritation and irritability as a result of being conscious of their presence.

It was the opinion of the petitioner’s physicians that she had developed psycho-neurotic symptoms and that the permanent disability attributable to the said accident was ten per cent, of partial permanent total disability.

There appeared on behalf of the respondent, several lay witnesses, as well as Dr. Jack Blumberg. His examination was made during the course of the trial, and it was his opinion that the permanent disability associated with the scars, was equivalent to two per cent, of total. He further felt that if her subjective complaints were taken into account the permanent disability would exceed that amount.

We are frequently confronted with situations where persons work alone. In such cases, it is impossible to procure witnesses corroborating such occurrences. They, nevertheless, are compensable, if, from the general circumstances of the employment, the deputy commissioner feels that the same actually took place. This resolves itself into a question of credibility.

I do not hesitate to accept the testimony of the petitioner and give it complete credence. I have had an opportunity to observe her on the stand while she testified. I am impressed with her honesty and truthfulness. Her actions subsequent to the said accidental occurrence were those normal for one of her intelligence and station in life. She has impressed me as a woman whose testimony is worthy of my belief and I so accept it.

I further feel that there has been established here by competent evidence, a complete chain of causation or rather, a fair history of cause and effect. The disability is proximately caused by accidental means in a physical sense, by a chain of causation which by the facts adduced, is so closely related to the accident that the injury can be said to be proximately caused thereby. The question to be determined is whether the disability is in fact, the result of injury. Ystradown Colliery Co. v. Griffiths, 2 K. B. 533; Newcomb v. Albertson, 85 N. J. L. 435; 89 Atl. Rep. 928.

It is reasonable to expect that persons in the normal activity of their daily life would attempt to relieve the numerous minute irritations the body is subject to. If in such act the skin is broken by scratching, thereby permitting germs to enter and infection to develop, such resultant condition is clearly compensable. A portal of entry was created by such scratching and in view of the condition of her hands in the handling of unclean products, it is probable that such irritation and resultant infection was associated with the irritation which caused her to scratch herself in the attempt to obtain relief. The chain of events which followed are related to the said accidental scratch, and the effects thereof, and are clearly compensable, and I so find.

It is stipulated that the compensation rate of the petitioner Is $10, and I find that she is entitled to compensation for temporary disability from November 13th, 1937, to February 4th, 1938, a period of twelve weeks, at the rate of $10 per week, in the amount of $120. I, however, feel that the petitioner has failed to prove that she has suffered any permanent disability associated with the said accident. I do not believe that scars create a permanent disability, as I construe the case of Everhart v. Newark Cleaning and Eyeing, 119 N. J'. L. 108; 194 Atl. Rep. 294. Petitioner is a woman customarily engaged in factory work. I do not believe the scars on her neck constitute a physical defect which makes her labor unsaleable in any market reasonably accessible to her as a factory worker or as such, renders her labor saleable for less than it would otherwise fetch. Were the petitioner engaged in the theatrical field, I could very readily see how the same would hinder her in securing employment.

íjs Sjí

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HENRY ADOLPH, PETITIONER, v. BREEN IRON WORKS, NEW JERSEY MANUFACTURERS CASUALTY INSURANCE COMPANY, RESPONDENT.
    Decided March 24, 1939.
    For the petitioner, Hymen M. Goldstein (David Roshein, of counsel).
    For the respondent, George E. Meredith.

   * * $ $ $ $ $

The undisputed facts as developed in the evidence are essentially as follows:

The petitioner was shop foreman of the employer respondent charged among his duties with the hiring and firing of the men employed in his shop. On May 22d, 1936, he had occasion to lay off, among other men, one A1 Marino. This was due to the fact that the work was slowing down and the employer did not require their services. Upon so doing, the employe, Marino, struck the petitioner with his fist, striking his nose. This was followed by a second and subsequent blow, causing the petitioner to fall to the ground. The occasion for this assault, I find to be, was in the fulfillment by the petitioner of his required assigned duties. There is no testimony to indicate that the assault grew out of any personal issue not connected with the employment. 'As such, the assault arose out of and in the course of his employment. I do not feel that a foreman occupies any different status than the ordinary workman. That is, the foreman and the workman are alike, fellow employes, so far as the Compensation act is concerned. My decision in this case is based upon the fact that it was the petitioner’s painful, if not unfortunate, duty to tell the workmen that they were being laid off, and that the company no longer required their services. It seems that this particular individual, Marino, was unable to take his lay-off with good grace, but attempted to retaliate by assaulting the petitioner. Such risk is a danger or peril which the petitioner was exposed to and as such, arose out of and in the course of his employment. This is distinguished from the case where assaults among employes arise out of a personal grudge or ill-feeling for reasons not associated with the employment. It is. a risk or danger reasonably contemplated by the employer and arises as a result of his employment. Barrase v. Standard Silk Dyeing Co., 163 Atl. Rep. 439. This case is to be distinguished from the case of Yoshida v. Nichols, 12 N. J. Mis R. 197; 170 Atl. Rep. 824, where the assault arose out of ill-feeling between the fellow employes, for reasons unrelated with the employment.

It is not alone sufficient that the injury be received by the employe in the course of his employment, but it must also arise while he was acting within the duties of his employment or in some act incidental thereto. Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458. An accident arises “out of the employment” when it is something 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.

A risk may be “incidental to the employment” when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment. Bryant v. Fissell, supra. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of the" employment.

In Taylor Coal Co. v. Industrial Com., 301 Ill. 548; 134 N. E. Rep. 172, compensation was awarded to a foreman who was injured as a result of a quarrel with an employe over the reduction of the latter’s wages about three weeks previous to the shooting.

Where a building employe had been told by the manager that he was discharged, but the manager agreed to talk it over with him on the street, it was held in Aetna Life Insurance Co. v. Windham, (1931, C. C. A. 5th), 53 Fed. Rep. (2d) 984, that an injury sustained on the street by the employe when the manager seized him and jerked him violently, was sustained in the course of his employment.

In Delco-Remy Corp. v. Cotton (1933), 96 Ind. App. 493; 185 N. E. Rep. 341, where an inspector of motor parts had trouble with a fellow employe in regard to the condition of parts offered for inspection, and also had a quarrel with the same employe over a political pamphlet, during which both parties used force and the inspector called the employe a vile name, it was held that an injury suffered by the inspector fifteen minutes later when his antagonist threw a mechanical part at him, could be reasonably inferred to have arisen out of the employment.

In Hansen v. Frankfort Chair Co. (1933), 249 Ky. 194; 60 S. W. Rep. (2d) 349, where the superintendent of a chair factory was struck and injured by a convict laborer following a conversation in which the superintendent expressed dis-, satisfaction with the assailant’s work — and, it was claimed, called him an abusive name, it was held that the injury arose out of claimant’s employment.

Where a foreman was assaulted by another employe under his direction in a controversy arising when the foreman inquired of the assailant why he ceased work which he was told to do, it was held that the injury arose out of claimant’s employment. Rydeon v. Monarch Furniture Co. (1925), 240 N. Y. 295; 148 N. E. Rep. 527.

The testimony further discloses that the petitioner instituted a suit against the said A1 Marino, under R. S. 34:15-40, covering the credit to be given to the employer on the award against him for the employe’s recovery against third party tort feasors. Morris Savitt v. L. & F. Construction Co., 17 N. J. Mis. R. 65; 4 Atl. Rep. (2d) 692. The testimony discloses that a judgment of $500 was obtained in the said cause, but the same has not been satisfied. I find that the respondent is not entitled to a deduction or set-off •for this amount, in view of the fact that payment of the same has not been made to the petitioner.

Prom the medical testimony adduced before me, there appearing Dr. Henry Z. Goldstein, on behalf of the petitioner, and Dr. A. C. Ruoff and Dr. Jack Blumberg on behalf of the respondent, I find that as a result of the said accident, the petitioner sustained a fracture of the nose resulting in a deviation of the septum on the right side with an occlusion of the passageways. This has produced definite symptoms and a disability associated with his nose and breathing. As a result of the fracture of the nose, there was created a marked deflection of the septum to the right with a resultant interference in the petitioner’s normal breathing process.

I find that the petitioner’s temporary disability did not extend beyond the waiting period, and he therefore is not entitled to compensation for temporary disability.

I further find that the' petitioner, as a result of the said accident and the subjective and objective evidences of injury and disability resulting therefrom, is entitled to an award equivalent to five per cent, of partial permanent total disability.

% * # * * ❖

John J. Stahl,

Deputy Commissioner.