text:
    State Board of Tax Appeals.
    THE BOROUGH OF BERGENFIELD, A MUNICIPAL CORPORATION, ET AL., PETITIONERS, v. J. H. THAYER MARTIN, STATE TAX COMMISSIONER, RESPONDENT. Re: Apportionment of Public Service Electric and Gas Company franchise taxes for the year 1937. THE BOROUGH OF BERGENFIELD, A MUNICIPAL CORPORATION, ET AL., PETITIONERS, v. J. H. THAYER MARTIN, STATE TAX COMMISSIONER, RESPONDENT. Re: Apportionment of New Jersey Bell Telephone Company franchise taxes for the year 1937.
    Decided December 10, 1940.

      For the petitioners, William Newcorn.

    For the respondent, city of Jersey City, James A. Hamill (by Charles Hershenstein).

    For the State Tax Commissioner, David T. Wilentz, attorney-general (by John Solan).

   Quinn, President.

On May 1st, 1937, the State Tax Commissioner made and certified the apportionment of the proceeds of the franchise taxes levied against the Public Service Electric and Gas Company and the Flew Jersey Bell Telephone Company for the year 1937, to the various municipalities entitled thereto, including petitioners and respondent, city of Jersey City, pursuant to the provisions of the Voorhees Franchise Tax act of 1900 and its supplements (R. S. Title 54, ch. 31). The rules of the State Board of Tax Appeals in effect for the year 1937 provided that appeals from any action of the State Tax Commissioner should be by a petition filed with the board within six months from the date of his certification. On October 26th, 1937 (five months and twenty-six days after the date of apportionment and certification)', a number of the present petitioner taxing districts, on application, obtained an order of this board extending the time for the filing of the petitions of appeal from the apportionment in question to February 1st, 1938. The time for filing was further extended to August 1st, 1938, upon a renewed application by the said taxing districts made on January 25th, 1938.

Thereafter, on February 26th, 1938, the legislature repealed the Voorhees act by the enactment of Pamph. L. 1938, ch. 7, § 15. This act provided a new method for the apportionment and distribution of franchise taxes collected from public utilities using public streets and places, among the municipalities entitled thereto. The apportionment provisions of this act were held unconstitutional by the Court of Errors and Appeals in Mayor, &c., of Hoboken v. Martin (Court of Errors and Appeals, 1939), 123 N. J. L. 442; 9 Atl. Rep. (2d) 332. Since the act, and therefore the cited case, applied only to 1938 gross receipts taxes, the holding as to unconstitutionality cannot have the effect of revival of the repealed provisions of the Voorhees act, controlling as to 1937 taxes. See Virtue v. Freeholders of Essex (Supreme Court, 1901), 67 N. J. L. 139, 148; 50 Atl. Rep. 360. The repealer of the Yoorhees act contained, no provision saving any rights of the taxing districts relating to the procedure for contesting past apportionments.

On June 14th, 1938, petitioners herein (comprising those municipalities which obtained the orders extending time for tiling appeals and many others), filed two separate petitions oE appeal from the apportionments made by the tax commissioner of the 1937 taxes paid by the two utilities aforementioned, respectively, on the grounds of failure to conform to the directions for such apportionment contained in the Yoorhees act, repealed, as indicated above, February 26th, 1938.

The present motion is to dismiss these appeals on the ground that the repealer of the Voorhees act by Pamph. L. 1938, ch. 7, deprives this board of jurisdiction to entertain proceedings instituted for the first time subsequent to such repealer, designed to review an apportionment of taxes under standards fixed 'in the law repealed, and now no longer in existence. In considering any question relating to the jurisdiction of any statutory tribunal, such as is this body, the legislative grant of jurisdiction is strictly construed and must be found to expressly confer the power claimed. Mellor v. Kaighn (Court of Errors and Appeals, 1916), 89 N. J. L. 543; 99 Atl. Rep. 207; Washington Township v. Mercer County Board of Taxation (Supreme Court, 1914), 85 N. J. L. 547; 89 Atl. Rep. 1028; City of Newark v. Weyerhaeuser Timber Co. (1938), (New Jersey Tax Reports, 1934-1939, p. 530. See, also, 3 Cooley on Taxation (4th ed.), § 1220. Similarly, it is our view that we should carefully search legislation repealing enactments which heretofore afforded this board a subject of jurisdiction, for any indicia of intent that such repealed provisions should continue to constitute a basis for judicial action by us. In this connection, the failure of the legislature in enacting Pamph. L. 1938, ch. 7, expressly to save remedies pertaining to apportionments for past years, seems of clear significance, in the face of the general practice of the legislature to write saving clauses into repealing statutes, when that is its intention. See, for example, section 801 of the General Tax act of 1918 (Pamph. L. 1918, ch. 236).

Counsel for petitioners contends, however, that section 11 of Pamph. L. 1938, ch. 7, does constitute such a saving clause. Section 11 provides as follows:

“The State Tax Commissioner, in making the apportionment of any taxes imposed upon any taxpayer * * * to any municipality for the year of one thousand nine hundred thirty-eight, or in any subsequent year, shall deduct or add to such apportionment for such year the municipality’s proper share of any deduction or addition to the extent and in the manner which may have been or-may be ordered or decreed by any judgment of the State Board of Tax Appeals or any court by reason of any error or omission in connection with the valuation and/or apportionment for any prior year or years of any tax heretofore imposed upon such taxpayer under the provisions of Chapter one hundred ninety-five of the laws of one thousand nine hundred or which may be imposed by this act.”

This provision, in our opinion, merely provides that should the state board or any court revise or correct any valuations or apportionments for a prior year or years, the tax commissioner should take account of any additions to or deductions from the share of any particular municipality resulting therefrom, in his next ensuing apportionment. This section obviously deals only with the results of the proper exercise of jurisdiction by the state board, but does not of. itself confer any jurisdiction upon the board where otherwise lacking.

The situation before us would seem to be controlled by the rule stated in State, Copeland, Pros. v. Village of Passaic (Supreme Court, 1873), 36 N. J. L. 382, 384:

“The effect of a repealing clause on a previous statute which * * * confers a special jurisdiction, is to end all proceedings under it, which are not closed unless there be an exception in the repealing statute (citing authorities).”

The rule stated was modified by statute thereafter, in a respect not presently material, by an Act relative to Statutes, approved March 27th, 1874 (R. S. 1877, p. 1120), which, in its present form in R. S. 1:1-14; N. J. S. A. 1:1-14, reads as follows:

“Yo action, proceeding or matter of any kind whatsoever of a civil nature begun in any of the courts of this state or before any body, board or tribunal whatsoever at the time when the llevised Statutes shall become effective' or at the time airy act hereafter enacted shall become effective, by virtue, or under authority of any act or part of any act repealed by the enactment of the Eevised Statutes, or by any act hereafter enacted, shall be abated or discontinued because of such repeal; but the same may and shall be prosecuted to final judgment, decree or decision in accordance with the practice and procedure in force at the time when such action or proceedings was begun, except that where the course of practice or procedure for the enforcement of a right, or the prosecution of a suit, shall be changed, actions now pending, or hereafter begun shall be conducted as near as may be in accordance with such altered practice or procedure.”

This provision is presently inapplicable, since no proceeding had been begun before this board at the time of the repealer of the Yoorhees act. At that time there had taken place before us only an application to extend the time, and the entry of an order extending the time, for the beginning of a proceeding, i. e„ for the filing of the petitions of appeal now pending before us. The order extending time, dated October 26th, 1937, recites:

“* * * and it further being represented to the Board that the municipalities above mentioned are desirous of having additional opportunity to inquire into the true value of such property of Public Service Electric and Gas Company and Yew Jersey Bell Telephone Company in the respective taxing districts and upon the completion of such inquiry to consult with the various municipalities involved and to consider the advisability of taking an appeal or appeals to this Board for a determination of the true value of such properties with the end in view of obtaining a re-apportionment of the said franchise taxes among the several taxing districts based upon an equitable and fair valuation upon a uniform basis; and this Board having considered the matter and being of the opinion that the time for filing said appeals should be extended; * * (Italics supplied.)

We conclude that the entry of an order merely extending the time for filing a proceeding, is not itself the commencement of the proceeding, within the intent of R. S. 1:1-14; N. J. S. A. 1:1-14.

For are we moved by the argument of petitioners to the effect that the granting of the present motion would entail an unconstitutional deprivation of a vested right to a judicial review of the apportionment of the franchise taxes in question. The right of the municipalities to share in these taxes at all is not based in contract, but results from the grace of the state in having so allocated them. Had it deemed wise so to do, the legislature might have properly disposed of these tax proceeds in an entirely different fashion. Mayor, &c., of Hoboken v. Martin (Supreme Court, 1938), 121 N. J. L. 214 (at p. 215); 1 Atl. Rep. (2d) 188.

Bor the reasons stated, we are of the opinion that this board has no jurisdiction to proceed to a determination of the petitions pending, and that the present motions should therefore be granted. . It will be so ordered in each case.


source: Caselaw Access Project

author: William A. Smith, C. C. J.

license: Public Domain

text:
    AMERICAN OIL AND SUPPLY COMPANY, PLAINTIFF, v. UNITED STATES CASUALTY COMPANY, DEFENDANT.
    Decided December 5, 1940.
    For the plaintiff, John A. Laird.

    For the defendant, Walter X. Trumbull.

   William A. Smith, C. C. J.

This case came on for trial before me on October 31st, 1940, and was submitted to the court without a jury on the pleadings and an agreed statement of facts. The court heard argument and subsequently briefs were filed. The record consists of the pleadings and stipulation, which includes the record in a case in the Essex Circuit Court, Standard Embossing Plate Manufacturing Co. v. American Oil and Supply Co.

The defendant herein issued its indemnity policy to the plaintiff covering the operation of a certain auto truck owned by tile plaintiff and referred to later, and this policy was in force on December 27th, 1935.

The policy insured the plaintiff against accidents “by reason of the ownership, maintenance, or use of any automobile or trailer described in the schedules of statements, including the loading and unloading of such automobiles or trailer.”

The accident involved in this suit is described in the stipulation as follows:

“2. That on said December 27th, 1935, an automobile truck covered under the terms of the aforementioned policy and owned by the plaintiff was used to transport certain merchandise consisting in part of two five-pint bottles of nitric acid, intended for a customer of the plaintiff, the Standard Embossing Plate Manufacturing Company, and that the driver of the said truck drove the truck to the place of business of that company and parked at the curb on the street, in front of its place of business.

“3. That the place where the truck driver entered was through a small steel door set within a large movable steel door, which large door permitted direct entrance of trucks into the place of business of the Standard Company and that the practice of the Standard Company in shipping out merchandise was to have its trucks alongside of this door and the embossing plates which they manufactured loaded on the truck through the opened large steel door. Upon occasion, merchandise was also delivered in this fashion although consignments of heavy merchandise were generally received at another entrance.

“4. That upon December 27th, 1935, the truck driver upon reaching the Standard Company’s plant entered the plant through the small steel door; ascertained that the acid would be received in the room directly inside that door (known as the shipping or receiving room); went back to his truck, leaving the door open; carried both bottles of acid, one in each hand, into the room and placed both bottles down on a rack. The door was eight feet from the street curb and the rack was about seven feet inside the door.

“5. That the bottle which he had been carrying in his left hand broke at the time it was put on the rack, the said bottle not having been broken or leaking prior to its being placed on said rack. That the testimony indicates that the bottle was put down on the rack, immediately thereafter it was found to be broken; the acid from the bottle flowed over the rack and that it damaged certain embossing plates stored beneath the rack.

“6. Thereafter an action was instituted by the Standard Company against American Oil & Supply Co. alleging negligence and this trial resulted in a verdict in favor of the plaintiff in the amount of $900 together with costs taxed in the sum of $103.47, which said judgment was entered and was actually paid by American Oil & Supply Co. under date of October 14th, 1937.”

The complaint in the suit brought by the Standard Embossing Plate Manufacturing Company against the plaintiff alleged an accident as follows:

“In the course of the delivery aforesaid of said two bottles of nitric acid by the defendant, defendant through its servant, agent or employe aforesaid, caused one of said bottles to become broken and the contents thereof to be spilled over and upon the aforesaid thirty steel engraved embossing plates.”

The defendant’s attorney at the trial of this case moved for a direction of a verdict on two grounds: first, that no reference in the original action was made to a delivery by automobile and that therefore the plaintiff is estopped by the record of that case from claiming that the accident so occurred; namely, by reason of the ownership, maintenance or use of the automobile in question, including its loading and unloading; and secondly, that the accident was not covered by the policy.

On the question of estoppel, the defendant cites the case of Stefus v. London and Lancashire Indemnity Co., 111 N. J. L. 6; 166 Atl. Rep. 339. In that case the plaintiff sued a policy holder of the defendant for injuries sustained as a result of the operation of the assured’s automobile. The policy indemnified the assured only for injuries to third persons accidentally sustained. The complaint in the original action alleged negligence but the defendant insurance company in the cited case attempted to set up by way of answer that the original case was submitted to the jury on the question of whether or not the injuries sued for were sustained in the commission by the assured of a willful tort, which was not covered by the policy, not being an accident. The court held, however, that the defendant was bound by the record, which alleged an accident and could not show the grounds on which the case was submitted to the jury.

The defendant here now attempts to claim that because the allegations of negligence in the complaint do not include any negligence in unloading that the plaintiff here is estopped by that record from recovering. It is my view that the principle in the cited case does not apply in the instant case so as to support an estoppel. The charge made by the Standard Embossing Plate Manufacturing Company was of damage in making a delivery and that was due to negligence. The policy covers damage done in unloading, which is part of a delivery and is not limited to negligence in unloading. Therefore the allegation of breach of duty on the part of the assured alleged in the complaint is immaterial so long as the damage was done in unloading which, as I have stated, is part of a delivery.

The defendant here is not in a position to urge this ground of estoppel because it is stipulated as to how the accident happened, so the facts with regard to the accident are in evidence before the court, and if these facts come within the policy coverage the plaintiff is entitled to recover.

The record of the recovery in this case does not hold the importance that the record of the recovery in the cited ease had, because we are here dealing with a suit directly between the assured and the insurance carrier, and all that the assured has to prove is that he paid out money by reason of a liability incurred which was covered by the policy held.

I will deny the defendant’s motion for a direction on the ground of estoppel and note its objection as ground of appeal.

The question remaining therefore is: Does’the policy cover the accident described in the stipulation; or to state it more clearly: Do the facts show that the damage which was done to the property of the Standard Embossing Plate Manufacturing Company and for which they recovered against the plaintiff, was done in the unloading of the truck which was covered by the defendant’s policy?

. Counsel for defendant in his brief has given a dictionary definition of loading as "the act of putting a load on or in' (as to load a beast of burden, a car or a vessel); hence, to charge as with a load or burden;” and as the definition of unloading as “the act of discharging a cargo, taking the load from, to disburden, to remove from.”

1 do not know that I have any quarrel with these descriptions except that it seems to me that we cannot set down any rule as to what should be included in unloading, but we must treat each case separately according to the facts involved. The distinction must of course be clearly made between unloading and delivery. Delivery is more inclusive than unloading, and in determining what is unloading of the truck we must take into consideration its connection with the operation, maintenance and use of the truck; in other words, the unloading must be in reference to the operation, maintenance and use of the truck. It indicates, however, that it is an extension of the coverage rather than a limitation of the coverage of operation, maintenance and use.

The question of determination of what is or is not unloading under the terms of a policy such as we have here has been passed upon by two reported cases in this state: Jackson Floor Covering, Inc., v. Maryland Casualty Co., 117 N. J. L. 401; 189 Atl. Rep. 84, and Zurich, &c., Ltd., v. American Mutual, &c., Co., 118 N. J. L. 317; 192 Atl. Rep. 387.

The Jackson case was an appeal from a determination by Circuit Court Judge Ackerson on a motion to strike out the answer of the defendant as sham or frivolous. The policy in that case had a similar coverage, and a judgment had been obtained against the plaintiff. The action was a suit by the plaintiff against his insurance carrier to establish that the accident happened in the unloading of the truck covered by the defendant’s policy. The assured’s truck transported rolls of linoleum to a concessionaire in a market. The truck was stopped and the driver removed the rolls of linoleum, put them on a hand truck, and while wheeling the truck in the building where the concessionaire was located one of the rolls of linoleum dropped from the hand truck and injured a pedestrian.

Judge Ackerson held that the process of unloading had been completed in so far as the unloading was referred to by the terms of the policy and that therefore the accident was disconnected from that operation and was not covered by the policy. Judge Aekerson’s opinion has not been reported, but on appeal his determination was unanimously affirmed by the Court of Errors and Appeals in the ease cited, Mr. Justice Bodine writing the opinion. He aptly puts the distinction between the unloading and' the handling of the linoleum at the time of the happening of the accident and says (at p. 403) :

“It appears that the unloading of the plaintiff’s automobile truck had been completed, and that the transportation from then on was by a different means; hence, there could have been no concurrent coverage, since the carrier insuring the automobile truck was under no obligation.”

The other case came before the court on a suit by one insurance company which had the coverage of liability other than the unloading, against the insurance company that had the coverage of the assured as to operation, maintenance and use of the truck, including loading and unloading. In that case the servant of the assured removed from the truck a can of milk and a cake of ice and placed the milk and ice in an icebox maintained in the interior of the premises óf the consignee, and while chopping ice to pack the milk the assured’s truckman struck someone with his pick, causing the damage for which the recovery was had.

In that case the Supreme Court in an opinion by Mr. Justice Heher held that the accident did not happen in the unloading of the truck and therefore the policy covering unloading did not apply. Mr. Justice Heher in that case, in determining that the accident did not happen in the unloading, says as follows:

“We have no occasion to determine whether an accident occurred in the case of the ‘loading or unloading’ of a vehicle within the policy coverage or anything connected with its ‘maintenance, use or operation,’ within the intendment of the plaintiff’s policy. Here the unloading of the merchandise had been completed when the accident occurred. The assured’s servant was engaged in the servicing of the delivered milk upon Borer’s premises, an act entirely disconnected from the unloading of the article from the vehicle.”

It is my view that these two cases are clearly distinguishable from the case which I am now considering. An accident to have occurred in the unloading of a truck must occur after something is done to change the conditions from the transportation or the mere standing of the truck after it is stopped, and as commonly understood it is the removing of the load or the part that is being unloaded, from the time that that operation is started until that operation is finished. And it is my view that the operation of unloading in the instant case continues from the time the bottles started to be moved on the truck so as to start unloading until they next came to rest off the truck. It appears by the stipulation that they were removed by the driver and that they continued in motion until he set them down on the counter. And it is my determination that the accident happened in the placing of one of the bottles on the counter and therefore it happened while this bottle which had been transported in tire truck was being-unloaded, and I so find as a fact, my view being that the bottle was broken in the placing of the bottle on the counter.

Similar provisions of the policy under consideration here have been passed upon by the Supreme Court of Wisconsin. In the case of Stammer v. Kitzmiller, 276 N. W. Rep. 629, the court, referring to the process of unloading, states as follows:

“When the goods have been taken off the automobile and have actually come to rest, when the automobile itself is no longer connected with the process of unloading, and when tire material which has been unloaded from the automobile has plainly started on its course to be delivered by other power and forces independent of the automobile and the actual method of unloading, the automobile then may be said to be no longer in use.”

If we apply this very clear description of unloading to the case here under consideration, it will be plainly seen that the driver and the automobile and the article being transported are all connected, and that until the driver has completed the act of removing the load, the coverage extends, and this removal does not stop until the article unloaded has come to rest. The accident having happened in the driver’s attempt to put the bottle at rest in removing it from the truck, the accident must be held to have happened in the unloading of the truck.

The motion for a direction of a verdict in the defendant’s favor on the second ground urged will be denied and a verdict is found in favor of the plaintiff against the defendant for the amount of the judgment and costs together with interest.


author: Oliphant, C. C. J.

text:
    Middlesex County Circuit Court.
    JACOB STEMMER, Jr., BY HIS NEXT FRIEND, JACOB STEMMER, Sr., AND PAULINE STEMMER AND JACOB STEMMER, Sr., INDIVIDUALLY, AND PAULINE STEMMER AND JACOB STEMMER, Sr., HER HUSBAND, PLAINTIFFS, v. WILLIAM KLINE, DEFENDANT.
    Decided December 26, 1940.
    For the motion, George L. Burton.

      Contra, Andrew O. Wittreich.

   Oliphant, C. C. J.

It is before the court, on a motion raised by the amended answer to strike the first and second counts of the complaint on the ground that the allegations contained therein are insufficient in law to constitute a cause of action. The amended answer contains as a separate defense the following: “The defendant will object at, on or before the trial of this action, that the allegations contained in the first and second counts are insufficient in law to constitute a cause of action against the defendant and in favor of the plaintiff upon the ground that an infant cannot maintain an action for personal injuries sustained while en ventre sa mere and that the parents of such infant cannot recover consequential damages resulting from such alleged injuries.”

' The suit is based upon the alleged malpractice of the defendant in causing injury to Jacob Stemmer, Jr., en ventre sa mere, through the negligent diagnosis of the mother’s condition and subsequent treatment by the administering of X-ray treatments whereby the child was severely injured and born a microsephalic andi an idiot without skelital structure, sight, speech, hearing or the power of locomotion. The infant plaintiff is now five years of age.

The sole issue presented by this motion is whether an infant can recover for personal injuries allegedly sustained while en ventre sa mere, and whether the parents can recover consequential damages by reason of such alleged injuries.

“Life,” says Blackstone, “begins in contemplation bjr law as soon as an infant is able to stir in the mother’s womb.” 1 Bl. Com. 129.

The law has long recognized that for all purposes beneficial to the infant after birth, an infant en ventre sa mere shall be considered to be born. Doe v. Clarke, 2 H. Black. 400. Such an infant can have a guardian appointed for it. Long v. Blackhall, 7 Durm. & East 100. In this state by statute, that is specifically provided for. R. S. 3:7-14. An estate may be given or bequeathed to it. Marsellis v. Thalhimer, 2 Paige Rep. 35. By Thelluson v. Woodford, 4 Ves. Jr. 227-343, upon the death of the father, by the negligent act of another occurring prior to the child’s birth, the latter may recover for the injury sustained.’ In that casé it was pointed out by the court that this so called nonentity might be vouched in a recovery though it is for the purpose of making him answer in value. He may be named as an executor. He may take by devise. He may have an injunction.

In Wallace v. Hodson, 2 Atk. 117, Lord Hardwicke said:

“The principle reason I go upon in the case is that the plaintiff was en venire sa mere at the time of her brother’s death and a person in rerum natura so that, by the rules of common and civil law, she was to all intents and purposes a child as much as if born in the father’s lifetime.”

In the same case Lord Harwicke notes that under the civil law the reason for the rule is that it is necessary to adopt it whenever it is for the benefit of the child to be considered as born and he states the rule to he “that such child is to be considered living to all intents and purposes.”

In Doe v. Clarke, supra, it is said that “wherever such consideration would be for its benefit, a child en ventre sa mere shall be considered as absolutely born.” Mr. Justice Buller in Thelluson v. Woodford, supra, says, “Why shall not children en venire sa mere be considered as generally in existence? They are entitled to all the privileges of other persons.”

After citing many of the above cases Judge Thomas in Nugent v. Brooklyn Heights Railroad Co., sequi, said: “It is repeating arguments several times advanced in this connection to say that an unborn child has, conditioned upon its birth, usual rights of property and the remedies that pertain to them for actionable injuries inflicted before its birth. The being that owns is the supreme consideration and has capacity for ownership. What is owned and the right to own are merely incidental to the living entity. And yet shall the incidents be valued in legal cognizance and the owner not?”

Vice-Chancellor Backes in Re Haines’ Will, 98 N. J. Eq. 628; 129 Atl. Rep. 867, said: “By a fiction of the law adopted from the civil law, a child en ventre sa mere is supposed in law to be born for many purposes, but only with a single exception, when it works for the benefit of the child.” The exception mentioned is that where the rule against perpetuities is involved.

While this was a case in equity, there is no reason why the same rule should not apply at law and it cannot be argued that a right of action to recover for prenatal injuries is not for the child’s benefit.

If the mother be quick, the child was at common law a separate entity entitled to the recognition and protection of our courts.

In our own state at common law such a child was recognized as a “person.” It is evidenced by the decision of the Supreme Court in State v. Cooper, 22 N. J. L. 52. The question there was whether an attempt to procure an abortion, the mother not being quick with child, was an indictable offense at common law. The court answered it as follows: “We are of the opinion that the procuring of an abortion is not an indictable offense unless the mother be quick with child.” The court said that “at common law there was a well settled distinction between the condition of the child before and after the mother is quick. In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first proof of life in the mother, no matter when it first received it.” Quoting from 1 Hawk, B. 1 C. (at p. 31, § 16), it said: “Itwas anciently holden that the causing of an abortion by giving a potion to, or striking a woman big with child was murder, but at this date it is said to be a great misprison only, and not murder, unless the child be born alive and died thereof.”

In State v. Murphy, 27 N. J. L. 112 (at p. 114), the court said that at common law the procuring of an abortion was an offense only against the life of the child as a result of which the law as contained in the first clause of the supplement to the act for the punishment of crimes was passed.

The perfect answer and unanswerable argument in the determination of the problem presented here, a problem in the law of torts is the application of the criminal law in offenses committed against an infant en ventre sa mere. ■

Assault and battery is an integral, a component, part of murder. Murder by force cannot be committed without there being an assault and battery. If it is an offense under the criminal law to assault and batter a child en ventre sa mere, that crime ripening into murder if the child is born alive and later dies as the result of its prenatal injuries, it in all justice and logic must be said that that child has a right of action after its birth for prenatal injuries inflicted upon it by the wrongdoer, a tort feasor, and that it should be allowed to recover if possible, if proper, damages resulting from such tort, for the injuries caused by that assault and battery. Assuming as it must be assumed, that an indictment for assault and battery would lie, certainly a right of action sounding in damages for that tort should be allowed. It is no answer to say that the punishment of crime is for the public benefit, while the remedy in tort is for private redress.

It is said that the great weight of authority is against the right of recovery for an alleged tort committed against a child en venire sa mere. It is true that the majority of the decided cases are for that proposition, but to my mind the weight of authority holds for the right of recovery, and I believe the more potent reasoning is found in the opinions holding for the existence of a right of action.

Let us examine the cases which it is claimed hold against a right of action. The first reported on the subject is that of Dietrich v. Northampton, 138 Mass. 14, decided in 1884. It was determined on a statutory construction. Mr. Justice Holmes held that an unborn child was part of the mother and any damage to it, which was not too remote, was recoverable by her and that the statute sued upon did not embrace the plaintiff’s intestate within this meaning. Further, in this case the child did not survive its premature birth.

In the year 1890, the Supreme Court of Ireland decided the case of Walker v. Great Northern Railway Co., 28 L. R. Ir. 69. It was not determined on the question presented here but solely on contractual relationship.

The case of Allaire v. St. Luke’s Hospital et al., 184 Ill. 359; 56 N. E. Rep. 638, was decided in 1900. This case is cited as an authority in almost every case thereafter reported on the subject. The court said : “This action is not governed by any statute and if maintainable it must be so by the common law and therefore the question is whether, at common law, the action can be maintained.” It must be noted in considering this case that the complaint alleged a contractual relationship between the mother of the child and the defendant. The court’s decision was not unanimous and the logical and forceful dissenting opinion of Mr. Justice Boggs has likewise been quoted in most every case thereafter. In the course of his decision he said that a cause of action should accrue to every child capable at the time of injury of being born viable for injuries received en venire sa mere, where the defendant knew or ought to have known of its existence at the time of the injury.

The reasoning of the majority opinion is that the court lacked authority, it would create practical inconvenience and possible injustice; that the child had no separate entity apart from the mother, and therefore no duty of care was owed to it; that there was no person or human being in esse at the time of the accident. It held that at common law the action could not be maintained. Mr. Justice Boggs held the action could be maintained and said: “If in delivering a child an attending physician acting for compensation should wantonly injure the limbs of the infant and thereby cause the child, although alive and living, to be maimed and crippled in body or members, it would be abhorrent to every impulse of justice or reason, to deny to such a child a right of action against such physician to recover damages for the wrongs and injuries inflicted by such physician.” This reasoning is unanswerable.

The case of Gorman v. Budlong, 23 R. I. 169; 49 Atl. Rep. 704, was based on the decisions in Dietrich v. Northampton, supra, and Walker v. Great Northern Railway, supra. The next case is that of Nugent v. Brooklyn Heights Railroad Co., 154 App. Div. 667; 139 N. Y. Supp. 367, decided in the year 1913. The court did not decide the case on the question of the rights of a child en ventre sa mere. However, Mr. Justice Thomas- said: “Justice should not be turned aside and wrongs go without remedies because of apprehension of what may happen in jurisprudence.” His comment was made because of the language used by Mr. Justice O’Brien in Walker v. Great Northern Railway Co., supra. Here the findings of the court were based again on the question of a contractual relationship. The case in effect decides that a child en venire sa mere has a right of recovery. At the outset of the opinion Mr. Justice Thomas- says that he is confronted with two questions, (1) has a child en ventre sa mere the right of recovery?; (2) what liability or duty did the defendant railroad as a common carrier owe to the plaintiff while en venire sa mere f On the first question he decided' that a child en ventre sa mere has a good legal cause of action but in the case before him, that principle did not apply because the railroad had no contract with the unborn child for its safe transportation, and for that reason alone it was not liable to the plaintiff.

In the same year the case of Buel v. The United Railways Co., 248 Mo. 126; 154 S. W. Rep. 71, was decided. The action was brought under the Damage act of Missouri and the court construed that act as not encompassing such an action, there being no right of action at common law, but the case does say that “in all the cases the right of a mother to maintain an action for a negligent injury to herself and her unborn child is conceded. The only question is whether a dual right exists.”

The case of Lipps v. Milwaukee, 164 Wis. 272; 159 N. W. Rep. 916, was determined on the precedent established in Allaire v. St. Luke’s Hospital, supra, and the case of Dietrich v. Northampton, supra, which opinion, I believe, was misconstrued, but the opinion is very enlightening and makes this significant statement: “Very cogent reasons may be urged for a contrary rule, where the infant is viable and especially so in cases where the defendant being a doctor or midwife, has negligently injured an unborn child. As to such cases, we express no opinion.”

In the year 1921, we have the decision in Drobner v. Peters, 186 N. Y. Supp. 278. It was decided upon a demurrer to the declaration or complaint, the basis of the demurrer being that a child en ventre sa mere could not recover. The Appellate Division in its opinion by a vote of three to two upheld the right of the child to maintain such a cause of action. That decision was written by Judge Merrill and is, I believe, the best, the most logical and cogent opinion yet written on the subject.

The Court of Appeals reversed the Appellate Division and it is interesting to note that Mr. Justice Cardozo, then a member of that court, dissented, but without opinion.

Mr. Justice Pound who wrote the opinion for the Court of Appeals said:

“Modern tendency to decide cases is to ignore fiction and deal with things as they are * * *. The injuries were, when inflicted, injuries to the mother. Ho liability can arise therefrom except out of a duty disregarded and defendant owed no duty or care to the unborn child in the present case except from the duty of injury of the mother.” (Italics mine.)

Even if one agrees with that reasoning could Mr. Justice Pound have applied it to the case sub judice ? In the case here the defendant was called on to treat and care for a woman and her unborn child. It is claimed that through his negligence that child was injured. If true what else was it but a duty disregarded?

’ The case of Stanford v. St. Louis-San Francisco Railroad Co. (1926), 214 Ala. 611; 108 So. Rep. 566, took practically all of the cases we have heretofore mentioned and cited them as authority for the proposition that a child en ventre sa mere cannot recover in negligence cases, but says that the mother might recover for any damages to the child not too remote.

A few years later the Alabama Court again in the case of Birmingham Baptist Hospital v. Branton, 118 So. Rep. 741, said:

“This court has established a general line of demarcation between the civil rights of the mother and child to be born. It is concurrent with separate existence of the mother and child by birth; and prenatal injury before the birth is no basis for an action for damages by the child or its personal representative. The mother of an unborn child may recover damages to her and it en venire sa mere if such injury and damage is not too remote.”

It was apparently the thought of the court in these cases that there was a great deal of injustice in denying the right to a child en venire sa mere to recover for personal injuries. It appears that they tried to open the door to adjust claims for prenatal injury but instead of holding that the child had a separate right of action, they tried to work out a solution by allowing the mother to recover in her own right for the injuries to the child. This was likewise the reasoning of Mr. Justice Holmes in Dietrich v. Northampton, supra.

The case of Magnolia Coco-Cola Bottling Co. v. Jordan, 76 S. W. Rep. (2d) 944, held against a right of action on the ground that the child was not in esse at the time of the accident, and therefore, was not capable of being owed a duty by the defendant.

Smith v. Luckhardt, 19 N. E. Rep. (2d) 446, is the only case I have discovered wherein recovery is sought because o£ the alleged malpractice of a physician. The court held on the basis of the authority of the cases heretofore cited that no cause of action existed in a child for prenatal injuries. The decision does not consider the question of a duty owed to the infant by the defendant doctor. It makes no distinction between tort feasors who know or should know and those who do not and are not charged with knowing of the existence of the child in the mother’s womb. The decision held that no case has ever decided that if the infant survived it could maintain an action for prenatal injuries. I cannot subscribe to that statement. The cases of Dietrich v. Northampton, supra; Gorman v. Budlong, supra, and Buel v. United Railways Co., supra, were decided on the ground that the statute under which the actions were brought did not embrace a cause of action under the facts as alleged. The cases of Walker v. Great Northern Railway Co., supra, and Nugent v. Brooklyn Heights Railroad Co., supra, based their decisions on the contractual relationship existing between the parties. While both cases discussed the question, the Walker case left it open while the Nugent case as heretofore stated affirmatively decided that the child en ventre sa mere has a legal cause of action.

By a very late case, Berlin et al. v. Penny Co., Inc., in an opinion rendered October 28th, 1940, the Supreme Court of Pennsylvania holds that no action can be maintained by an infant for injuries sustained en ventre sa mere on the authority of Drobner v. Peters, supra; Dietrich v. Northampton, supra; Allaire v. St. Luke’s Hospital, supra, and Ryan v. P. S. C. T., 14 Atl. Rep. (2d) 52.

The court said : “It is true that the unity of mother and child has been relaxed in modern times, and that to-day for some beneficial purposes, a child en ventre sa mere is considered as born.”

It is my judgment that for all beneficial purposes a child should be considered as born. It is without question to its benefit to allow it to maintain a right of action in cases founded on a tort when it is injured through the negligence of another.

In each of the opinions holding against the right, the writer seems to strain at the leash in an endeavor to break the bonds which he imagines bind him to the doctrine that a child en ventre sa mere has no separate being, no entity apart from the mother in civil law in the field of torts. Why is there this restraint when in every other field of the law a child has a separate being, is a person, if being in that categoiy is for its benefit?

I think the answer is to be found in the opinion in Walker v. Great Northern Railway Co., supra, where Judge O’Brien says, “On what boundless seas of speculation of evidence this new idea would launch us.”

Since that decision and most of the others cited, medical science has progressed by leaps and bounds. The field of speculation in this type of case has been greatly diminished. Until a comparatively few years ago X-ray and radium and their uses were hardly known.

We come now, in addition to what has already been said, to a resume of those cases and authorities in support of the right of action.

1 Bevin on Negligence (4th ed.) 75, in discussing the case of Barley Maine Colliery Co. v. Mitchell, 11 App. Cas. 127, recites:

“An injury has not occurred until it is known to be an injury. The wrongful act of the railroad company produced its injury on the birth of the child and even if the right of action was not vested before, it became so then, there being a breach of the duty of the company not to be negligent, followed at birth with damage to the plaintiff, who was free from fault.”

See, also, Frey, Injuries to Infants en ventre sa mere (1927, 12 St. Louis L. Rev. 85); Kerr, Action by Unborn Infant (1905), 61 Cent. L. J. 364; Morris, Injuries to Enfants En Ventre Sa Mere (1904), 58 Cent. L. J. 143; Straub, Right of Action for Pre-Natal Injuries (1930), 33 Law Notes 205.

While the opinion in Kyne v. Zuckerman, 4 Penn. Dis. and County Rep. 1924, 227, is that of a court of inferior jurisdiction, it is well written and the matter is well digested. The court .held that “It may be conceded that the weight of authority, from the standpoint of. numbers, is against the existence of a right of action in such a case as this. On the other hand, we have been impressed by the cogent arguments of those decisions which sustain the right of recovery and are of the opinion that this view is supported by the more potent reasoning.”

We have also the strong dissenting opinion of Mr. Justice Boggs in the Allaire case, the Nugent case, the decision of the Appellate Division in the Drobner ease, the Kyne case and the Montreal Tramways ease.

The Supreme Court of the Dominion of Canada in 1933 held that a child could recover for injuries sustained while en. venire sa mere. This case, Montreal Tramways v. Leveille, 4 Dominion Law Reports (1935, p. 337), was determined upon the construction of article 1053 of the Civil Law Code of the Province of Quebec, which reads as follows: “Every person capable of discerning right from wrong is responsible for the damage caused by his fault to anotherwhether by positive act, imprudence, neglect or want of skill.”

In the opinion, Mr. Justice Lamont spoke as follows:

“To the company’s contention that an unborn child being merely a part of its mother had no separate existence and, therefore, could not maintain an action under article 1053, C. C., the answer, in my opinion, is that, although the child was not actually born at the time the company by its fault created the conditions which brought about the deformity to its feet, yet, under the civil law, it is deemed to be so if for its advantage. Therefore when it was subsequently born alive and viable it was clothed with all the rights of action which it would have had if actually in existence at the date of the accident. The wrongful act of the company produced its damage on the birth of the child and the right of action was then complete. The separate existence of an unborn child is recognized even at common law, for it is well established that if a person wrongfully causes injury before its birth which results in the child’s death, after it has been born alive, such person will be guilty of a criminal offense although the wrongful act was directed solely against the mother. Rex. v. Senior, 1 Mood. C. C. 346; 168 E. R. 1298; 1 Russell on Crimes (8th ed.) 622.

“It was, however, urged that there is no true analogy between crime and tort, as the punishment of crime is for the public benefit, while the remedy in tort is for private redress. While in some cases there may be no analogy yet there are, in my opinion, many cases in which crime and tort are merely different, aspects of the same set of facts and in which there is so close an analogy that something more than the bare denial of it is necessary to carry conviction. The wrongful act which constitutes the crime may constitute also a tort, and, if the law recognizes the separate existence of the unborn child sufficiently to punish the crime, it is difficult to see why it should not also recognize its separate existence for the purpose of redressing the tort.

“If a child after birth has no right of action for prenatal injuries, we have a wrong inflicted for which there is no remedy, for, although the father may be entitled to compensation for the loss he has incurred and the mother for what she has suffered, yet there is a residuum of injury for which compensation cannot be had save at the suit of the child. If a right of action be denied to the child it will be compelled, without any fault on its part, to go through life 'carrying the seal of another’s fault and bearing a very heavy burden of deformity and inconvenience without any compensation therefor. To my mind it is but natural justice that a child, if born alive and viable, should be allowed to maintain an action in the courts for injuries wrongfully committed upon its person while in the womb of its mother.

“The other matter to which we were asked to give serious consideration was the practical inconvenience and possible injustice to which the company might be exposed if it were held that this right of action could be maintained. It was urged that to so hold would open wide the door to extravagance of testimony and lead, in all'probability, to perjury and fraud. I am not apprehensive on this point for, although in certain cases special care will be required on the part of the judge in instructing the jury, I feel quite confident that the rules of evidence are adequate to require satisfactory proof of responsibility and that the determination of the relation of cause and effect will not involve the court in any greater difficulty than now exists in many of our cases.

“For these reasons I am of opinion that the fiction of the civil law must be held to be of general application. The child will, therefore, be deemed to have been born at the time of the accident to the mother. Being an existing person in the eyes of the law it comes within the meaning of “another” in article 1053, and is, therefore, entitled through its tutor to maintain the action.”

It can readily be seen then that there is no such thing as a great weight of authority holding against the proposition before me. The courts have been progressively moving toward a just solution of the problem, particularly, where as a result of negligence prenatal injuries can be traced with a reasonable degree of certainty and more particularly still when there is a duty disregarded. As said in the Leveille case, medical science has already reached this stage. It is unquestionably the tendency of the more modern legal minds and authorities to allow a recovery where the element of causation is not too remote, but direct, and the facts are not too conjectural or dubious, and readily susceptible to competent and cogent proof. It might well be that upon the trial of an issue involving this principle that if negligence was proved in a particular case, the injuries or damage might be too remote or speculative to permit the case to go to a jury.

The only decision in this state directly dealing with the question before me is the recent one of Judge Barbour in Ryan v. Public Service, 18 N. J. Mis. R. 429; 14 Atl. Rep. (2d) 52. The facts in that case were quite different from those exhibited here. It is predicated upon the opinion of Mr. Justice Holmes in the Dietrich case, supra. In addition to what has already been said concerning that case, it contained the following passage: “No liability can arise therefrom except out of a duty disregarded and the defendant owed no duty of care to the unborn child in the present case apart from the duty of avoiding injuring the mother. Strong reasons of public policy may be urged both for and against allowing the new right of action. The conditions of Negligence law at the present time do not suggest that the reasons in favor of recovery so far outweigh those which may be advanced against it as to call for judicial legislation on the question.”

Even if it could be said that the conditions of the Negligence law at that time were not in favor of recovery and that in the usual negligence case injuries inflicted on a child en ventre sa mere are too remote to allow a recovery, could that reasoning be followed where the charge is based on malpractice? In a case such as the instant one, defendant was on notice that he might or might not be dealing with a child en ventre sa mere. Is the law such that he can then act negligently and escape all consequences? I do not believe the conditions of the Negligence law at the present day favor such a result, but that the reasons in favor of recovery so far outweigh those that may be advanced against it that the time has come to judicially determine such to be the law.

Lord Mansfield said “The law of England would be an absurd science were it founded upon precedent only.”

The well being and health of our children are of at least as much importance and in need of care and the protection of our courts as is their rights in property or under the criminal laws.

The law cannot to survive be stagnant. It cannot be a dead thing. It must be alive. It must progress as civilization progresses. It must keep abreast of the other arts and sciences in order to justify its existence.

While I am inclined to the general principle that the fiction of the civil law should be held to be of general application and that a right of action accrues to a child when delivered alive from its mother for injuries received while en venire sa mere, I am not now called upon to determine. that broad question.

I do conclude, however, that where as here the defendant is a doctor, and he knew or should have known of the existence of the child, that he owed a duty to that child, and if that duty was disregarded and through his negligence the child was injured while the mother was quick, if it is born viable, an action should lie on behalf of the child for'the damages occasioned it and for any consequential damages resulting therefrom to its parents.

The motion will be denied.


author: Jayne, C. C. J.

text:
    Atlantic County Circuit Court.
    AUGUSTUS CO., A CORPORATION FOR THE USE OF EDMUND A. BOURGEOIS AND EDMUND A. BOURGEOIS, PLAINTIFFS, v. JOSEPH A. MANZELLA, DEFENDANT.
    Decided December 27, 1940.
    For the plaintiffs, Augustus 8. Goetz.

    For the defendant, Robert Peacock.

   Jayne, C. C. J.

The aim of this proceeding is to nullify the issuance of a writ of attachment. It is asserted that the writ was improvidently 'granted. The writ was issued on July 26th, 1940, by the clerk of the county of Atlantic in consequence of an affidavit declaring that the above named defendant was indebted to the plaintiffs and that the debtor was not then a resident in this state. R. S. 2:42-5b.

The factual statements embodied in this affidavit are not conclusive. City Bank v. Merrit, 13 N. J. L. 131; Brundred ads. Del. Hoyo, 20 Id. 328; Clark ads. Likens, 26 Id. 207; Bisbee v. Bowden, 55 Id. 69; 25 Atl. Rep. 855. Recognizing the proper practice, depositions were taken. Baldwin v. Flagg, 43 N. J. L. 495; Vredenburgh v. Weidmann, 14 N. J. Mis. R. 285; 184 Atl. Rep. 459.

Fundamentally it may be observed that the origin of a proceeding to recover a debt by initially attaching the property of the debtor can not be discovered in the early common law. Such a proceeding seems to have been the creature of the custom of London and subsequently fully legitimatized by statute. The writ of attachment, however, is regarded as an extraordinary and not an ordinary writ. City Bank v. Merrit, supra; Leonard v. Stout, 36 N. J. L. 370; reversed, 37 Id. 492. To use this writ when the. debtor is within the reach of ordinary process is inimical to the spirit and design of this mode of procedure. Kugler v. Shreve, 28 Id. 129, 133. Nevertheless, our statute directs that its provisions shall be liberally construed for the detection of fraud, the advancement of justice and the benefit of creditors. R. S. 2:42-2.

In the present controversy, it is contended that the debtor was a resident of this state. A consideration of the meaning of the words “resident” and “residence” perhaps suggests references to the early case of Cadwalader v. Howell, 18 N. J. L. 138, and to. other cases that have arisen relating to our Divorce, Tax and Election acts but to ascertain the meaning of the word “resident” as employed in our Attachment act the following reported decisions may be more appropriately cited. City Bank v. Merrit, supra; Brundred ads. Del. Hoyo, supra; Kugler v. Shreve, supra; Hackettstown Bank v. Mitchell, 28 Id. 516; Perrine ads. Evans, 35 Id. 221; Leonard v. Stout, supra; Baldwin v. Flagg, supra; Stafford v. Mills, 57 Id. 570; 31 Atl. Rep. 1023; Coles v. Blythe, 69 N. J. L. 203; 54 Atl. Rep. 240; Hisor v. Vandiver, 83 N. J. L. 433; 85 Atl. Rep. 181; Missell v. Hayes, 84 N. J. L. 196; 85 Atl. Rep. 818.

Many serviceable precepts can be extracted from these decisions. Videlicet, mere presence in the state is not resiclence. Perrine ads. Evans, supra. Mere absence is not proof of non-residence. Leonard v. Stout, supra. Mere inconvenience in the service of summons or other process furnishes no reason for the issuance of an attachment against one as a non-resident debtor. Stafford v. Mills, supra. A creditor need not wait for a non-resident debtor to enter this state, although it is known that the debtor frequently does so. Hackettstown Bank v. Mitchell, supra; Perrine ads. Evans, supra. The time when the writ was issued and utilized is the time as of which the residence of the debtor is material. Baldwin v. Flagg, supra.

Mr. Justice Depue stated in Baldwin v. Flagg, supra: “Perrine ads. Evans in this court (6 Vr. 221), and Stout v. Leonard, in the Court of Errors (8 Id. 492), have placed this subject on a rational basis. A debtor may have his domicile in another state, and yet be exempt from process of attachment in this state. He may be in the habit of coming into this state so frequentiy and openly, that a creditor by watching an opportunity, may obtain personal service of process upon him, and still he will be liable to process of attachment. A residence or place of abode in this state of a temporary or permanent character, at which a summons might lawfully be served, is the condition on which process of attachment cannot be issued. If the debtor has not such a place of abode that a summons could be served at it, he is a non-resident within the meaning of the statute, and may be proceeded against by attachment.” This has been the authoritative test to which sucli problems have been uniformly subjected. See Coles v. Blythe, supra; Hisor v. Vandiver, supra; Missell v. Hayes, supra.

The depositions at hand occasion some perplexity. It has been stated that the solution of such questions sometimes depends on minute shades of distinction, which can hardly be defined and upon the circumstances of each case, the combinations of which are infinite. Leonard v. Stout, supra. The depositions here submitted disclose that the defendant is a physician and surgeon. He is married and his family consists of his wife, a son and a daughter. Until 1915, he practiced his profession at "Vineland, New Jersey, and then evidently resolved to engage in practice in Brooklyn, New York. For many years he has continuously maintained a farm at Yineland upon which is situate a dwelling house of nine rooms completely furnished and an accessary building for the accommodation of guests and employes. In 1919 he acquired a residential property at No. 340 Clinton street, Brooklyn, containing rooms for his professional needs and bedrooms, dining room and kitchen for the use of his family. His activities have obliged him to live at this address almost continuously. Although there were periods of time when the members of his family lived with him in Brooklyn, it is said that during the past ten years they have resided continuously at Yineland. The home at Yineland is his occasional destination throughout the year, when opportunity is afforded. Additional facts may be concisely stated and marshalled. He pays a poll tax in New Jersey and is registered and votes in Brooklyn. Until the present year he has owned two automobiles, one registered in this state, the other in New York. He and his wife procure motor vehicle drivers’ licenses from the authorities in New York. The son obtains his license from an agency in this state. The defendant in causing his name to be recorded in medical directories and other professional publications has represented the address in Brooklyn to be his residence. Then, moreover, in his income tax return, in the mortgage covering the Brooklyn property and in a suit against the Morro Castle Committee, he professed that the stated address in Brooklyn was his place of residence. About two years ago, he applied for and gained admission to the bar of the State of New York avowing his residence to be in Brooklyn. In a business interview with Mr. George A. Bourgeois, a member of our bar, the defendant informed Mr. Bourgeois that he lived in Brooklyn.

Little significance, perhaps, should be conferred upon the fact that in matters relating to business and professional affairs, the defendant customarily chose to declare his residence to be where he also maintained his offices. The factual circumstances in this case are unique. It must be acknowledged that there may be circumstances under which the residence of the wife may be in one jurisdiction and that of the husband in another. As a general rule, the legal residence of the wife follows that of her husband. Hackettstown Bank v. Mitchell, supra. A residence may be a place where one does not actually dwell or abide.

In Baldwin v. Flagg, supra, Mr. Justice Depue observed: “Whenever the propriety of a writ of attachment is in issue, the question is decided on a comparison of the Practice act, with respect to the service of writs of summons, with the provisions of the Attachment act.” It then must be noticed that the statute relating to the service of a summons does not direct service to be made at the “residence” of the defendant but at his “usual place of abode” which is a much more restricted term. Mygatt v. Coe, 63 N. J. L. 510; 44 Atl. Rep. 198; Camden Safe Deposit and Trust Co. v. Barbour, 66 N. J. L. 103; 48 Atl. Rep. 1008; Missell v. Hayes, supra; F. E. Compton & Co. v. Hulse, 10 N. J. Mis. R. 486; Sweeney v. Miner, 88 N. J. L. 361; 95 Atl. Rep. 1014. Abode is one’s fixed place of residence for the time being — the place where a person dwells. 1 C. J. 304. In Feighan v. Sobers & Son, 84 N. J. L. 575; 87 Atl. Rep. 636, it was held that the meaning to be ascribed to “usual place of abode” is the place where the defendant is actually living at the time the service is made. This conclusion was affirmed by the Court of Errors and Appeals. 86 N. J. L. 356; 91 Atl. Rep. 1068. Where, then, was the usual place of abode of this alleged debtor ?

The depositions assuredly reveal that whether for business or other reasons, the defendant permanently inhabits the house in Brooklyn. There he regularly dwells throughout each year. It is in reality his home. To him personally, the house at Yineland, New Jersey, is a place for his temporary and occasional occupation. An endeavor to have served him personally in this state with a summons, would probably have been ineffectual. Had a summons been left at his Yineland house, the defendant would have had equal reason to claim that such dwelling house was not his usual place of abode. A liberal construction of the Attachment act is opportune.

It is concluded that the rule to show cause should be discharged.

The subject-matter of this litigation is of a business or commercial nature. It is not apparent that the' defendant will suffer any particular inconvenience by reason of the attachment of his property, if the merits of the case are promptly determined. In such circumstances, this case, when issue is joined, may be given an advanced position on the trial calendar at the Atlantic Circuit.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AARON RODESKY, PETITIONER, v. CITY OF PATERSON (FIRE DEPARTMENT), RESPONDENT.
    Decided December 14, 1940.
    Por the petitioner, Abe Jaffe.

    Por the respondent, George Suroslcy.

   *******

The sole question in issue is whether or not the petitioner was a dependent of the decedent, either total or partial, within the intendment of the Workmen’s Compensation act, R. S. 1937, 34:15-13. The jurisdictional facts are not in dispute and were stipulated by counsel at the outset of the trial as follows: That Louis liodesky, deceased brother of petitioner, was regularly employed by the respondent in its fire department as a fireman, receiving wages of $92 semi-monthly; that ho met with an accident on April 12th, 1938, arising out of and in the course of his employment to wit — while assisting in the extinguishment of a fire on Prospect street, Paterson, New Jersey, one of the walls of the building collapsed and fell upon the decedent causing his instant death; and that the respondent had actual knowledge of the mishap within a few minutes after its occurrence.

Prom the evidence it appears that the decedent was unmarried and made his home with the petitioner and his family at 440 East Twenty-sixth street, Paterson, New Jersejq paying board at the rate of $10 per week, and, in addition thereto paying the monthly rent for the premises occupied by the petitioner in the amount of $45. It further appears from the evidence that the petitioner at the time of the accident and death was gainfully employed by Meyer Bros., operators of a department store in the city of Paterson, and had been for the past twenty years and still is so employed, receiving wages at the rate of $27.50 a week. His household consists of himself and his wife, there being no dependent children under the age of sixteen years. It further appears from the evidence that the petitioner, through his own frugality and resourcefulness, possesses two separate bank accounts derived primarily by savings from his earnings and through his own personal thrift.

The overwhelming weight of the evidence in this case, in my opinion, fails to establish that the petitioner at the time of the said accident and prior thereto was a dependent, either total or partial, within the meaning and purview of the Workmen’s Compensation act. A dependent, under the act, is one who is sustained by another or relies for support upon the aid'of another; who looks to another for reasonable necessities of life, such as food, clothing and shelter. The dependency which justifies a recovery under the act is a personal dependency for such support and maintenance — an actual dependency in fact for support consistent with dependent’s station in life.

Dependency is a question of fact. Benefit and dependency are not synonymous terms. See Harvey v. Erie Railroad Co., 88 N. J. L. 684; 96 Atl. Rep. 995; Miller v. Public Service Railroad Co., 86 N. J. L. 631; 92 Atl. Rep. 343, and Berger v. Oakes Co., 39 N. J. L. J. 296.

The phrase “who are dependents” as used in R. S. 1937, 34:15-13, means relatives in some degree who are wholly or to some substantial degree supported by the deceased at the time of his death. Hamill v. Pennsylvania Railroad Co., 87 N. J. L. 388; 94 Atl. Rep. 313, and Connors v. Public Service Railway Co., 89 N. J. L. 99; 97 Atl. Rep. 792.

In the present case it is not enough that the petitioner bore to the decedent one of the degrees of relationship enumerated under R. S. 1937, 34:15-13, but it was incumbent upon Mm to go further and establish dependency in fact — wholly or partially, upon the said decedent at the time of the accident and death. The evidence fails to disclose such proof. While it is true that the petitioner received a benefit from the decedent, benefit and dependency are not synonymous or interchangeable terms.

The distinction between benefit and dependency is succinctly pointed out in Sindle v. E. I. Dupont DeNemours, 96 N. J. L. 553; 115 Atl. Rep. 2. In that case a seventeen-year-old girl, unemancipated and living at home, who when killed in an industrial accident, had been employed only a lew' days for which she had not been paid; but at one time gave her mother $11 earned from previous work. It appeared that the day before she went to work a $550 player piano was received by the family, to pay for which the mother said the girl went to work. It was held that the mother was not a dependent of the decedent.

The petitioner having failed' to establish his right to compensation, it is * * * ordered that the petition herein filed be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    KATHERINE STEWART, PETITIONER, v. WALTER BRANT AND MILDRED T. BRANT, RESPONDENTS.
    Decided December 14, 1940.

      For the petitioner, Mario Turiur.

    For the respondent, Snevily & Ely (Paul Koch, of counsel).
   *******

From the undisputed facts as developed by the evidence I find that the petitioner, Katherine Stewart, met with an accident on August 12th, 1938, as she was performing housework in the respondents’ home at 304 Brook avenue, North Plainfield, New Jersey. The injury consisted of a sprain of the lower back caused by lifting a heavy sofa while cleaning the respondents’ living room. She testified that she was seized with a sharp sudden pain in the lower region of her back and that she lay helpless on the floor in a semi-collapse condition until she was assisted by the respondent Mildred T. Brant to a chair where she rested for twenty minutes before leaving for her home. Upon arriving at home Dr. B,. S. Cantini was summoned and treated her thereafter for eight (8) weeks, during most of which time the petitioner was confined to her bed. Subsequent thereto she received treatment for several months at intervals at the doctor’s office. At the present time she suffers from the residual effects of a back sprain, in that she is unable to bend forward or lift because of constant pain in the lower back; her left leg becomes paralyzed or numb when she sits too long in one position; and she is compelled to wear a surgical corset or back support because of weakness of the back and as an aid to relieve herself of the pain.

The respondents in controverting the petitioner’s right to compensation urge that the petition be dismissed on four separate grounds, to wit: (1) that the petition be dismissed as to the respondent Mildred T. Brant under the authority of Auten v. Johnson, 115 N. J. L. 71; 178 Atl. Rep. 187; (2) that the petition be dismissed because petitioner was a casual worker and not a servant of the respondents; (3) that the petition should be dismissed because petitioner’s injuries were not sustained in the course oí an industrial accident; and (4) that the petition should be dismissed because the petitioner failed to give notice of injury within the time fixed by the statute, and the claim is therefore barred. In passing upon these grounds I shall take them up in their chronological order.

With reference to the first ground I find merit to the respondent’s contention to the effect that the petition as it relates to the respondent Mildred T. Brant must be dismissed under the rule enunciated by Mr. Justice Heher in the Auten case, supra, “holding that a wife, as here, is not liable as a member of a joint undertaking under the Workmen’s Compensation act for an injury to a servant, in the absence of an express contract binding her own estate or circumstances clearly showing assumption of individual liability exclusive of that of her husband. The presumption being that in the employment of a house servant, a wife acts as her husband’s agent.” I am, therefore, constrained to dismiss the petition as against the respondent Mildred T. Brant.

With reference to the second, third and fourth grounds urged by the respondents, I find them wholly without merit. By the great weight of the evidence, the petitioner was not a casual employe but a regular employe within the purview and intendment of the Workmen’s Compensation act, performing household work for the respondents for one-half day every week or every two weeks for which she received $1 for each one-half day’s work.

By express statutory enactment one engaged in casual employment is excluded from the benefits of the Workmen’s Compensation act. Section 23 (c) defines an employe entitled to compensation as follows: “Employe is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employers’ business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring.” Casual employment it will be noted is divided into two classes, viz., (1) that which has no connection with the employer’s business; and (2) that which is not in connection with any business of the employer. Since the petitioner’s employment was not in 'the course of any business of the respondents, subdivision (2) of the definition is applicable to the present case. The question then arises as to the construction to be placed on the word “employment” as used in subdivision two of the definition. “Employment” as here used does not refer to a contract of employment.' A contract cannot be casual, as -it comprises a definite intentional act between the parties. A logical interpretation of the word, “employment,” as used in paragraph 23 (c) subdivision two, would be “the service at which one is employed.” Hence, an elaboration of the definition would read as follows: “employment is casual if the service at which one is employed is not regular, periodic or recurring.” The nature of the service at which one is employed is thus the controlling factor in determining the character of the employment as casual or not. It has been suggested that a proper test of whether or not the employment is casual, is: If, by agreement between the parties, the employe undertakes to render services to the employer at fixed times or for definite periods separated by intervals — that is, if the employe has the right to come to work at those times without being specially engaged from time to time, the employment is not casual. If, on the other hand, the employment ceases at the end of each day’s work or period of work, in the sense that the employe would not be expected to work again for the employer without a new engagement or hire, the employment is casual. But where the work, as in the case at bar, is more or less regular and recurring, although separated b3^ intervals, the respondents cannot escape liability by adopting a system of daily engagements, predicated on a new contract or hire for each engagement. See Harrington v. Garrison, 11 N. J. Mis. R. 754, supra. Hor am I impressed with respondents’ contention in labeling the petitioner “an itinerant worker.” Surely one engaged in doing general housework at more or less regular intervals is not in the samé category of the so-called itinerant worker who is principally engaged as a fruit or berry picker at brief periods during the agricultural season.

In so lar as the respondents’ contention that the petitioner’s injuries were not sustained in the course of an industrial accident, I find that the weight of the evidence is quite to the contrary.

sH * # * # * #

On the last point raised by the respondent, namely that the petition should be dismissed on the ground that there was -no notice given them of the injury within the time fixed by the statute, I find such contention likewise without merit. The statute, R. S. 1937, 34:15-17, specifically prescribes either knowledge or notice of an injury. Where, as here, the respondents had actual knowledge of the mishap, notice is not necessary. See Merritt v. American Stevedores, Inc., 15 N. J. Mis. R. 710; 195 Atl. Rep. 382. In the ease at bar, the uncontradicted testimony of the petitioner is to the effect that Mrs. Brant was present at the time of the mishap and actually assisted her from the floor to a chair; such knowledge relieves the petitioner of giving notice.

% i*c % }■« i»i i'.i

That on August 12th, 1938, the petitioner suffered an injury to her back as a result of an accident arising out of and in the course of her employment.

$ ^ $ $ $ $ ^

That as a result of said injury and condition which followed, the petitioner suffers a permanent disability equivalent to ten per cent, of the total.

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And, it is further ordered that the petition in so far as it refers to the respondent Mildred T. Brant be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARGARET JOHNSON, PETITIONER, v. H. GASNER, INC., GLENS FALLS INDEMNITY CO., RESPONDENT.
    Decided December 16, 1940.
    For the petitioner, David Roshein.

    For the respondent, Oox <& Walburg (by Arthur Mead).

   A formal petition having been filed in the above matter on September 12th, 1939, claiming compensation under and by virtue of R. S. 1937, ch. 34:15, and an answer having been filed and the parties appearing before me at Newark on November 14th and November 18th, 1940, and testimony being taken in my presence and in the presence of counsel, I find and determine as follows:

It was stipulated and agreed between the parties that the testimony adduced under the petition filed herein should be considered as the testimony adduced under a certain other claim petition filed by Edward Johnson, deceased husband of the within petitioner, on September 12th, 1939. The claim petition for the within petition is number 49728. The claim petition filed by Edward Johnson is 46349. It was alleged that Edward Johnson on October 7th, 1937, in the course of his regular employment with the respondent, had occasion to repair an icebox and that while doing so he inhaled sulphur dioxide which ultimately caused his death.

A William Sullivan testified on behalf of the petitioner as to the occurrence of this event although he did not know of his own knowledge that this had actually occurred to Edward but that be had spoken to Edward as Edward came back to work and the event was recited to him. The decedent remained out of work for a period of approximately two weeks following the episode and then returned to his regular work as a service man doing his regular work. After working approximately two or three weeks upon his return, his employment was discontinued because of lack of business and the decedent obtained employment at a place known as the Hill Top Tavern where he worked steadily thereafter until the latter part of January, 1939.

The petitioner testified to this continuation of employment of the decedent and stated that her husband, the decedent, did not complain or say very much. The first night after the accident he coughed a little but thereafter he stated he was feeling all right and after a few weeks he appeared to be in good health. All during the time he was working at the tavern he appeared to be well and made no complaints until the early part of 1939 when he began looking white and seemed to be a little weak. He then went to a doctor. Later he was referred to a sanatorium and subsequently died.

A Mrs. Theiss, a sister-in-law of Edward, stated that she was present at her mother’s home the day following the accident and that Edward seemed to be sick for that day. He stayed home for two weeks and then returned to work. She stated that he complained of irritation in his throat and he appeared to have a' cough which was more in his throat than anywhere else.

On behalf of the petitioner, Dr. Champlin stated that he had occasion to examine the decedent as b food handler in Bloomfield and on his examination found no pulmonary condition, no signs of^ tuberculosis and had a negative sputum test. Also on December 28th, 1938, he found no pulmonary condition and so reported. His reports and the health cards were placed in evidence. He also had occasion to refer the decedent to the Orange Memorial Hospital in December, 1937, when the decedent offered himself as a blood donor for a member of the family. The decedent was accepted as a blood donor after a thorough physical examination. Dr. Champlin then saw the decedent in the early part of 1939 at which time he referred him to Dr. Repas and subsequently the decedent was entered in the Verona Sanatorium January of 1939 and discharged July, 1939. The decedent was not under treatment then until April, 1940, when he was again sent to the Verona Sanatorium and where he died April 26th, 1940, of tubercular meningitis.

The doctor when presented with all of the facts as a hypothetical composition, stated by reason of the,facts themselves there should be some connection between the exposure to sulphur dioxide and the illness which the decedent had and his subsequent death. The death certificate was placed in evidence. The petitioner produced other documentary and oral testimony.

On behalf of the respondent, Dr. Koppel testified from numerous examinations made by him. These examinations were made during the lifetime of the decedent. He stated that in his opinion the decedent did not suffer any pulmonary condition as a result of the episode of October 7th, 1937. He stated that there appeared to be no pathological process evidenced either clinically -or on pathological examinations made shortly after the alleged accident and for a period of at least two years thereafter. He admitted, however, that by reason of the contact with sulphur dioxide there might have been a throat irritation as evidenced by the cough described by the lay witnesses. This condition he characterized as possibly being a laryngitis or tracheitis. He further conceded that such a condition although it is not a pulmonary condition might cause a permanent functional disability which he would measure to the extent of approximately twenty-five per cent, of total disability.

Dr. Poliak, a recognized expert in the field of pulmonary diseases, testified from examinations made by him and a study of the medical reports and the X-rays. He expressed his opinion there was no causal connection between the death and the episode of October 7th, 1937. He stated that X-rays had been taken a few days after that episode and these X-rays showed an old healed tubercular lesion in the left upper lobe. He stated that there was no active condition manifest either on clinical signs or in the X-ray pictures and that if there were any connection between the episode and a pulmonary condition it certainly would have shown some active condition. The fact was that there was no active condition shown either clinically or otherwise. He conceded, however, that sulphur dioxide is an irritating vapor or gas and that it might cause a tracheitis which is purely local condition brought about by the irritation of the membranes. He did not attempt to estimate the extent of such a condition if it did exist.

I am satisfied from a consideration of the testimony adduced before me with respect to the claim made herein, that the decedent’s death from tubercular meningitis was not the result of the episode of October, 1937. There appears to have been no clinical or other substantial medical evidence that there was activation of a pulmonary condition shortly after the accident or for that matter for a period covering several years. The death certificate placed in evidence further confirms the fact that the doctor who attended the decedent at the Essex County Sanitarium and who must have had before him the entire case history during that attendance in certifying to the cause of death did not certify that death was in any way caused by any accident or occupational episode.

In consideration of my finding that the decedent’s death was not the result of the alleged accident either directly or indirectly, it is, therefore, * * * ordered, that the petition herein be dismissed and judgment be entered in favor of the respondent.

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD JOHNSON, PETITIONER, v. H. GASNER, INC., GLENS FALLS INDEMNITY CO., RESPONDENT.
    Decided December 16, 1940.
    For the petitioner, David Roshein.

    For the respondent, Cox & Walburg (by Arthur Mead).

   * * * * * *

It was stipulated and agreed between the parties that the testimony adduced under the petition filed herein should be considered as the testimony adduced under a certain other claim petition filed by Margaret Johnson, widow of the petitioner, on June 11th, 1940. The claim petition for the within petition is number 46349. The claim petition filed by Margaret Johnson is number 49728. It was alleged that Edward Johnson on October 7th, 1937, in the course of his regular employment with the respondent, had occasion to repair an icebox and that while doing so he inhaled sulphur dioxide.

A William Sullivan testified on behalf of the petitioner as to the occurrence of this event although he did not know of his own knowledge that this had actually occurred to Edward but that he had spoken to Edward as Edward came back to work and the event was recited to him. The petitioner remained out of work for a period of approximately two weeks following the episode and then returned to his regular work as a service man doing his regular work. After working approximately two or three weeks upon his return his employment was discontinued because of lack of business and he obtained employment at a place known as the Hill Top Tavern where he worked steadily thereafter until the latter part of January, 1939.

Mrs. Johnson testified to this continuation of employment and stated that her husband did not complain or say very much. The first night after the accident he coughed a little but thereafter he stated he was feeling all right and after a few weeks he appeared to be in good health. All during the time he was working at the tavern he appeared to be well and made no complaints until the early part of 1939 when he began looking white and seemed to be a little weak. He then went to a doctor. Later he was referred to a sanatorium and subsequently died.

A Mrs. Theiss, a sister-in-law of Edward, stated that she was present in her mother’s home the day following the accident and that Edward seemed to be sick for that day. He stayed home for two weeks and then returned to work. She stated that he complained of irritation in his throat and he appeared to have a cough which was more in his throat than anywhere else.

On behalf of the petitioner, Dr. Champlin stated that he had occasion to examine the petitioner as a food handler in Bloomfield and on his examination found no pulmonary condition, no signs of tuberculosis and had a negative sputum test. Also on December 28th, 1938, he found no pulmonary condition and so reported. His reports and the health cards were placed in evidence. He also had occasion to refer the petitioner to the Orange Memorial Hospital in December, 1937, when the petitioner offered himself as a blood donor for a member of the family. The petitioner was accepted as a blood donor after a thorough physical examination. Dr. Champlin then saw the petitioner in the early part of 1939 at which time he referred the petitioner to Dr. Repas and subsequently the petitioner was entered in Yerona Sanatorium January of 1939 and discharged July, 1939. The petitioner was not under treatment then until April, 1940, when he was again sent to the Yerona Sanatorium and where he died April 26th, 1940, of tubercular meningitis.

The doctor wdien presented with all of the facts as a hypothetical composition, stated by reason of the facts themselves there should be some connection between the exposure to sulphur dioxide and the illness which the petitioner had and his subsequent death. The death certificate was placed in evidence. The petitioner produced other documentary and oral testimony.

On behalf of the respondent, Di\ Koppel testified from numerous examinations made by him. These examinations were made during the lifetime of the petitioner. He stated that in his opinion the petitioner did not suffer any pulmonary condition as a result of the episode of October 7th, 1937. He stated that there appeared to be no pathological process evidenced either clinically or on pathological examinations made shortly after the alleged accident and for a period of at least two years' thereafter. He admitted, however, that by reason of the contact with sulphur dioxide there might have been a throat irritation as evidenced by the cough described by the lay witnesses. This condition he characterized as possibly being a laryngitis or tracheitis. He further conceded that such a condition although it is not a pulmonary condition might cause a permanent functional disability which he would measure to the extent of approximately twentjf-five per cent, of total disability.

Dr. Poliak, a recognized expert in the field of pulmonary diseases, testified from examinations made by him and a study of the medical reports and the X-rays. He expressed his opinion there was no causal connection between the death and the episode of October 7th, 1937. He stated that X-rays had been taken a few days after that episode and these X-rays showed' an old healed tubercular lesion in the left upper lobe. He stated there was no active condition manifest either on clinical signs or in the X-ray pictures and that if there were any connection between the episode and a pulmonary condition it certainly would have shown some active condition. The fact was that there was no active condition shown either clinically or otherwise. He conceded, however, that sulphur dioxide is an irritating vapor or gas and that it might cause a tracheitis which is a purely local condition brought about by the irritation of the membranes. He did not attempt to estimate the extent of such a condition if it did exist.

After careful consideration of the testimony adduced before me, it is my opinion that giving the most favorable interpretation of the testimony possible, that the petitioner suffered an accident arising out of and in the course of his employment on October 7th, 1937. I further find that he inhaled sulphur dioxide which caused him to be incapacitated for a period of approximately two weeks and thereafter he returned to work. I further find from the testimony that this did not cause any pulmonary condition either directly or by aggravation of a tubercular process.

I am of the opinion, however, considering the testimony of the lay witnesses and a description of the coughing which the petitioner had and the admissions of Dr. Koppel and Dr. Poliak of the possibility of a tracheitis that there was an irritation of the throat causing a tracheitis which in turn caused a permanent disability. The extent of that disability I find to be twenty-five per cent, of total.

It is, therefore, * * * ordered, that judgment be entered in favor of the petitioner and against the respondent for permanent disability amounting to twenty-five per cent, of total. * * *

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM SHERLOCK, PETITIONER, v. CALCO CHEMICAL COMPANY, RESPONDENT.
    Decided December 20, 1940.
    For the petitioner, Samuel I. Kahn (by Henry Harris).
    For the respondent, Albert E. Schober.

   * * $ * $ ❖ *

Petitioner testified that on June 5th, 1940, while operating an electric truck, his right foot was caught between the truck and some other object, and he thereby suffered a fracture of the foot. He was taken to the Beth Israel Hospital, and was treated for the injury to his foot. He returned to work on September 24th, 1940, and was paid two weeks temporary compensation at the compensation rate of $14.93 per week. He further testified that he had operated this electric truck previously, and had never been told not to use the truck, and that he was making use of the truck at the time of the accident in order to enable him to move certain materials from a freight car to the warehouse.

Dr. Max Hummel testified that his examinations of the petitioner on two occasions, indicated that the petitioner suffered a fracture of the right foot, causing a permanent disability of twenty-five per cent, of that member.

The respondent produced several witnesses who testified that on the morning of the accident, the foreman called together all of the employes in the delivery department, including the petitioner, William Sherlock, and instructed them as to their duties with reference to the unloading of the freight car, and that the foreman had designated another workman to operate the electric truck, and that William Sherlock was to assist him in the unloading and loading of the bales from the electric truck.

Dr. Irving Willner testified that his examination of the petitioner indicated that as a result of the injury to his right foot, the petitioner -would have a permanent disability of fifteen per cent, of that member.

After considering all the evidence in this case, I am of the opinion that the petitioner met with an accident arising out of and in the course of his employment by the respondent on June 5th, 1940,. and that the petitioner was not willfully disobeying his instructions at the time of the aforesaid accident, but that his operation of the truck was within the sphere of his employment, and in furtherance of his duties in the delivery department of the respondent.

I am further of the opinion that the petitioner is entitled to temporary disability from the date of the accident, June 5th, 1940, to September 23d, 1940, inclusive, and twenty per cent, permanent disability of the right foot.

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It is further ordered, that judgment be entered in favor of the petitioner and against the respondent for twenty per cent, permanent disability of the right foot.

í-s sfc sH

John C. Wegner, Deputy Commissioner.