text:
    ANNA BELLESHEIM, PLAINTIFF-RESPONDENT, v. POLICE PENSION FUND COMMISSION AND THE BOROUGH OF CARLSTADT, DEFENDANTS-APPELLANTS.
    Argued October 6, 1926 —
    Decided March 23, 1927.
    Pensions — Police—Question Here Raised is Whether Plaintiff was Lawful Wife of Deceased Policeman — Evidence Examined and Plaintiff’s Claim Sustained.
    On appeal from the Second District Court of Bergen county.
    Before Justices Kalisch, Katzenbach and Lloyd.
    Eor the appellants, DeTurch & West.

    Eor the respondent, Feder & Binzler and John J. Breslin, Jr.

   Per Curiam.

The police pension fund commission and the borough of Carlstadt, defendants below, appeal from a judgment rendered for the plaintiff in the District Court of the Second Judicial District of Bergen county. The action was to recover a pension claimed by the plaintiff, Anna Bellesheim, to be due her upon the death of Henry P. Bellesheim, who at the time of his death, August 12th, 1925, was chief of police of the borough. The primary question in the case was whether the plaintiff was the lawful widow of Bellesheim by virtue of a marriage before Bellesheim reached the age of fifty years, and the legal sufficiency of the plaintiff’s proofs on this point was attempted to be raised on motions for non-suit and for direction of a verdict for defendants.

The evidence showed that Bellesheim, then a married man, went through a ceremonial marriage with the plaintiff in 1903, and that from the time of this marriage plaintiff and Belleslieim lived together as husband and wife until the death of the latter in 1925. In 1912 the first wife died, and if this were all, the marriage in 1903 being void, the law would presume the meretricious relation once established would continue so to the end. There was evidence, however, that in 1913, after the death of the first wife, plaintiff and Bellesheim contracted a common law marriage, which, of course, would change the meretricious status theretofore existing. In answer to the question, “Did you go through any other ceremonial marriage with Mr. Bellesheim between the time you married him in 1903 and the time yon remarried him, as you say, in 1921 ?” The plaintiff answer, “1913, by mouth,” and to the further question, “Between January 29th, 1903, and December 7th, 1921, the only reason you lived with Mr. Bellesheim was because of the marriage that took place in 1903,” she answered, “we were married,” and that at the same time Bellesheim said to her, “we are married; why worry?” and “you are my wife.” It further appeared with much definiteness that the parties held themselves out to he husband and wife and were so known to their world of acquaintances.

Upon this testimony we think a valid marriage could be based. It fairly implies in the present tense, the establishment of now marital obligations by which a valid marriage was substituted for the illicit relations theretofore existing. Jackson v. Jackson, 94 N. J. Eq. 233.

It is also- complained that the trial judge erred in permitting the, ease to proceed with eleven jurors at the start of the case, and in subsequently determining that there was no question of fact to be decided and in disposing of the ease himself. To the first it is sufficient to say that it appears from the record that counsel stipulated that they would try the ease with eleven jurors, and at no place in the record does it appear that the defendants excepted or even objected to the course taken by the court, defendant’s counsel even indicating his desire to file a brief in the new phase the case was taking.

Other points raised on the appeal pertain to rulings during the trial of the case, among them that the court refused to strike out some of the testimony above quoted, and also that it improperly admitted a clergjmian’s certificate of a marriage in 1921 and the reasons therefor. The ruling on the first was proper and on the second the certificate of marriage was competent in so far as it certified to the marriage, and as to the remainder it simply reiterated facts already proven and not in dispute.

The remaining alleged trial errors have been examined, but we find them without merit.

What has been said in the early part of this opinion deals with the case on the assumption that the fundamental questions involved in the case have been properly raised on appeal. There is serious doubt, however, if this is so. To the refusal of the court to grant a nonsuit or to direct a verdict in favor of the defendants, no exception was taken, and the only other point argued on this phase of the case is that “there was no legal evidence before the trial court which justified a judgment in favor of the plaintiff-appellee and against the defendants-appellants.” It is doubtful if this can be regarded as an assignment of error to the entering of final judgment as accorded by the act of 1916. Pamph. L., p. 109.

The judgment of the court below is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THOMAS C. AITKEN, RELATOR, v. BOROUGH OF HASBROUCK HEIGHTS AND WALTER BROOME, BUILDING INSPECTOR, RESPONDENTS.
    Submitted March 18, 1927
    Decided April 8, 1927.
    Zoning — Erection of Store and Apartment-house — Ordinance Does Not Appear to Cover This Territory on Which it is Sought to Build the House — There Being no Board of Adjustment to Which Appeal May be Had, Mandamus Lies and a Peremptory Writ May be Issued.
    ' On rule to show cause why mandamus should not issue.
    Before Justices Parker, Black and Campbell.
    For the relator, Winne & Banta.

    For the respondents, Ralph W. Chandless.

   Per Curiam.

The zoning ordinance of Hasbrouck Heights is claimed to bar the issue of a permit to relator for a two-story store and apartment building on the corner of Washington Place and Terrace avenue.

It might well be said that the zoning ordinance does not affect this property at all, or if it does, that it contains no prohibition of such a building as relator desires to erect. It purports to divide the whole borough into two districts, designated as “business” and “industrial.” Eelator’s proposed building is not prohibited in either class. But more than this, the location of the two districts is referred to a map, the examination whereof discloses that the business district is a narrow strip bordering the boulevard on each side, and the industrial is another similar strip marching with the New Jersey and New York railroad (Erie) at the foot of the hill. Hence, most of the borough, say eighty to ninety per cent., is not zoned at all.' Terrace avenue is about midway between these strips and parallel with them, and runs through territory which may be called “blank.” It is the old Pollifly road running between East Newark and Hackensack, under a modern name. We can find no regulation whatever of this locality in the ordinance, and for this reason alone, relator would be entitled to his writ.

If the district were zoned as residential, the result w'ould probably be the same. Terrace avenue, the old Pollifly road, is a through highway and main traffic artery, and has been such for probably two centuries. In the ten miles between Newark and Hackensack it runs through eight of ten municipalities. The stipulation of facts show that in the borough of Hasbrouck Heights there are a number of business buildings fronting on this road, including seven gasoline stations, within a very short distance of the premises in question. The physical situation is similar to that in Builders’ Realty Co. v. Bigelow, 3 N. J. Mis. R. 540.

As there is no board of zoning adjustment to which appeal can be had, mandamus lies. Relator is entitled to a peremptory writ.


text:
    MARGARET PRISCELL, RELATOR, v. CITY OF EAST ORANGE AND JOHN G. SCOTT, BUILDING INSPECTOR, RESPONDENTS.
    Submitted January 28, 1927
    Decided April 8, 1927.
    Zoning — Gasoline Station in a Residence Section — Court has Been Uniformly Adverse to Overriding Local Authorities in the Case of Public Garages and Gasoline Stations in Districts Generally Residential.
    On demurrer to return to alternative writ of mandamus.

    Before Justices Pakkek, Black and Campbell.

      Eor the relator, Theodore G. Eindenlang.

    Eor the respondents, Walter G. Ellis.

   Per Curiam.

Relator desires to erect, in disregard of the local zoning ordinance, on the northeast corner of Park avenue and North Sixteenth street, East Orange, a “one-story wholly tile and stucco building for the purpose of an office for a gasoline station with a canopy for the pump island.”

The premises are in the “large volume residence district” which assimilates the case in that particular to Long v. Scott, 4 N. J. Mis. R. 587; 133 Atl. Rep. 767, which case, also involving a gasoline station, arose in the same municipality, on the same street, about half a mile to the westward.

The surroundings in the present case are different in some respects, but we learn from a stipulation of facts, which for purposes of this demurrer we treat as part of the record, that the neighborhood is entirely residential except for some half dozen buildings devoted to business purposes in whole or part.

Whatever might be said with respect to a building for ordinary mercantile purposes in this location, the court has been almost uniformly adverse to overriding the local' authorities in the case of public garages and gasoline stations, with their attending fumes, noises and fire hazard, in districts generally residential. Hench v. East Orange, 130 Atl. Rep. 363; 2 N. J. Mis. R. 510. To entitle a party to a mandamus his legal right must be clear; and applying that rule to such a ease as this, the zoning ordinance in its application to relator’s case must be clearly shown to be unreasonable. We are not satisfied that it is unreasonable in this case, and this leads to a judgment overruling the demurrer and in favor of the defendants, with costs.


text:
    THE STATE, DEFENDANT IN ERROR, v. STANLEY SYMOWITZ, PLAINTIFF IN ERROR.
    Submitted January 28, 1927
    Decided April 8, 1927.
    Crimes — Assault and Battery With Intent to Kill — Objection to Charge to Jury, the Objectionable Part Being Reproduced in Full — Judge Distinctly Warned the Jury Not to Let His Belief Take the Place of Theirs — This is Enough to Support the Charge Against the Omnibus Attack.
    On error to the Hudson Quarter Sessions.
    Before Justices Parker, Black and Campbell.
    Por the state, John Milton, prosecutor of the pleas.
    For the plaintiff in error, George E. Gutley.

   Per Curiam.

Plaintiff in error was convicted on an indictment for assault and battery with intent to kill, and brings this writ of error. Of the nine assignments- of error and eight causes for reversal (which are identical with the first eight assignments) only one appears to be relied on, i. e., the sixth, which is here reproduced entire.:

“6. The court in charging the jury erred, in that it charged the jury as follows:

“ ‘The state, as I say, produced not only the witness O’Con-nor, but it produced the witness Gleason, who testified, as they produced a third witness, Thomas Silvay. You heard that gentleman’s testimony on the stand. How did he impress you ? Do you think he told the truth, gentlemen of the jury? You will remember I cautioned you against receiving the evidence that had been drawn from him by the state in the first instance, and told you to disregard his testimony so far as it was brought out in his direct examination by Mr. Cutley, and I told you to regard only his testimony from the time it was brought out by Mr. Cutley and the subsequent redirect examination by Mr. George. The state maintained it was surprised at the character of the testimony this witness offered; in other words, they did not expect him to give that testimony and there was surprise. Therefore, under the case of the State v. D’Adams, I allowed the prosecutor to cross-examine for the purpose of trying to get at the truth, and I, therefore, cautioned you, and I now caution you, to disregard that portion of his testimony brought out in the first instance by. Mr. George and to wipe that off the slate entirely. Now, Gentlemen of the jury, how far after, in the examination by Mr. Cutley, and the subsequent examination by Mr. George, did that witness tell the truth? Do you think that he told the truth * * * the man who had been on trial, who said he was in that place and knew the man who fired the shot, but he could not recall his name but he could tell him if he saw him? Do you believe that man was telling the truth? I personally do not believe it, but gentlemen do not accept my belief as a substitute for yours; do not allow it to take the place of yours. You may believe it, but after all, gentlemen of the jury, you, as I have stated before, are the judges of the credibility of the witnesses. Now, do you believe that this man was absent or do you believe that he was present and that he fired the shot ?’ ”

The case is submitted on briefs, and, as we read the brief for the plaintiff in error, complaint is made of this lengthy excerpt, or of parts thereof, in the following particulars:

1. Asking the jury whether they believed Silvay’s testimony, in such form as to give them the impression that the judge himself did not believe it; and later stating plainly his disbelief.

2. In discussing the testimony at all; the proposition apparently being that as the court had instructed the jury to disregard Silvay’s examination in chief, that of itself removed also from the case the cross and the redirect.

3. In reiterating the instruction given in the course of the trial, that the jury were to disregard said examination in chief.

We do not feel called upon to decide the second or third of these questions, for the rule is settled (and it is a sound rule imposing no hardship) that a cause for reversal or assignment of error, attacking as erroneous a lengthy excerpt from the charge, which contains several distinct propositions, is ineffective if one of said propositions is well founded in law. State v. Spallone, 97 N. J. L. 221; State v. Bove, 98 Id. 350, 355; affirmed, Id. 576. Referring to the extract copied above, the further rule is settled in this state that the court in commenting on testimony may properly express his own opinion of its veracity, so long as the jury is left free to use its own judgment in that regard.

Hence, there was no error in that respect, as the judge distinctly warned the jury not to let his belief take the place of theirs. We do not look further; this is enough to support the excerpt as against an omnibus attack in disregard of the rule invoked in State v. Spallone, supra.

The judgment will be affirmed.


text:
    WALEYAN J. DUCHATKIEWICZ, PLAINTIFF-RESPONDENT, v. BENJAMIN H. COHEN AND ABE GOLDSTEIN, PARTNERS, TRADING AS COHEN & GOLDSTEIN, DEFENDANTS-APPELLANTS.
    Submitted January 28, 1927
    Decided April 6, 1927.
    Contracts — Mechanics’ Lien — Alleged That Written Consideration was Not the Same as That of the Oral Agreement — Held That the Allegation is Supported by Parol Evidence Only— Claim That Certain Memoranda Relating to Credits Had Been Excluded, Examined and Found Unjustified.
    On appeal from the Burlington Circuit Court.
    Before Justices Paekek, Black and Campbell

      Eor the defendants-appellants, Charles A. Bigg and Ernest Watts.

   Per Curiam.

This is a mechanics’ lien suit by builder against owner, for unpaid balance on the contract. The main defense offered at the trial was that in the written contract the consideration had been expressed as $57.50, when the real agreement was $3,750. No fraud inter, partes was claimed; it was the simple case of a party offering parol evidence to contradict the written instrument, and that evidence the judge very properly shut out. See, e. g., Booye v. Ries, 4 N. J. Adv. R. 1281.

The other point made relates to excluding certain memoranda which, as claimed for appellants, would show that defendants below were entitled to more credits than allowed by the court when directing a verdict. We cannot find that they were excluded, for it does not appear that they were offered. They were marked for identification A, B and C, but that appears to be all. At the end of the case the court and counsel checked up all the credits satisfactorily to defendant’s counsel, and the work on the building being admittedly complete, directed a verdict for the proper amount. This was manifestly correct.

The judgment will be affirmed.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EMANUEL DREYFUS. PETITIONER, v. LUTZ COMPANY, A CORPORATION, RESPONDENT.
    Injury to Employe While Cutting a Piece of Wood Which in no Way was Necessary to be Done in the Course of His Employment.
   DETERMINATION.

A formal petition having been filed in the above matter asking for compensation under the terms of the Workmen’s Compensation act of this state and an answer having been duly filed by the respondent; the same came on for a formal hearing before me in Jersey City on the 10th day of December, 1926. The permanent and temporary disability was stipulated and agreed upon by both parties to the action.

At the hearing Mr. Dreyfus testified in his own behalf but did not call any other witnesses to corroborate his testimony. Mr. Dreyfus testified that in his regular duties as a general shop hand helper in a factory he had to use strips of wood two or three feet long to place by the scales while they dried. Strips of wood were provided him of this length for this purpose. Mr. Dreyfus testified that on August 13th, 1926, on returning from the yard with some of these strips of wood he stopped at a cross-cut machine and, in cutting a piece of wood less than two feet long, about one and one-quarter inches wide and about one-quarter inch thick, he injured his hand.

On behalf of the respondent, Mr. Joseph Efeiffer, who was employed as a foreman by the respondent company, and John Kessler, an employe of the respondent, testified. Both witnesses testified that the piece of wood that Mr. Dreyfus was cutting at the time he was injured was eighteen inches long and that cutting the wood was in no way necessary or useful for the job that Mr. Dreyfus was to do with it.

Accordingly, I find from a preponderance of the testimony that the petitioner failed to sustain the burden of proof that he sustained an injury by accident arising out of and in the course of his employment, in that the petitioner deviated from his regular employment doing an act which was utterly unnecessary and useless for the accomplishment of his duties. The petitioner is therefore not entitled to any compensation.

Accordingly, the case is hereby dismissed, without cost to either party.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    EMMA HOEFELD, PETITIONER, v. BERNSTEIN & COMPANY, RESPONDENT.
    Death Occurr.ng During Employment — No Evidence That it Oc curred as the Result of an Accident — A Robbery Had Been Attempted but Death is Not Connected With it — Burden is on Petitioner to Show Accident During Employment.
    On petition for compensation.
    Eor the petitioner, John G. Flanigan.

    Eor the respondent, Walter D. Van Riper.

   ❖ ❖ * ❖ * * #

It appears from the stipulation of testimony in this ease that on Saturday, November 22d, the deceased, Albert Hoefeld, was employed by the respondent, Bernstein & Company, at the Jersey City clothing store in the capacity of receiving clerk and custodian of premises. He worked at the store until eleven o’clock Saturday night, November 22d, 1924, went home, and some time during the night he was notified of an attempted breaking and entering of the store. He went to the store and locked it up and returned home.

Betuming to the store at six-thirty A. m. the next day he entered, and at .one o’clock in the afternoon of the same day he was found dead in or near the telephone booth.

The question, therefore, is whether or not the death was caused as the result of an accident arising out of and in the course of employment.

From the evidence it is proper to find that at the time he was in the course of his employment, but there is absolutely no evidence that he suffered an accident arising out of his employment. Under the Compensation law the burden is upon the petitioner to prove an accident arising out of and in the course of employment. From the evidence it cannot be found that deceased’s death was any more likely to be due to an accident than from natural causes, and there is no evidence sufficient to assume that the death was the result of an accident arising out of and in the course of employment.

For,the above reasons I must dismiss the petition and find judgment in favor of the respondent.

# # Hí % %

Charles E. Corbin, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    TESSIE BAKOS, PETITIONER, v. KNIGHT CONSTRUCTION COMPANY, RESPONDENT.
    Death of Employe Caused by Motor Vehicle Accident While in Employer’s Truck, In Which He was Being Transported From His Home to His Work.
    On petition for compensation. On determination of facts and ride for judgment.
    Eor tlie petitioner, Samuel G. Meyerson.

    For the respondent, Frank G. Turner.

   *******

1. This is a proceeding brought by Tessie Bakos, the widow of her deceased husband, Joseph Bakos, against the Knight Construction Company, the employer, for compensation under an act entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of the employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts supplemental thereto and amendatory thereof. This matter having been regularly set down for a hearing, it was tried before me on the 19th day of October, 1926, in the presence of the attorneys for both sides.

2. I find that the deceased, Joseph Bakos, was employed by the respondent as a laborer at the rate of $4 per day; that under the terms of the said employment, said deceased was to he transported from his residence at Hibernia to the place of employment or the central distributing office at Morris-town, and at the end of the day was to be returned to Hibernia.

3. That while in the course of his employment and on his way to the central distributing point at Morristown, on the 5th clay of May, 1926, the truck belonging to the employer, and in which the deceased was being transported from Hibernia to Morristown, met with an accident. The deceased was thrown out of the truck and suffered an injury from which he died two days later.

4. That the employer had knowledge of the said accident.

5. That the facts in detail were as follows: The said employe, the deceased, lived in Hibernia, about twelve miles from Morristown. After going to work from Hibernia to Morristown for three days, dissatisfaction was expressed by him through his son, in a conversation had with the president of the respondent corporation. The deceased was unwilling to' work for the wages of $4 a day and pay for his transportation or use his own car. As a result of this protest, the respondent permitted the deceased, with other laborers living in Hibernia, to use the truck of the respondent to go to Avork and return each day. The said truck was driven by a son of the deceased, also in the employ of the respondent company, and it Avas the custom for more than a month prior to the accident for the son to take the respondent’s truck, with the knowledge and consent of the respondent, and transport the laborers from Morristown to Hibernia and bring them all to Ayork the next morning. Both the president of the respondent corporation and the foreman of the company kneAv of this practice, and the use of the truck was had with the knowledge and consent of the respondent corporation. While being so used, on the 5th day of May, 1926, the driver lost control of the truck, and it overturned, killing the deceased; and knoAV'ledge of this accident was had by the respondent within the. time prescribed in the said act.

6. From the evidence, I conclude and find that the transportation of the decedent was an incident to his employment and a part of the contract of employment and that the accident arose out of and in the course of the said employment.

7. I find that the petitioner is entitled to be reimbursed •for funeral expenses to the sum of $150. I find that the costs should be paid by the respondent, as well as a counsel fee of $750.

8. That the wages of deceased were $24 per week; that the dependents of the deceased are as follows:

Tessie Bakos, widow; Mary Bakos, born September 16th, 1911; Joseph Bakos, born February loth, 1913; Katherine Bakos, born October 6th, 1915; Tony Bakos, born June 14th, 1919; Paul Bakos, born April 4th, 1922; George Bakos, born May 16th, 1926.

It is therefore ordered, that judgment final be entered in favor of the petitioner, and that the respondent pay or cause to be paid to the dependents of the petitioner the following sums:

$14.40 per week from May 5th, 1926, to February 15th, 1929.

$13.20 per week from February 15th, 1929, to October 6tli, 1931.

$12.00 per week from October 6th, 1931, to March 2d, 1932.

$10.80 per week from March 2d, 1932, to June 14th, 1935.

$9.60 per week from June- 14th, 1935, until April 4th, 1938.

$8.40 per week from April 4th, 1938, to May 16th, 1942, together with funeral bill of $150, and the costs of these proceedings, and counsel fee of $750, right being reserved to apply for further counsel fee in this matter.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    AMERICO C. DENIS, PETITIONER, v. SCANDANAVIAN BELTING COMPANY, RESPONDENT.
    Death of Employe — Husband of Employe Not Dependent on Earnings of Wife For Support — Judgment For Respondent.
    On claim petition. On determination and judgment.
   This matter having come on for hearing before Hon. Harry J. Goas, deputy commissioner, workmen’s compensation bureau, New Jersey department of labor, at Paterson, on October 21st, 1926, in the presence of the attornej^s of the respective parties, and the testimony of the petitioner having been heard and considered, and it appearing that Mary S. Denis was injured by accident on January 28th, 1926, and as a result thereof died; that petitioner was married to said Mary S. Denis on November 25th, 1925, and they cohabited until the time of said death; that prior and subsequent to said marriage the petitioner was working and earning a weekly wage of $24; that such amount was sufficient for the support of himself and his said wife; that petitioner and his said vafe agreed to and did purchase certain household furniture, and incurred a debt therefor amounting to approximately $500, whieh was to be paid in weekly installments; that the said Mary S. Denis entered the employ of the respondent about one. week before she died for the purpose of contributing to the amount of the weekly installments due on said household furniture; that decedent during the whole time of her employment earned $14.10; that during said employment, and at the time of said accident and death, the petitioner was not dependent on his said wife for his support or maintenance, either partially or totalty, within the meaning of the Workmen’s Compensation law; and the said deputy commissioner having heard and considered the arguments of counsel, and being of the opinion that petitioner is not entitled to compensation, and it also appearing that the respondent or its insurance carrier has paid the amount allowed by law for funeral or burial expense and expenses of last sickness, it is on this 4th day of November, 1926, ordered, that judgment be and it is' hereby entered in favor of the respondent, Scandanavian Belting Company, and against the petitioner, Americo C. Denis.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    EMMA L. PINE, PETITIONER, v. TERRY & TENCH COMPANY, RESPONDENT.
    Petitioner’s Husband Sustained an Injury to His Foot Through Burning — Later, He Died From the Effects of an Operation For Appendicitis, and it is Now Alleged That He Also Sustained Other Injuries as the Result of a Fall at the Time the Foot was Burned — Held, on Testimony Offered, That Death was Not Result of Injury Received During Employment.
    On fin clings of fact and determination and rule for judgment.
    For the petitioner, Nathan, Rdbinowilz.

    For the respondent, Carl R. Kuebler, of McDennolt, En-right, £ Carpenter.

   I have carefully considered the testimony and the briefs of the attorneys for the respective parties. T find that James E. Pine was employed by Terry & Tench Company on or about July 25th, 1926. 1 find, however, that the death of James E. Pine was not the result of any injuries sustained in any accident arising out of and in the course of his employment. I find that James E. Pine did sustain an injury on July 25th, 1925, which consisted of a burn to his right foot, but that said injury and saicl accident have w> relation whatsoever to the claim set forth in this petition and have no relation to the death of James E. Pine, nor is there any testimony in the case connecting said injury with bis death.

The petitioner attempts to show in this case that at the same time James E. Pine burned his foot by sparks from his acetylene torch, he fell over an iron girder, sharply striking his right side; that this occurred on July 25th, 1925; that on July 29th, 1925, he was taken with an attack of appendicitis; was operated upon July 30th and died August 6th, and that the attack of appendicitis was of traumatic origin and brought about by traumatism to his right side on July 25th, 1925. This, I do not believe. The petitioner’s case is based to a large extent upon the testimony of William G. Little, who was Mr. Pine’s helper. I was not impressed and do not believe the testimony of Mr. Little. If Mr. Pine was leaning over the truss as stated by Mr. Little at the time the hot metal struck his foot, he certainly could not have fallen any distance sufficient to have caused an injury to his right side. If Mr. Pine had suffered a fainting spell, as Mr. Little contends, it would have been impossible for him to remain in the position he was in or for him to have left the place where he was working, as he did. Mr. Little testified, page 143, as follows:

"A. I said ‘what happened?’ He said, ‘I hurt myself. I burned myself.’ He was holding his stomach. And he took up his shirt to see if it was burned; he took up his shirt and there was a big red spot on him. In the meantime the burn hurt him. Aiid I took him down and some of the other boys helped him.”

I cannot for one moment believe that Mr. Pine, with a fairly severe burn on his foot, which must of necessity have caused him immediate pain, would have pulled up his shirt and showed his side to Mr. Little. I was more than ever convinced that there was no injury to Mr. Pine’s side by the letter of Doctor O’Brian, which he sent to the United States Fidelity and Guaranty Company on August 20th, 1925, in which letter he has stated: “I examined it closely, and finding no external marks of violence, did not mention it in my report.”

It is true that Doctor O’Brian, himself, testified in this case that he did observe a red mark on Mr. Pine’s side on the afternoon of July 25th. I am inclined, however, and do place more reliance upon the statement in his letter of August 20th, 1925, than I do upon his testimony. His testimony was contradictory and did not impress me. There were also many discrepancies in the testimony of Mr. Little which made me still further discredit it.

I was very much impressed by the testimony of Mr. Prank M. Tench, the superintendent of Terry & Tench Company, and Mr. Charles P. Smith, the foreman. I feel certain that if Mr. Pine had sustained an injury to his right side, such as is contended by the petitioner, he would have made mention of that fact to Mr. Tench and to Mr. Smith, especially if it had been so severe as to cause him to immediately exhibit his side to Mr. Little. I thoroughly believe that Mr. Tench in his testimony gives us an accurate account of what happened on July 25th, which is corroborated by the testimony of Mr. Smith to the extent of what came to his attention or, that day. This testimony is further strengthened by the testimony of Miss Sheldon, the nurse in the office of Doctor McBride. She is an absolutely disinterested witness in this case. Mr. Pine was sent to her and his object, of course, in going was to secure treatment and alleviation of pain and suffering. If he had injured his. side, I feel certain that he would have told her and have requested some treatment for it.

In view' of all this testimony and many other phases of the case, too numerous to mention, I conclude that Mr. Pine’s death was not the result of any accident arising out of and in the course of his employment on July 25th, 1925, and that he did not sustain an injury to his right side on that date.

1 also conclude and find that Mr. Pine’s death was the result of natural causes. The testimony of Mr. Tench convinced me that Mr. Pine was not working on July.22d, 23d and 24th, the three days immediately prior to the date of the alleged injury, and that he did work Monday, Tuesday and Wednesday following July 25th, which was a Saturday. At the bottom of page 329 of the record, Doctor O’Brian testified that when the operation was performed his appendix was hound down by a great many dense adhesions and testified “it indicated that the man has had trouble there before, and it was a chronic appendix that had become acute.” He admitted that this had probably existed for some time, a month or longer, and that said adhesions were sufficient to have caused attacks prior to July 39th, 1935. At the bottom of page 333 he testified as follows:

“Q. Then, in your opinion, doctor, it is possible that when the man was out of work, July 33d, 33d and 34th, prior to the time he burned his foot, that he might have been out by reason of some trouble with his appendix?

“A. Is that possible ? I suppose it is possible.”

I also refer especially to the testimony of Doctor O’Brian on pages 335 and 336 of the record.

"Q. Now, when a man has an appendix with dense adhesions, such as are found in this case, and such as you have testified to to-day, it is possible and probable is it not that his appendix would light up at any minute?

“A. With some reason it would. If he had any just cause for it.

“Q. Well, the reason that an appendix lights up is because of an increased inflammation, isn’t it?

“A. Yes, sir.

“Q. And in every case of appendicitis, the reason that the appendix lights up is because of an increased inflammation, isn’t it?

“A. Yes, sir.

“Q. Then in this case where this appendix did light up on the 39th of July, it was because of increased inflammation?

“A. Yes, sir.

“Q. All abscesses surrounding the appendix are brought about, axe they not, by internal inflammation?

"A. Yes, sir.

“Q. They originate from a germ, do they not?

“A. Yes, sir.

“Q. And independent of any history of traumatism, is it not probable that an appendix, in a condition which you have described this appendix to have been in when you operated, would have lit up at any minute upon increased inflammation from within?

“A. Probable or possible.

“Q. Probable.

“A. It might; yes.”

It is very probable that Mr. Pine’s absence from work just prior to July 25th w<as due to the condition of his appendix, and I find from the testimony of Doctor O’Brian that his appendix was in such condition that an acute attack was to be expected at any moment. The testimony of Doctor Arlitz and Doctor Einke supports this finding. I feel that the attack on July 29th, happening so close to the date of the accident to Mr. Pine’s foot, was a mere coincidence and had no relation to any accident he sustained on that date.

While there are other reasons for my conclusions, I believe the above are the most important and sufficient to show the grounds for arriving at my opinion.

In view of the fact that Mr. Pine’s death, in my opinion, was not due to any injury sustained from an accident arising out of and in the course of his employment with this respondent, it will be unnecessary for me to consider the other phases of the medical testimony brought out at the hearings or for me to determine the question of dependency or the deceased’s salary.

% sjí % i'fi ifc ^ i|«

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM HAYNES, PETITIONER, v. ESSEX FOUNDRY, RESPONDENT.
    Injury to Leg of Employe — Treatment and Apparent Recovery— Employment in Another Place and Another Injury to Leg— Held, That First Injury was Not the Cause of the Permanent Injury Suffered.
    On determination of facts and findings.

      Eor the petitioner, Charles Becker.

    Eor the respondent, Harry E. Walburg.

   * Hs H« ❖

2. It was admitted by the parties .that the petitioner had been paid $241.90 temporary compensation for eighteen and one-seventh weeks, at the rate of $13.33-¿- a week, and that the petition had been paid-$333.33'J- as permanent compensation, based on twenty per cent, loss of use of the right foot.

3. The petitioner testified that he was injured on March 5tli, 1925, which accident arose out of and in the course of his employment. It appeared that he was struck with a large piece of coal on his right leg, and was treated the following day by Dr. Eobinson. He received several treatments at the office of Dr. Eobinson, and then was sent to St. James' Hospital and was placed under the care of Dr. Mishell. At the St. James' Hospital his right leg was operated upon and pieces of bone removed, and he remained in the St. James' Hospital for six weeks. After leaving the St. James' Hospital he was again treated by Dr. Eobinson until some time in June. After leaving the treatment of Dr. Eobinson, the leg opened up and a piece of bone came out, and he was treated by Dr. Shapiro on a few occasions. After leaving the treatment of Dr. Eobinson he was able to get about on crutches. Some time in August, 1925, he went to work for a Mr. Brucker, in Englewood, New Jersey, a landscape gardener. He worked for him three or four days, and on or about August 27th, 1925, a pile of dirt and manure, with which he was working, caved in on his right leg, covering it up to the knee. He was unable to extricate himself, and two fellow-employes removed several large pieces of frozen dirt from his leg, and he was then able to get his leg free. He was taken home in an automobile and placed in bed. The following day, August 28th, 1925, he was removed to the Englewood hospital, where he remained about six weeks. While in the Englewood hospital his leg was put in a cast, and he remained several weeks in bed, and then in a wheel chair. After he left the Englewood hospital he returned to work for Mr. Brucker as a pump man, and worked for him at irregular intervals until March, 1926. He was treated by Dr. Shapiro again in February, 1926.

4. Dr. Shapiro was called as a witness for the petitioner*, and he testified that he examined the petitioner in July, 1925, and at that time he found that the wound in the petitioner’s right leg was open, and a condition of osteomyelitis. He treated the petitioner on three occasions, and then discharged him as cured. He did not know what the condition of the petitioner’s leg was in August, 1925. He treated the petitioner again on February 8th, 1926, and he produced an X-ray which was taken on February 9th, 1926, and which showed that the petitioner had sustained a fracture of the right tibia, middle third. In his opinion, the petitioner’s permanent disability at the present time is forty-five per cent, of the right leg.

5. Dr. Cahill was called as a witness for the petitioner, and he testified that he examined the petitioner on September 2!)th, 1926, and that, in his opinion, the petitioner at the present time has a permanent disability of the right leg of forty-five to fifty per cent.

6. At the close of the petitioner’s case the attorney for the respondent moved to dismiss the claim petition on the ground that the petitioner had failed to prove that the permanent injury which he now has was caused through the accident he sustained while in the employ of the Essex Foundry, the respondent.

It appearing that the petitioner having failed to prove that the permanent injury from -which he suffers was caused through the accident which he sustained while employed by the respondent on March 5th, 1925, and it appearing that the attorney for the petitioner consents to a dismissal of the petition, it is on this 1st day of October, 1926, ordered that the claim petition herein be and the same hereby is dismissed.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANGELINE BERRY, PETITIONER, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, RESPONDENT.
    Accident to Railroad Employe Occurring While the Engine was Standing Without Cars at a Water Plug to Take Water— Question of Employment Being Interstate or Intrastate Commerce Considered at Length and Held That the Actual Employment Here was in Intrastate Commerce.
    On petition for compensation.
   This is- an action for compensation claimed by the petitioner, Angeline Berry, the widow of Austin Berry, deceased, for the death of the said Austin Berry as a result of an accident which lie sustained while in the respondent’s employ on September 24th, 1923. By a stipulation entered into at the hearing, liability on the part of the respondent was admitted on all points except as to the question of interstate commerce, so that the only question left for me to determine is as to whether or not the decedent was engaged in intrastate commerce at the time of his accident.

Mr. Berry was employed by the railroad company in the capacity of fireman on a drill engine in its yard at Phillips-burg, New Jersey. At the time that the -accident happened, the drill engine had no cars attached to it and was not engaged in moving any cars at that time, but had come to the water plug to take water, -and the accident occurred while the engine was stopped at the ivater plug for this purpose. While the engine stood there, the decedent, while he was engaged in his duties, fell from his engine, and up to the time of the accident no water had been taken by the engine.

It has been well settled for a long time that in a ease of this kind the test is as to whether the character of the Avork which was being done at the very time of the accident Avas interstate or intrastate. It makes no difference what the employe had been doing even a few minutes before, and likewise it is of no consequence what he intended or expected to do in the future. The test is as to what he was doing at the very lime of the accident. This rule is laid down in the leading case of Behrens v. Illinois Central Railroad Co., 233 U. S. 473. The same principle was set forth in the more recent case of Winters v. Minneapolis and St. Louis Railway Co., 242 Id. 353, and in many other cases.

It is undisputed that there were no cars attached to> the engine at the time and that it was not engaged in any movement of any cars of any kind, but had merely come to the water plug to get water. The occurrence of the accident under these circumstances when the engine was standing still and was not engaged in the movement of any cars at all, necessarily leads to the conclusion that the decedent was engaged in intrastate commerce at the time of the accident.

Counsel for the respondent relies mainly on two decisions, one of them the case of Szary v. Erie Railroad Co., 253 U. S. 86. In this ease the employe was engaged in drying sand which was used on both interstate and intrastate locomotives, and at the time he was injured was returning from emptying ashes used for this purpose. Since it was not practicable to divide up the sand into different lots, some of which went into intrastate engines and the other into interstate engines, and since he was undoubtedly drying several lots all at the same time, and since he was necessarily in part, at least, drying sand for interstate locomotives, his work was necessarily held to be of an interstate character, because the rule is that if the employe is engaged simultaneously in doing work of an interstate and intrastate character, he is held to be engaged in interstate commerce. But in the case at bar, the engine was not engaged in any work at the time, and, therefore, at the time of the accident, the employment of the decedent was of an intrastate character, exactly as it was in the Winters case above referred to.

The other case relied on by the respondent is that of North Carolina Railroad Co. v. Zachary, 232 U. S. 248, but the facts there are quite different from the instant case, for there the engine was assigned to go out on a definite trip for the purpose of hauling definite cars in interstate traffic, and the work had been done on the engine for that very trip and for that very purpose. In the case at bar, on the contrary, the engine was a mere drill engine and no specific trip had been assigned to it, or, so far as that goes, any other particular work, and no definite cars had been assigned to be hauled by it as far as the evidence shows. The Zachary case therefore clearly did not belong in the class of cases of the Winters case and the case at bar.

After careful consideration, I have come to the conclusion that the case at bar does not fall in the class of cases represented either by the Szary case or the Zachary case, but rather belongs in that class of cases of which the Winters case, above referred to, is typical, namely, where the employe at the time of his injury is engaged in his duties on an engine, which, at the time of the accident, is not engaged in any definite work of an interstate character. In these cases it is well settled by the United States Supreme Court and our state courts that the employe is engaged in intrastate commerce. Such a case is that of Welsh v. Erie Railroad Co., 242 U. S. 303. The facts in this case are well set forth in the opinion from which I quote (at p. 305) :

“As to this question, there was testimony tending to show that defendant was a common carrier by rail engaged in commerce between the states, and that plaintiff was, and for some time had been, a yard conductor engaged in night duty at its Brier Hill yard, a mile or more west of Youngstown; that he performed miscellaneous services in the way of shifting cars and breaking up and making up trains, under orders of the yardmaster, and had to apply frequently to the latter for such orders; that when any orders thus given had been performed, or had run out,’ he usually reported at the yardmaster’s office for further orders; that on the night in question plaintiff, with a yard crew, took a freight car loaded with merchandise destined to a point without the state, and a caboose which, so far as appears, was not to go beyond the limits of the state, from the Brier Hill yard eastwardly to the E. D. yard’, in Youngstown, where the freight car was placed upon a siding, so that it might be made up into a train by another crew; that they then took the caboose a short distance farther and placed it upon another siding; that they next took the engine to a water plug and took on water, and then returned with it to the Brier Hill yard; that on this return journey the engine was slowed down near the yardmaster’s office, which is at the easterly end of that yard, so as to enable Welsh to report for further orders, all previous orders having been executed, and that the injury was received while he was attempting to alight for that purpose.

“It ivas in evidence, also, that the orders plaintiff would have received had he not been injured on his way to the yardmaster’s office would have required him immediately to make up an interstate train. Upon, the strength of this it is argued that his act at the moment of his injury partook of the nature of the work that, but for the accidental interruption, he would have been called upon to perform. In our opinion, this view is untenable. By the terms of the Employers’ Liability act the true test is the nature of the work being done at the time of the injury, and. the mere expectation that plaintiff would presently be called upon to perform a task in interstate comrnerce is not sufficient to bring the case within the act.”

See, also, Illinois Railroad Co. v. Peery, 242 U. S. 292; Chicago, B. & R. Co. v. Harrington, 241 Id. 177; Lehigh Valley Railroad Co. v. Barlow, 244 Id. 183.

This view has been followed by our court in a recent ease that is strikingly similar to the case at bar, which, In my opinion, is dispositive of the instant case. This is the case of Bissett v. Lehigh Valley Railroad Co., 4 N. J. Adv. R. 519. In that case the engine, which was a drill engine, developed pump trouble and was placed upon one of the yard tracks for the purpose of having Bissett make repairs to the pump. While engaged in this work, he fell from the engine and was injured. After the accident his helper finished the work, and the engine was then placed back in service. The repairs made by Bissett’s helper were only temporary. The court held, at page 523, as follows:

“In the present case the Essex County Court of Common Pleas found as a fact That at the time of the accident Burt Bissett whs engaged in the repair of an engine wholly separated from any cars not engaged in any commerce, but withdrawn therefrom for repairs. That the engine was not interrupted in any interstate haul.’ In other words, he was not engaged in interstate commerce at the 'time of the accident.

“We think there is evidence in the case which supports this finding. When the pump trouble developed and the engine could not be used without repairs, it was detached from all cars and was taken to track No. 1. It certainly was not then engaged in interstate commerce. It was idle and disabled. It had been withdrawn from the use to ivhich it had been put. It had to be repaired before it could be used again. It was so repaired. During the making of these repairs Bissett was injured.”

See, also, Moran v. Central Railroad Co., 88 N. J. L. 730; Hanson v. New York Central Railroad Co., 91 Id. 197; Lawrie v. Atlantic City Railroad Co., 3 N. J. Mis. R. 267.

In the light of these decisions, particularly of that in the Bissett ease, I think that it is clear that Mr. Berry was engaged in intrastate commerce at the time of his accident, and that therefore his widow is entitled to compensation.

Charles E. Corbin, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GUSSIE FREDMAN, PETITIONER, v. SAMUEL SAFIER AND ABE FELDMAN, TRADING AS “UNION PAPER CO.,” RESPONDENT.
    Death of Employe Caused by an Automobile Collision — Employe was In an Automobile Supplied by Employer to Take Employe to and From His Employment — Held, Accident Occurred During Course of Employment.
    On petition for compensation. On finding of facts, determination and judgment.
    For the petitioner, Morris Q. Fredman.

    For the respondents, Charles F. Broadhursl.

   On June 1st, 1926, at about seven fortv-hve A. M., decedent, Abraham Fredman, an employe of the Union Paper Company, was killed when an automobile, owned by respondent, ''and of which he was an occupant, was in collision with another automobile, near the railroad station at Little Silver, Monmouth county, New Jersey. The automobile in question was driven by Harry G. Fredman, a son of decedent, and also an employe of respondent.

At the hearing for compensation, the testimony disclosed that decedent had been an employe of respondent for a period of approximately six years, prior to the date of his death, in the capacity of inside manager, at a salary of $50 per week.

On the day of his death and for several years prior thereto, decedent resided in Long Branch, New Jersey, with his wife, Gussie Fredman, the petitioner herein, and his son, Harry G. Fredman, nineteen years of age, who was also an employe of respondent.

It appears from the testimony that about four years prior to the date of the collision, respondent, whose place of business was in Eed Bank, New Jersey, had instructed decedent to be present at its place of business at eight o’clock each morning, had given decedent the keys to open place of business and had required decedent’s presence and the presence of other employes at eight o’clock each morning, and in order to insure the presence of decedent and other employes at its place of business at that time., 'had placed an automobile in decedent’s charge, so that he, his son, Harry G. Eredman, and Minnie Kamrass, a bookkeeper, could facilitate traveling back and forth from respondent’s place of business, in order to arrive at the designated time.

It appears from the testimony that the automobile used by decedent and the other employes of said respondent was owned by respondent, who also furnished gas, oil, accessories and other necessary adjuncts in connection -with the use of same.

The testimony as to instructions and uses of the automobile in question and the purposes for which same was used, was corroborated by Harry G. Eredman and Minnie Kamrass, both employes of respondent.

On the date that decedent met his death, the car was driven by Harry G. Eredman, and contained, in addition to decedent and his son, the said Minnie Kamrass, also an employe, and one other person, who had received a lift on his way to Eed Bank.

The testimony also disclosed that at the time of accident and death of decedent, that he was on his way to work.

Decedent left him surviving his widow, who was dependent on him at the time of said accident and death, which arose out of and in the course of employment, also a son, Harry G. Eredman, age nineteen years.

opraioisr.

Decedent was an employe of the respondent for approximately six years prior to his death on June 1st, 1926, and

for a period of approximately four years before the date of his death had been going back and forth from his home in Long Branch to the place of business of respondent in Red Bank, New Jersey, in an automobile provided by respondent, the use of which automobile was approved and sanctioned by respondent, whose acts, such as furnishing gasoline, oil, repairs and other accessories, indicate that it knew and intended that said automobile should be used by decedent in going back and forth from his work.

It also appears that the use of this automobile was an advantage to respondent, because it permitted the decedent and two other employes residing in Long Branch to arrive at its place of business at eight o’clock each morning, so that the place of business could be opened at that time, and the affairs of said respondent commenced then.

It is quite apparent from the testimony that the benefits derived by respondent were more than sufficient to offset the cost and expense of maintaining the automobile for the use to which same was put.

In Depue et al. v. George D. Salmon Co., 106 Atl. Rep. 379, it appears that there was an arrangement between employer and employe, whereby the employe was entitled to use the automobile of employer to take him to his home at night and from his home to business in the morning, and the object was to e.nable him to roach his place of employment at an earlier hour than he could otherwise. It was held in this case that the employer was liable for the acts of the employe during the time that the employe was going to and from his place of business.

In Cicalese v. Lehigh Valley Railroad Co., 75 N. J. L. 897; 69 Atl. Rep. 166, the presiding judge has therein held:

“The relation of master and servant continues during the carriage of the servant to and from his work, when done by the master, or with his consent, where from the character of Che service such transportation is beneficial both to the master and servant.” Soden v. Public Service Transportation Co., 134 Id. 560.

In Fisher v. Tidewater Building Co., 114 Atl. Rep. 150, the plaintiff, an employe of the defendant company, was killed while on his way home after quitting work and while boarding a train provided by his employer. Judge Black, who wrote the opinion, held that:

“Where a workman is employed to work at a certain place, and that as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of service continues during the time of transportation, and if an injury occurs during the course of transportation, it is held to have arisen out of and in the course of employment.”

This rule has been the support of English and American cases.

Following the line of reasoning in the aforementioned cases, I am of the opinion that the petitioner shall be entitled to receive compensation in accordance with the prayer of the petition.

:fí :.k >1: sjj

W. E. Stubbs, Deputy Commissioner.


author: Backes, V. C.

text:
    The Charles Market, complainant, v. Jacob Heinochowitz, defendant.
    [Decided April 25th, 1927.]
    Adverse Possession — Right to Use Common Driveway — injunction Pendente Lite — Driveway Not Shown to Have Been Held Adversely For Twenty Years — No Charge of Inequitable Conduct — Held, That Since There is No Legal Right to be Protected and No Equitable Claim to be Enforced, Injunction Must be Denied.
    On order to show cause; for injunction pendente lite.

      Messrs. Borg, Duncan & Bailey, for the complainant.

      Messrs. Koehler & Augenblick, for the defendant.
   Backes, V. C.

The complainant and defendant are owners of adjoining store properties on Morris avenue, Springfield. A driveway leading to the complainant’s garages in the rear of its lot separates the two store buildings and is partly over the lands of each of the parties. The defendant is about to extend his store building over that part of the driveway which lies on his land; which will destroy its use for automobiles, and the bill is filed to restrain him. If a restraint should issue it would only go to protect the asserted right to the driveway pending a determination of the question at law. Equity has not jurisdiction to try the title. Mason v. Ross, 77 N. J. Eq. 527.

The complainant’s claim to the use of the driveway is based on an alleged twenty years’ adverse user. The allegations of the bill do not bear out the claim. One Elemer was the common owner in 1905. It is alleged that he constructed the driveway at that time. He conveyed the complainant’s property in 1911, and through intermediate conveyances the complainant acquired ownership in 1925. Elemer conveyed the defendant’s property in 1918 and the defendant became the owner in 1925. No mention of the use of the driveway is made in any of the title deeds. The various owners during their respective ownership used the driveway in common. If adverse user were proved it could not be shown to have existed prior to 1911, when Elemer parted with the complainant’s property. Elemer constructed the driveway for his own convenience, and, of course, there was no adverse user during his ownership.

There is nothing in the bill charging inequitable conduct by the defendant to estop him from the use to which he now intends to put the driveway. The complainant alleges that it “would not have purchased * * * if it had not been informed that the said driveway was not [?] appurtenant to the said premises of the complainant and subject to its use, as all previous owners had used the same,” but it does not charge that it was misled by the defendant. It is implied from this allegation that the complainant knew the driveway was partly on the neighbor’s land and not within its grant, and from other allegations it appears that it relied on neighborhood gossip for its title to the use. Equity cannot even sympathize with such blind confidence, much less raise an equity upon it. The bill shows neither a legal right to be protected nor an equitable claim to be enforced, and the motion for an injunction is denied.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    WALTER F. ACKERMAN, PETITIONER, v. JACK HAYES, TRADING AS LIBRARY LUNCH, RESPONDENT.
    Injury to Employe of Lunch Wagon Caused From a Fall and Resulting in Broken Ribs — There was Both Permanent and Temporary Disability.
    On determination and finding of facts and rule for judgment.
   * >!« ❖ ❖ i'fi ❖ *

1. Thai on November 6th, 1925, the petitioner was employed by the respondent at a weekly wage of $36, as a short-order cook, in and about his business of maintaining and operating a lunch wagon, and while so engaged in the course of his employment, and while carrying supplies from the storehouse adjacent thereto, petitioner fell and sustained injuries to his ribs and arm; that the respondent had knowledge of the occurrence thereof.

2. It appears from the testimony that the petitioner was treated by Dr. Ellis for injuries to the ribs and arm shortly after the accident, and strapped him about the chest on Sunday, November 8th, 1925. The physician at that time found the petitioner in terrific pain and treated him for broken ribs. The physician continued treating him for some time and approximately on November 20th, 1925, the petitioner still suffering from the injury sustained, and without funds or means of subsistence, applied to the respondent for employment, and that they did place him as watchman and short-order cook at one of their places of business at Clifton, New Jersey.

3. Then, due to the condition of the petitioner and to the quarrels between the petitioner and the respondent, the petitioner left his employ and was very irregularly employed from that time to the present day. I find as a matter of fact that from all the testimony and from the injuries sustained by the petitioner as hereinafter set forth that the petitioner sustained temporary disability to the extent of ten weeks from the date of said accident.

4. From the testimony of all the physicians shows that the petitioner sustained pain and that he sustained injuries to his ribs. Dr. Bassin testifies of complete fractures of the ninth and tenth ribs, and incomplete fractures of the seventh and eighth ribs. Dr. Markins, on behalf of the respondent, testifies to the irregularity of the seventh, eighth, ninth and tenth ribs on the left side.

5. From all the testimony and from all the X-rays, I find as a matter of fact that the petitioner sustained a fracture of the ninth and tenth ribs, with an incomplete fracture of the seventh and eighth ribs, together with the resulting pleurisy, and I, therefore, find that the petitioner sustained total permanent disability of ten per cent, of the usefulness of his body for which the said petitioner is entitled to receive compensation for a period of fifty weeks at the rate of $17 per week.

$ $ H? $ H* $

Harry J. Goas, Deputy Commissioner.


author: Donges, J.

text:
    CARL B. WATSON ET AL., PLAINTIFFS, v. WALENTA PACIA, DEFENDANT.
    Decided April 7, 1927.
    Account — Reference to and Report by Referee — Defendant Reserved Right to a Jury Trial — Upon Motion to Confirm, Defendant Again Objected and Demanded a Trial by Jury— Held, That He Had Substantially Complied With Statute— Statute Does Not Impose Upon Defendant the Duty to Notice Case For Trial or Bring on Hearing.
    For the plaintiffs, James J. McGoogan.

    For the defendant, Harvey Knight.

   Donges, J.

The meritorious question to be determined is whether plaintiff is entitled to have the report of the referee, to whom this cause was referred to settle matters of account, &e., confirmed, or whether defendant is entitled to have a jury trial.

It is stipulated that defendant, at the time the reference was made, November 25th, 1925, excepted to the reference and reserved the right to a jury trial. The referee filed his report on'April 21st, 1926. Plaintiff, on April 29th, 1926, still in the same term, moved before Mr. Justice Trenchard for confirmation of the report. Defendant then and there objected and demanded a trial by jury. On April 30th, 1926, a written demand was made by defendant, and on May 7th, 1926, within twenty days after the filing of the report, and still within the January term, exceptions were filed. The case has been duly noticed for trial.

Subsequent^, a motion was made to me to confirm the report and to deny defendant a trial by jury because it is claimed he has not perfected his right to a jury trial.

I am of opinion that there has been a substantial compliance with the statute, and that defendant is entitled to a trial by jury of the matters in issue as raised by the pleadings and his exceptions. Where a party reserves that right and perfects it by filing his exceptions within time he is not to be denied a jury trial. In that case, the effect of the reference is to put the burden on defendant to overthrow the report and to limit the issues to those findings to which exception is specifically entered. Enstice Brothers v. Pitman, 95 N. J. L. 291.

The statute does not impose the duty on defendant to notice the case and bring it on for hearing. It merely provides that, when he complies with its requirements, the case shall be tried by a jury. I take it that the moving party must bring his case on as he otherwise would. The only difference, as above stated, is to make the report evidential, and, perhaps, to limit the proofs.

The motion to confirm is denied.


text:
    Mercer County Circuit Court.
    CHARLES P. HART, PLAINTIFF, v. DENNIS S. BRUSNAHAN AND FRED BRUSNAHAN, DEFENDANTS.
    Decided April 7, 1927.
    Negligence — Motor Vehicle Accident — Agency—Responsibility of Father, the Owner, For Acts of Son, the Driver — In Instant Case the Question was Held to be One For the Jury— Where Doubt is Thrown Upon the Owner’s Denial of Agency a Jury Question is Raised.
    For the plaintiff, James S. Turp.

    For the defendants, Marlin P. Devlin.

   Donges, J.

Plaintiff recovered a verdict against both defendants. A rule was allowed defendant Dennis S. Brusnahan, who seeks a new trial.

Dennis S. Brusnahan, father of Fred Brusnahan, was the owner of the automobile, which was being driven by Fred Brusnahan when the collision with plaintiff’s automobile occurred.

The real question is as to whether the defendant Dennis S. Brusnahan had succeeded in so overthrowing the presumption of agency arising from ownership as to require a verdict in his favor.

The car was bought for family use, and was driven by defendant’s sons. On this night the son, Fred Brusnahan, had permission to use the car (page 11). It further appeared he was driving towards Burlington, where his sister, a member of the father’s household, was at the time, and that he intended to bring her home (page 18). Under authority of Tischler v. Steinholtz, 99 N. J. L. 149, and cases therein cited, I am of opinion that the situation exhibited by the proofs presented a jury question as to whether or not the presumption of agency had, in fact, been fully overthrown. If the son was going for' his sister, a member of the household, with the father’s knowledge and in pursuance of his purposes in buying and using the car, then the father would he liable. Missell v. Hayes, 86 Id. 348. Where such doubt is thrown upon the truth of the owner’s denial of agency, as to leave the mind in doubt, a jury question is raised. Crowell v. Padolsky, 98 Id. 552. And this rule is based upon sound considerations, as, otherwise, a mere denial must conclude the court, and, inasmuch as a plaintiff is not in possession of the evidence to contradict the statement, injustice would necessarily follow. Where such doubt is manifest that a court cannot say there is no question of the truth of the defendant’s testimony on that point, the jury should be permitted to decide. And where there is a mere contradiction, so shaken as to raise doubt, the verdict ought not to be disturbed.

This conclusion renders it unnecessary to discuss the other grounds urged, all of which are based upon the assumption that Dennis S. Brusnahan should not be held liable.

The rule to show cause is discharged.


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    Camden County Circuit Court.
    ALBERT PEPIAK, PLAINTIFF, v. JOSEPH HALBERT ET AL., DEFENDANTS.
    Decided April 8, 1927.
    Mechanics’ Lien — Several Claims Reduced to Judgment — One Claim Not so Reduced — Property Sold, and, Upon Consent, a Specified Sum was Held by Clerk on Account of Said Claim — Claimant Asserts That Since Lien Has Been on File More Than Three Months and No Caveat Filed Against it Prior to Application, Claim is Now Unassailable — Other Claimants Deny This and Have Since Filed Caveats — Held, That Statute Does Not Require That Caveats Shall be Filed Within Three Months, Simply That Claims Shall Not be Paid Until They Have Been on File Three Months; Any Claimant May Question the Justness of Any Other Claim, and May Contest Any Time Before Fund is Distributed.
    For the plaintiff and others, Joseph Bede Tyler.

    Eor Concrete Specialties Company, Charles A. Cogan.

    For Elwood Antrim, Clifford A. Baldwin.

    For A. H. Knoettner & Sons, Sydney T. Smith.

   Donges, J.

On September 10th, 1926, an order was made for the distribution of the fund created by the sale of the premises affected to the several mechanics’ lien claimants who had reduced their claims to judgment, and providing that a sum he retained to cover another claim not yet reduced to judgment. It was made to appear that A. II. Knoettner & Sons had filed a lien-claim and that no provision was made for the payment of any sum that might he due to said claimants. An order was thereupon made, by consent of all parties in interest, that the sum of $1,724 he held by the clerk to pay any amount that may become clue to said Knoettners.

.In. this situation, Knoettners now move for an order requiring the clerk of this court to pay over this sum to Knoettners, on the ground that the lien-claim being in all respects regular, and having been on file three months, and no caveat having been filed prior to the application, the claim is unassailable and the money due. At the same time, several of the other lien claimants, representing more than half of the amount due, ask leave to appear and litigate Knoettners’ claim. Caveats have since been filed against the allowance of Knoettners’ claim by Elwood Antrim, Concrete Specialties Company and Albert Pepiak.

I am of opinion that a proper interpretation of section 29 of the Mechanics’ Lien act (Comp. Stat., p. 3311) affords each and every person entitled to share in the fund the right to contest the justness of the demand of any other claimant, before judgment is entered on it. It provides that the Circuit Court “shall have full power” * * * “to make all orders necessary and proper to carry into effect the objects of this act, and to secure a proper disposition of the proceeds of sales to all persons entitled thereto by the provisions of this act.”

The Knoettner claim was never reduced to judgment, so that the correctness of the demand is not established. It would be unjust to say that persons whose claims will be affected by the payment to Knoettners should not be afforded an opportunity to contest such claim because a caveat was not filed within three months. The statute does not require, in express terms, that it shall be filed within three months of the filing of the lien-claim. It provides that a claim shall not be paid until it shall have been on file three months. In view of the clear direction to the court to see to the proper disposition of the fund, I conclude that objection majr be made at any time before the fund is distributed. Caveats having been filed by the required amount in interest against the claim of Knoettner & Sons, the claimants will be required to establish their claim, as provided by statute. Section 29, supra. The other lien claimants will be permitted to intervene, file answers and contest the claim of A. H. Knoettner & Sons.

Lester A. Drenk, trustee, the purchaser of the premises at the sale under the execution issued in this ease, applied to be allowed to contest the Knoettners’ claim. Inasmuch as the sale discharged the lien, it is not apparent how Drenk can have any interest in the disposition of the fund. The application of -Drenk to be admitted to defend is denied.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RAFAELLA PACELLI, PETITIONER, v. JANOWITZ BROS., RESPONDENTS.
    Employe’s Death Probably the Result of Fall Down Stairs During the Employment' — Precedents Examined — Judgment for Plaintiff.
    On findings of fact and determination and rule for judgment.
    Eor the petitioner, Sidney Alexander.

    Por the respondents, Carl Kuebler.

   tji *;< #

I find that on August 2d, 1925, Angelo Pacelli was employed by the respondents, Janowitz Bros., as night watchman in their factory in the city of Paterson; that on that day he was injured by accident arising out of and in the course of his employment with the respondents, and that he died on the same day of these injuries, of all of which the respondents had actual knowledge.

The decedent was found dead at the foot of a staircase in the factory of the respondents, with his body in such a position that it convinced me that he had fallen down the stairs. I find that death was due. to an accident arising out of and in the course of decedent’s employment. I am guided in this finding partly by the following cases submitted by the petitioner: Steers v. Dunnewald, 85 N. J. L. 449, in which the court held that if an employe is found dead and there is no evidence as to how he met his death, the court will presume that it was by accident; Manziano v. Public Service Gas Co., 92 Id. 322, where the court held that there was a justifiable. inference of death by accident arising out of and in the course of his employment; Musik v. Erie Railroad Co., 85 Id. 139, in which the inference arose that the injury was produced by an accident; De Fazio’s Estate v. Goldschmidt Detinning Co., 88 Atl. Rep. 705; affirmed in 95 Atl. Rep. 549, which held that ’a prima facie ease of accident had been made out, holding further that the law does not require that the fact of the accident should be established by direct evidence, but that it may be established by circumstantial evidence of such a character as would justify the inference that the injury or death was due to accident; and also by the case of Bryant v. Fissel, 34 Id. 73, which held that it is sufficient if petitioner produces evidence from which an inference may be legitimately drawn that the death of the employe was caused by accident arising out of and in the course of his employment.

$ $ $ $c $ $ $

Harry J. Goas, Deputy Commissioner.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALTER GEBHARDT, PETITIONER, v. RALPH H. MEKEEL AND JOHN CHRISTIE, PARTNERS, TRADING AS CHRISTIE & MEKEEL, RESPONDENTS.
    Injury to Employe Who was Thrown From a Motor Truck Upon Which He was Riding, Employe Having Been Sent by Employer to Another Job and Requested to Make the Distance the Best They Could, Had Accepted the Offer of the Truck Driver to Give Him a “Lift.”
    On petition for compensation. On determination of facts and rule for judgment.

      For the petitioner, John V. Laddey.

    For the respondents, Raymond Dawson and Emile Neblo.

   ❖ ❖ ;-c i'/. * #

4. On March 31st, 1926, respondents produced their witnesses and i-n their argument raised a point of law, which I decided to rule upon before hearing additional witnesses on behalf of the petitioner. Upon briefs having been filed by the attorneys representing tire respective parties, I decided the said question of law in favor of the petitioner on June 2d, 1926, and gave leave to the petitioner to introduce his remaining testimony upon a day agreed upon between the parties.

5. On September 22d, 1926, this matter came on for further hearing, at which time the petitioner produced additional evidence in the presence of the attorneys for the respective parties, whereupon I declared the case closed and made the following findings:

(а) That the petitioner, Walter Gebhardt, was employed by the respondents on April 20th, 1925, and continued in that employ until May 9th, 1925, on which day he sustained an accident arising out of and in the course of his employment with the said respondents.

(б) That he was employed at Netcong, New Jersey, the place of petitioner’s resident, to dig cellar foundations with pick and shovel a River Styx, six miles away.

(c) That he was employed to report at seven-thirty a. ar. daily at the respondents’ garage at Netcong, from where he was taken with other fellow-workmen by Ralph Mekeel, one of the respondents, in an automobile to' River Styx, the place of work, six miles away, the contract of employment including the carrying of the petitioner to and from his work.

(d) That he was also brought back to the said garage every day by five p. ar.; that he began to work when they arrived there and only stopped work when his employer announced that he was ready to take them back to Netcong.

(e) That on May 9th, 1925, petitioner reported for work at the said garage at seven-thirty a. m. and was taken with two other fellow-employes by the said Ealph Mekeel in an automobile for only about half the distance to the place where they were to dig cellar foundations that day; that said Ealph Mekeel told petitioner and the said other two fellow-employes that he had to take some other gang from Netcong to Hackettstown and requested them to make the rest of the distance to the place of work the best they could.

(/) That while petitioner and the said other two fellow-employes were complying with these instructions and had gone afoot only a short distance toward their place of work they accepted an offer of a lift by a passing auto truck, which, after it had gone only a short distance, struck a rock or a rut, which jarred open the door of the truck, which in turn struck the petitioner, causing him to fall off the truck to the ground, whereupon one of the wheels of the said truck ran over his left foot, crushing his said foot; that one of the said fellow-employes stayed with him by the side of the road until one Frank Ball, driving in a Ford touring automobile in the direction of Eiver Styx, stopped and offered to take petitioner home, for which purpose the said Frank Ball turned around and conveyed him and the said fellow-employe back to Netcong; that at the request of petitioner’s mother the said Mr. Ball left a call with Dr. Nelden, who visited the petitioner and treated him from that day to the latter part of July, 1925.

(g) That the petitioner, even assuming it to be a fact, which I do not credit, that he had been requested by the employer to get a free ride to the place of employer’s operation, on two automobiles which the employer suggested, did not violate orders when he accepted a ride from the first truck that came along on his way to employer’s place of operation, when his doing so was for the master’s benefit, and by doing so he furthered his employer’s interest and pushed on his work by getting to the job at an earlier time than would have been the case had he waited by the roadside for one of two conveyances suggested by the employer, one of which had already passed the point where the employer had deposited petitioner, in view of the fact that petitioner had not been forbidden to get a ride on any other truck nor on any other particular truck nor on any particular style of truck, and that petitioner’s act did not have the effect of taking petitioner out of the course of his employment nor of depriving petitioner to his right to compensation, for the reason that he did what he was expected to do and where it was expected to bé done, and that said accident, therefore, constituted an accident arising out of and in the course of petitioner’s employment.

6. That the petitioner sustained a crushing of his left foot and the fracture of the first, fourth and fifth toes of his left foot, and that he suffered a temporary disability until October 1st, 1925, and that he is still lame and suffers considerable pain and walks on outside edge of foot and cannot place his toes on the ground, and that he has -suffered, as a result of these injuries, a permanent and partial disability to the extent of twenty per cent, of loss of use of said left foot.

Hi jfc H« ❖ ❖ ❖ Hi

Harry J. Goas, Deputy Commissioner.


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    FRANK D. FERRETTI, PROSECUTOR, v. CITY OF ATLANTIC CITY AND ATLANTIC CITY RAILROAD COMPANY, RESPONDENTS.
    Decided May 3, 1927.
    Municipalities — Ordinances—Home Rule Act Supplants Provisions of Walsh Act When There is Conflict — Home Rule Act Lays Down Completely the Method of Adoption of All Ordinances — No Indefiniteness Found in Proposed Plan— Alleged Encroachments are Platforms of Railroad Company to be Used in Lieu of Sidewalks — Other Grounds Considered and Writ of Certiorari Denied.
    On application for certiorari.

    Before Justice Campbell.
    Eor the prosecutor, Cole & Cole.

    Eor Atlantic City, Joseph B. Pershie.

    Eor the Atlantic City Bailroad Company, Edward L. Katzenbach.

   Per Curiam.

This is an application for a writ of certiorari to review an ordinance-agreement between Atlantic City and the Atlantic City Eailroad Company, known as ordinance No. 14.

Eight reasons are urged why the writ should be allowed, but my consideration of them brings me to the conclusion that they do not present debatable questions calling for the exercise of my discretion in favor of the allowance of the writ.

The power to contract in the manner provided by the ordinance is unquestionably given by Pamph. L. 1935, p. 377.

The first ground of attack is that the ordinance was not adopted in compliance with section 6 of the Walsh act. Amendment of 1912, Pamph. L. 1912, p. 643. The complete answer to this is that the Home Rule act, of 1917, page 319, presents a comprehensive procedure for the adoption of ordinances in all municipalities, and where that situation exists this court has held that the provisions of that act supplant and override the provisions of the Walsh act. Public Service Railway Co. v. General Omnibus Co., 93 N. J. L. 344 (at p. 349); Wethling v. Orange, 94 Id. 36.

The amendment of the Home Rule act (Pamph. L. 1926, p. 378) lays down completely and finally the method of adoption of all ordinances in all municipalities of the state under whatever form of government they may exist.

The next ground is that subdivision f of placitum 8 of section 1 of the ordinance provides indefinitely for the occupation of a portion or portions of proposed highways and that the municipality is without power to permit such encroachments.

The question of indefihiteness is disposed of by the fact that a map or plan accompanying and made a part of the ordinance definitely shows and marks the portions referred to.

The encroachments so- called are platforms of the railroad company which are to be in lieu of sidewalks, and are to be secured by such rights being reserved to the railroad company in lands to be acquired by it and conveyed to the city. Counsel points to no authority indicating unlawfulness of such a provision and I have found and know of none.

The third ground is that the statute (Pamph. L. 1925, p. 377, supra), requires action to be taken either under the Walsh act or Home Rule act, and prosecutor contends the action should be under section 6, Pamph. L. 1912, p. 643, supra. This has already been considered and disposed of under point one, except that it should be added that the Home Rule act and its amendments and supplements cover all the matter legislated upon and contracted toward in the ordinance-contract and comprehended by section 6 of the Walsh act, supra.

. The fourth ground is that the ordinance-contract does not bind the railroad company to build a new terminal.

I think this cannot be said to be so. The entire document is to that purpose and end.

The fifth ground is that the ordinance is unreasonable because no time is fixed for the completion of the proposed terminal.

This does not make for unreasonableness, and I am unable to find it presents a proper reason for review.

The sixth ground is that the shares of the costs of the improvements are not fixed as required by Pamph. L. 1925, p. 377, supra.

This contention is not supported. An examination of the ordinance will readily show that the burden of undertaking, and, therefore, the financial responsibility for each portion of the work is specifically provided for. A determination in this direction in actual and fixed sums would be impossible in an undertaking of this character and magnitude.

The seventh ground is that no provision is made for the cost of vacating certain streets including the consequential damages to property owners.

This matter will and must be the subject of future municipal action.

The eighth and final ground is that certain amendments were made at or before the meeting for hearing of objections.

Neither of such amendments substantially changed the substance or effect of the ordinance and therefore in nowise affected the proceedings.

The application is therefore denied and allocatur of the writ refused.


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    BOUND BROOK CRUSHED STONE COMPANY v. WILSON & ENGLISH CONSTRUCTION COMPANY.
    Decided April 30, 1927.
    Sale of Goods — Goods Sold and Delivered — Defendant Alleges That Purchase of Goods was Not Made From Plaintiff but From Another Corporation, Against Whom They Have a Counter-claim — Goods Were Consigned From Plaintiff to Defendant, and Were Ordered Through the Other Corporation— Held, That the Other Corporation Acted as Sales Agent, and Whether Principal was Disclosed or Not, Plaintiff was the Principal and Real Creditor For Whom Judgment May be Entered Against Defendant.
    On motion to strike ont answer and for summary judgment.
    Before Justice Parker, at chambers.
    For the plaintiff, Harrison & Boche.

    For the defendant, Hobart & Minará.

   Per Curiam.

This is an action on a book account of goods sold and delivered. No question arises as to the delivery, or quantity or quality of the goods (crushed stone) nor as to the amount. The defense, as developed on the affidavits, is that the stone was not purchased from the plaintiff but from another and independent corporation called F. R. Upton, Incorporated, to whom, if to anyone, defendant is liable, and against whom defendant asserts a counter-claim substantially equal to the claim sued on. As authorized by the existing practice, defendant brought in F. R. Upton by an independent summons in this action, to which is attached a complaint asserting the counter-claim against F. R. Upton, Incorporated.

I am not concerned on this motion with the question whether defendant has a valid claim against F. R. Upton, Incorporated. The question before me is whether the plaintiff or F. R. Upton, Incorporated, is the owner of the primary claim for the stone.

The answer denies the complaint generally and denies any purchase from or account with plaintiff. There is an “objection in point of law” which was not passed, I think, at the argument, and which appears to be without substance.

Touching the denials in the answer there can be no question but that the stone delivered came from the quarries of the plaintiff and was consigned by plaintiff directly to defendant by rail. It is plain also that the sale was made through E. R. Upton, Incorporated, as “sales agent” or “branch office” of plaintiff, operative in an office building at Newark and without any physical possession of the property or of any muniments of title thereto. Whether defendant honestly believed it was buying crushed stone from E. R. Upton, Incorporated, under representations on which it was entitled to rely and for which plaintiff is accountable, may be in dispute, but on the papers before me there can be no doubt that E. R. Upton, Incorporated, was an agent or agency of plaintiff, and that the plaintiff was a principal, disclosed or undisclosed; just which, seems immaterial for present purposes, because the counter-claim is asserted only against F. R. Upton, Incorporated, and not against the plaintiff.

It appearing, therefore, that the plaintiff is the principal in the transaction and the real creditor, and no counter-claim being asserted as against it, judgment may be entered for the face of the claim on filing the usual assessments of damages.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HELEN RICHLOW, BY WALTER RICHLOW, HER FATHER AND NEXT FRIEND, PETITIONER, v. MANHATTAN SHIRT COMPANY, RESPONDENT.
    Death of Employe From “Galloping Consumption” — Alleged That Disease was Affected by Carbon Monoxide Generated by the Gas Company — Held, Disease Did Not Prombte Death.
    On determination and finding of facts and rule for judgment.
   Hi H< H' Hi H¡ Hi *

1. That on January 8th, 1926, and for some time prior thereto the said Helen Eichlow, a girl of nineteen years of age, was employed by the respondent on the fourth floor of its plant in the city of Paterson, New Jersey, as a folder of garments at a weekly wage of $12.60.

2. That on January 8th, 1926, while she was engaged in the duties of her employment, some illuminating gas escaped from the gas mains of Public Service Gas Company, located in the street some distance beyond the respondent’s plant,' and flowed along the gas pipes entering various buildings in the neighborhood, including the building in which the said Helen Eichlow was employed, and that during the date last mentioned she and some eighty other female operators there employed smelled the said illuminating gas about the premises; that during the evening of January 8th, 1926, the defect in the gas main located in the street as aforesaid was remedied by Public Service Gas Company so that during Saturday, January 9th, 1926, the said illuminating gas, while still somewhat noticeable in the said respondent’s plant, was not nearly as obnoxious to the operators there employed as had been the case on the preceding day; that the said respondent’s plant, in accordance with the usual custom, was closed at twelve o’clock noon of Saturday, January 9th, 1926, and did not reopen until the following] Monday, January 11th, 1926, and that neither on the latter date nor thereafter was the presence of illuminating gas in the said respondent’s plant noticeable at all.

3. That the said Helen Richlow continued at her work during Friday, January 8th, 1926, until twelve o’clock noon, when she left the said respondent’s factory and went to her home for her lunch, returning to her work at one o’clock and worked until five p. m., whereupon she left the plant and did not return thereto until Saturday morning, January 9th, 1926, worked there until twelve o’clock noon, whereupon she left and returned Monday, January 11th, 1926, and worked continuously during that day, also the following day, January 12th, 1926, and until twelve o’clock noon of January 13th, 1926, when she left the factory to go home for lunch, and upon arriving there became ill; that shortly thereafter she was sent to a local hospital where it was discovered that she was suffering from a form of pulmonary tuberculosis, later determined to be galloping consumption, from which she died on May 15th, 1926, as aforesaid.

4. That the inhalation of illuminating gas by the said Helen Richlow during Friday, January 8th, 1926, and Saturday morning, January 9th, 1926, was purely coincidental with her breakdown on January 13th, 1926, and could not have activated an old tuberculosis, assuming that she already had this disease, in view of the fact that there elapsed plenty of time between noon of Saturday, January 9th, 1926, and noon of Wednesday, January 13th, 1926, within which she could have entirely exhaled the said illuminating gas from her respiratory tract, also because she exhibited no untoward results of her inhalations during Monday, January 11th, 1926, or Tuesday, January 12th, 1926, and in view of the further fact that not one of a large number of other female operators similarly exposed exhibited any marked symptoms as the result of inhaling the said illuminating gas.

5. That the great weight of the medical testimony adduced before me demonstrates that the alleged deleterious element in. illuminating gas, to wit, carbon monoxide, does not even irritate the mucous membranes much less adversely affect the respiratory tract, and that in no event could it within the time and under the circumstances here present activate an old tubercular condition, which latter was the theory upon which a recovery was sought, and that the illness which resulted in the death of the said Helen Eichlow was not caused or aggravated by the illuminating gas which she inhaled on the occasions above mentioned.

* * * * :|i * *

Harry J. Goas, Deputy Commissioner.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN KANE, PETITIONER, v. PHILIP (OR EELIAMANO) COLAVITA, RESPONDENT.
    Injury to Employe’s Eye While Engaged in Plastering a Ceiling of Employer — Intoxication Alleged but Not Shown to Have Been the Cause of the Accident.
    On petition for compensation. On determination of facts and rule for judgment.
    For the petitioner, William Elmer Brown, Jr.

    For the respondent, Paul M. Salsburg.

   The facts in this case are that on October 2d, 1925, the petitioner, John Kane, suffered an accident which arose out of and in the course of his employment with the respondent, Philip (or Feliamano) Colavita. The petitioner, a plasterer, while working on a scaffold consisting of planks laid across two trestles elevated about three feet from the ground, was engaged in plastering a ceiling of a room in a house then under construction located on Grant avenue, Atlantic City, New Jersey, and while thus engaged a. quantity of lime or mortar fell from the ceiling, as it was being applied by him, and into the left eye of petitioner, thereby injuring and burning said eye. Petitioner was given treatment by Dr. Halvor L. Harley, of Atlantic City, New Jersey, who, upon examination, found the petitioner suffering with severe pains in and about the region of said eye, and that the sight of said eye had been impaired. The petitioner is now and has ever since said accident suffered impairment of the sight of said eye to the total of eighty per cent, of its use.

The respondent presented as a defense to said action the claim or contention that said accident was caused by reason of the intoxicating of said petitioner and that said intoxication was the proximate and natural oause of said accident and injury. There was evidence produced having bearing upon this question both for and against respondent’s contention that petitioner was intoxicated, but there was no evidence produced or offered at the hearing tending to show that said intoxication, assuming it to be true, was the natural and proximate cause of the injury as is required by said statute, and the burden of proof of said fact is by such statute placed upon the employer-respondent.

After careful study of the evidence, I have come to the conclusion that the disability of which petitioner is suffering is a permanent loss of eighty per cent, of the sight or use of the left eye.

Charles E. Corbin, Deputy Commissioner.