text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTONIO GATTO, PETITIONER, v. NEWARK PLASTER CONTRACTING CO., RESPONDENT.
    Decided May 6, 1940.
    For the petitioner, Cox <& Walburg (bjr Arthur F. Mead).

    For the respondent, James J. Slceffington.

   The petitioner testified that on August 18th, 1939, while working as a plasterer for the respondent at the Veterans Hospital in Lyons, New Jersey, in connection with his work he and a fellow employe were plastering a room on the morning of that day. In connection with this work they mixed the plaster and put the plaster on the walls and ceiling. About one-half hour before the noon lunch period, he went into a closet in connection with the room to do the plastering in the closet which work consumed about one-half hour. He stated there was no air in the closet and it was muggy and that he was sweating and after working in the closet for a while he began to get weak and about five or six minutes before twelve o’clock felt “broken up” so that he couldn’t do anything and had a pain which he indicated to be in about the region of the mid-sternum.

He stated he sat on the scaffold until noon feeling bad and at noon got off the scaffold, went downstairs to an open part of the building which he called a stoop. Meanwhile his fellow workman had gone to get his lunch and when the fellow workman came back with the lunch the petitioner could not eat so he went over a short distance and got a drink of a little water and on the way back fell down. He remained on the ground and his foreman was called and he was taken in the car to the medical section of the hospital where he was working and then carried upstairs and put to bed. After five days he was discharged from the hospital and taken home in a private car, carried upstairs and put to bed where he remained for about two and one-half months. After that period of time he got up and moved around a little bit and stated that he was unable to exert himself, unable to do any work of any kind and that he becomes short of breath when he moves around,very much. He stated that he never had any such trouble before and that he had worked a number of years as a plasterer without complaint or difficulty.

On his behalf the fellow workman testified with respect to the work which was being done by him and the petitioner in the morning of August 18th and testified in detail as to what the work involved. He stated the petitioner did not complain to him during the morning but after both of them had gone downstairs for lunch and he, the fellow workman, had procured the lunch for the petitioner, the petitioner could not eat his lunch, went over to get a drink of water and on the way back collapsed and had to be carried in a car to another part of the hospital.

Certain portions of the official weather reports were stipulated which reports showed that the temperature readings, daylight saving time, were as follows: August 18th, 1939— eight A. m., seventy-two; nine a. m., seventy-five; ten A. m., eighty-one; eleven A. M'., eighty-four; twelve noon, eighty-seven; twelve-thirty, ninety-one; one p. M., eighty-eight.

On behalf of the petitioner, Dr. Sidney Gardner, a doctor connected with the Veterans Hospital at Lyons, and Dr. J. H. Thornton testified with respect to the condition of the petitioner while he was a patient at the hospital from August 18th, 1939, to August 22d, 1939. The petitioner was admitted as an emergency case about twelve-thirty, his temperature was ninety-six, pulse 126 and respiration twenty-four. His wife was notified of his critical condition and a priest was called. A diagnosis was made of heat exhaustion and the breath sounds were so loud on the first day that it was, difficult to obtain'heart sounds until the following day. At that time there was definite auricullar fibrillation and treatment was rendered for the heat exhaustion and the heart condition.

Also on behalf of the petitioner Dr. Irving Willner testified as treating physician and Dr. Applebaum testified as consultant. It appears further that the petitioner is at present under conservative treatment and has made some recovery from his original critical condition. The doctors made a diagnosis of cardiac fibrillation, a dilation on the left side and impairment by reason of cardiac collapse. The doctors stated in their opinion that the disability was by reason of the cardiac condition which petitioner now has and which required continuous treatment to restore the cardiac reserve as much as possible. There is, however, permanent functional disability by reason of the heart condition which in the opinion of the doctors came about by reason of the work which the petitioner did from the conditions under which he worked the morning of August 18th, 1939, more particularly the effort and the atmospheric conditions involved. Dr. Willner, attending physician, was unable to state just what the permanent disability was or ultimately will be since it was difficult to make a prognosis. He stated the existing disability was total incapacity to work although the petitioner was able to get about as long as he stayed within the limits of his cardiac reserve.

On behalf of the respondent the foreman, Mr. -Kline, testified that the work which was being done on the morning of August 18th, 1939, was in connection with plastering a room on the third floor on the north side of the building. He stated the windows were opened from the bottom and that plastering was being done on the ceiling and side walls of the room and that sometime before the noon hour Mr. Gatto did some plastering in a closet adjacent to the room. He stated that it was warm on that morning and as a matter of fact the men were perspiring quite a bit but that the petitioner did not complain to him during the morning with respect to his physical condition. However, a few moments after twelve o’clock his attention was calle'd to the fact that Mr. Gatto had collapsed and was lying on the ground near the porch where the men had their lunch. He and another workman then put Mr. Gatto in a car and then took him over to the medical portion of the hospital.

For the respondent Dr. Kaufman testified with respect to examinations made by him August 25th, 1939, and March 13th, 1940. He made a diagnosis of organic heart disease, enlargement of the left side, heart failure and a lowering of cardiac reserve. He stated that the condition was one which may or may not have come from the heat exhaustion or the conditions under which the petitioner was working on August 18th, 1939. He stated that on his examination of March 13th he found the petitioner’s general condition was very much improved and the cardiac condition was under control and much better. The blood pressure was within normal range and he estimated the disability was approximately twenty-five per cent, of total.

I have had occasion to consider the testimony presented before me and I find and determine that the petitioner did sustain an accident arising out of and in the course of his employment when he collapsed on August 18th, 1939. He collapsed as a result of a cardiac condition and heat exhaustion and the end result has been a cardiac condition. In my opinion the petitioner’s heart was not without impairment previous to August 18th, 1939, and that the work which he did and the conditions under which he worked brought about a collapse of an unnormal heart.

As to the disability, I find that the petitioner is entitled to temporary disability from August 18th, 1939, .to April 29th, 1940, and permanent disability of twenty-five per cent, of total.

* ** # * # # *

John C. Wegner,

Deputy Commissioner.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MOZELLE PATTERSON, PETITIONER, v. HARRY RYNAR, RESPONDENT.
    Decided May 20, 1940.
    For the petitioner, Harry Erieger.

    For the respondent, Francis X. Eenneally.

   # Hs % Hi

I find from the proofs that the respondent is a contractor engaged in the construction business. He had contracted to remove stucco from a building situate at Ho. 118 Fourth avenue, East Orange, Hew Jersey, and on April 28th, 1938, he and several workmen were so engaged. Patterson was one of the workmen on the job. It was Patterson’s duty to rip stucco from the side of the building by the use of a crowbar.

On that day—Apiri 28th, 1938'—at about eleven-thirty A. M., Patterson was engaged in the performance of this task and was standing in an alley about two or two and one-half feet wide, formed by the side of the building upon which he was working and the building next adjoining it, when a mass of stucco some distance above him, which apparently had become loosened, fell from the side of the building on which he was working, striking Patterson about the stomach and crushing him against the wall directly in back of him.

As a result of the accident, Patterson sustained injuries to his back over his right kidney, over the lumbo-sacral area of his back and to his sacro-spinalis muscles situated anatomically in close proximity to the kidney area. After resting for awhile, Patterson continued to work as best he could— for about one-half hour—until noon, at which time, complaining that his pain was severe and that he felt sick, he applied to his foreman for leave to quit his job and go home. Permission was granted and Patterson left for home. On reaching home, Patterson immediately went to bed. lie remained in bed until April 30th, 1938—two days after the accident—complaining of acute pain in the back over the right kidney. In the evening of April 30th, 1938, the pain not having subsided, he was taken to the office of Dr. Benjamin Polow in Newark, New Jersey, by automobile. Plis condition was such that he had to be helped from his bed, supported under each arm by other persons, into the automobile in which he was removed to the doctor’s office. According to Dr. Polow, who testified for the respondent, when he first saw Patterson, he was suffering from severe abdominal pains, pain in the back, especially in the region of the right kidney and lower lumbar regions. Patterson told Dr. Polow that he had vomited at times and that his urine was reddish in tinge. Dr. Polow found his condition to be such that he ordered Patterson’s immediate hospitalization. Patterson went directly to the Newark Beth Israel Hospital from the doctor’s office. He was taken there in a car by his foreman, who had driven him to the doctor’s office.

>¡: ^ ^ ^ $

Patterson remained in the hospital until May 5th, 1938, when, according to the hospital record, he was “allowed to go home to bed.” His condition on leaving the hospital, as shown by the record of that institution in evidence, reads, “tenderness over right kidney region still present—still has pain over right sacro-spinalis muscles—bending and turning still accomplished with difficulty—to be seen at home.” He was seen at home and received treatment from Dr. Polow for almost three months—until July 23d, 1938. Dr. Polow prescribed a belt for him to wear for support and estimated his disability on July 23d, 1938, to be “fifteen per cent, of the back.” At the time this estimate was given, Dr. Polow testified that Patterson “still had tenderness on pressure over right kidney region and over the right recto-spinae muscles.”

It is uncontradicted that after his accident Patterson did not return to work for the respondent, nor that he did not do any other hard, laborious work until his death. The respondent urges that he worked in a grocery store following his accident. One of the co-owners of the grocery store, a relative of the decedent, was produced before me and testified that Patterson never worked there. It appeared that Patterson lived with the co-owners and some times sat around the store when his condition of health permitted. He did no work. He received no wages, compensation or other returns for any work at the grocery store. The petitioner, it appears, did work there. She fully supports the co-owner’s version.

Patterson never recovered from the effects of his injury. He became broken down in his general health and went into a steady decline. He was never free from illness following the accident. On January 24th, 1939, he died in St. Michael’s Hospital, Newark, New Jersey, of an inflammatory condition of the kidneys and an enlarged heart. The cause of death as stipulated by the parties and established by the post-mortem examination, was chronic glomerulo-nephritis and hypertensive heart disease. I find from the testimony, that from April 28th, 1938, the date of his injury, until January 24th, 1939, the day of his death—a little less than nine months— that he grew progressively worse until he died. This despite hospitalization in Newark Beth Israel Hospital, active post-hospital treatment by Dr. Polow for almost three months, medical care and attention of Dr. John J. Williams, and hospitalization in St. Michael’s Hospital.

There was admitted in evidence without objection, a record of proceedings in the compensation bureau on August 9th, 1938, which has received my careful consideration. Prom the pleadings in that proceeding and the record, it appears that Patterson made a claim for compensation arising out of his injuries on April 28th, 1938. This claim originated with a petition dated May 10th, 1938. Patterson was then still under Dr. Polow’s treatment. He continued to be treated by Dr. Polow until July 23d, 1938—more than two months later. That claim was compromised between the parties on August 9th, 1938. By the terms of the compromise, respondent stipulated that judgment be entered against him for disability, temporary and permanent, and for expenses of medical care and attention and certain other fees. The stipulated judgment provided that Patterson receive partial permanent disability for fifty weeks, which is equivalent to ten per cent, of total disability. This was in addition to temporary disability of twelve weeks. He died after he had collected about one-half of the partial permanent disability awarded to him.

❖ ❖ Hs % % # ❖

The respondent controverts petitioner’s right of recovery on the ground that Patterson’s death was not due to the accidental injuries sustained on April 28th, 1938; that those injuries neither caused nor accelerated Patterson’s death from the causes mentioned.

If petitioner’s right to recover depended upon proving that the injuries caused chronic glomerulo-nephritis and hypertensive heart disease, the diseases from which Patterson died, there would be substantial merit to respondent’s contention. By the greater weight of the medical testimony adduced, as evidenced by the opinions of the experts produced by the respondent, particularly Dr. W. Kenneth Wheeler, a qualified urologist, and Dr. Salvatore Bose, a recognized pathologist, I am satisfied that the primary cause of death—chronic glomerulo-nephritis and its frequent concomitant hypertension—are not due to trauma. Both of these doctors point with cogent reasoning to the fact that the post-mortem examination revealed a bilateral involvement of the capillary tubules or glomeruli of both kidneys. In other words, that both kidneys showed inflammation and pathology while the accident involved a local trauma to the right kidney alone. Based on these observations, they conclude that trauma did not cause the diseases which terminated in death.

But, petitioner does not rely on the questionable relation between chronic glomerulo-nephritis and trauma where the nephritis is observed and diagnosed for the first time following the injury. She does not seek to establish that trauma caused chronic glomerulo-nephritis.

She admits the existence of diseased kidneys independent of trauma. Her theory is aggravation of this admittedly diseased condition. It will be seen that the issue therefore resolves itself to one of causal relation. Did the accident set in motion, aggravate, hasten or accelerate an undeveloped dangerous pre-existing physical condition which terminated in death? If it did, it is properly classable as the proximate cause of the fatality. Pisko v. Nelson, 4 N. J. Mis. R. 154; 132 Atl. Rep. 301. Cf. Purferi v. Pennsylvania Railroad Co. (Court of Errors and Appeals, 1936), 117 N. J. L. 508, and especially cases collated there at pages 511 and 513; 189 Atl. Rep. 126, 127. Azarowicz v. Metropolitan Beef Co. (Supreme Court, 1937), 118 N. J. L. 89; 191 Atl. Rep. 483.

If a reasonable inference can be legitimately drawn from the evidence and circumstances adduced, that the death of the employe was caused by or attributable to the accidental injuries sustained on April 28th, 1938, the petitioner may recover. The burden of proof rests upon the petitioner to establish her rights to compensation. Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, 460; Lundy v. Brown & Co., 93 N. J. L. 107, 108; 106 Atl. Rep. 362; affirmed (Court of Errors and Appeals), 93 N. J. L. 469; 108 Atl. Rep. 252.

Petitioner is not required to prove her case to a medical certainty. The test is probability rather than certainty. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22. It will suffice if the proofs show that the employment contributed to the injury or death. Ciocca v. National Sugar Refining Company of New Jersey (Court of Errors and Appeals), 124 N. J. L. 329; 12 Atl. Rep. (2d) 130; Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512, 520; 6 Atl. Rep. (2d) 396, 401; Cf. Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409; Douglass v. Riggs Disler Co., 120 N. J. L. 583; 1 Atl. Rep. (2d) 207; affirmed, 122 N. J. L. 379; 5 Atl. Rep. (2d) 873.

With these guiding principals in mind, I find that the evidence fully justifies an award in favor of the petitioner.

Credible evidence was adduced on behalf of the petitioner which stands uncontradicted, from which it appears that up to the time of the accident Patterson was a strong, healthy, hard-working man, without any indication of the diseases from which he died. He had been accustomed to doing laborious work. In the past he had worked as a farm hand. More recently, he had done the hard, laborious work generally allotted to laborers in the construction business. Except for an occasional “cold,” he had not been sick in bed nor had he ever been hospitalized prior to April 28th, 1938. He never had the care or attention of a physician, nor had he lost any time from work on account of illness. It appeared that he was ready, willing and able to work and actually did work whenever work was to be had. He was entirely free of the symptoms which arose following his accident and of which he complained from that time to the time of his death, viz., backaches, dizziness, nausea and weakness.

He $ $ $ H: $ $

In my opinion, despite the fact that decedent was a victim of a long-standing chronic glomerulo-nephritis, which was well advanced, and the accompanying enlargement of the heart, he was able to do hard work. The record of the autopsy by Dr. Eose, admitted in evidence, shows that Patterson was a man of good muscular development. This lends color and support to petitioner’s claim that decedent was a hard worker and active. It is well known that the kidneys and the heart are both compensating organs. Patterson sustained a severe trauma and despite hospitalization, bed-rest, continuous treatment for three months by Dr. Polow and subsequent treatment by other doctors, he died less than nine months after the accident.

I find that the accident adversely influenced the already weakened kidneys and hastened the death. There appears to be an abundance of competent evidence from which a reasonable inference would lie, that the nature of decedent’s injuries were of such seriousness as to greatly impoverish his system and predispose it to the inroads of the pre-existing glomerulo-nephritis and hypertension of which there was no apparent indication before the accident. For, as I have already observed, according to the testimony, the decedent before he was injured, was a man in apparent good health and vigor. Immediately after, he began to fail and grow weaker from day to day without any other apparent cause than from the injuries sustained by him; and as the cause of his death was glomerulo-nephritis and hypertension, it is difficult to escape the conclusion that the cause of death was an incident resulting from the accident.

Even if we assume that these pre-existing diseases are independent competent producing causes of death, we are still confronted with the situation that a strong vigorous hardworking man without any apparent indication of glomerulonephritis or hypertension, develops serious symptoms of these diseases for the first time after a violent trauma. It seems to me, therefore, that there is a permissible inference in these facts that the death from glomerulo-nephritis and hypertension on January 24th, 1939, was superinduced by the injury, or at the least, that the accident was an element in the excitation and acceleration of the disease or sickness which resulted in death. Lundy v. Brown, supra.

After carefully analyzing the entire testimony, the conclusion is inescapable that there is in this case, an unbroken chain of events revealing a reasonably accurate history of cause and effect, and tending to establish the following:

1. Good health with apparent freedom from kidney and heart disease symptoms prior to April 28th, 1938—the date of the accident.
2. A violent trauma on April 28th, 1938, with localized injury to the right kidney and back in the kidney area.
3. A diminished resistence and a lowering of the vitality beginning with that date, despite hospitalization, bed-rest and active medical care and therapeutic measures.
4. The development of acute kidney symptoms and symptoms of hypertension, followed by an unbroken continuity of physical degeneration of the former apparent vigorous constitution immediately following the injury and continuing until
5. Death.

The burden of proof resting upon the petitioner to establish her right to compensation, has been met. The evidence adduced furnishes a basis of rational inference, tantamout to legal proof of the fact that decedent’s death and the disability which preceded it resulted from the accident which arose out of and in the course of his employment.

I find, therefore, that the petitioner is entitled to the benefits of the Workmen’s Compensation act as the surviving wife who lived with the decedent at the time of the accident and to his death, and was the sole dependent of the decedent.

sN sfc #

Harry S. Medinets,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JENNIE ENGSTROM, PETITIONER, v. JOSEPH NICHOLS, RESPONDENT.
    Decided May 17, 1940.
    Tor the petitioner, Elias Q-. Willman.

    Tor the respondent, Bartholomew & Dwyer (by William J. Bartholomew).

   * * * * ❖ # %

The petitioner alleged in her petition that on November 30th, 1939, while decedent was working on the roof of a house, which respondent had contracted to repair, he fell off and later died as a result of the injuries sustained. She further alleged that the decedent was in the regular employ of the respondent at an average weekly wage of forty ($40) dollars.

The respondent admitted that the petitioner’s husband was injured and subsequently died in the manner alleged in the petition; but affirmatively pleaded that the decedent’s employment was that of independent contractor within the meaning of the phrase as used in the Workmen’s Compensation act of this state, and hence was not compensable because the Workmen’s Compensation Bureau was without jurisdiction.

At the time of the hearing it was stipulated between counsel for the respective litigants that decedent was injured while working on the repair of a roof under a contract secured by the respondent and subsequently died as a result of the injuries sustained. It was further stipulated between counsel that the controlling question was whether the decedent’s employment came within the purview of the act, in view of the defense of independent contractor affirmatively pleaded by the respondent. That question was the primary one submitted to me for determination.

The petitioner took the stand and alleged that the respondent had employed her husband on a weekly basis; substantial proof of this allegation, however, was notably lacking. On the contrary, it was rather clearly demonstrated, through Joseph Heon, the only other witness for the petitioner, whose testimony appeared pertinent to the issue, that the decedent was paid by the number of square feet he applied. The witness, on cross-examination, stated that the decedent supplied his own equipment, including the scaffolding, ladders, tools and brackets—that the decedent had hired him to assist as a helper and that the respondent did not direct the decedent in the manner in which the work should be done. In the course of the cross-examination of this witness it was further revealed that he acted as helper for the decedent on numerous other “jobs” with which the respondent had no connection.

One other witness testified on behalf of the petitioner but his testimony shed little or no light on the question at issue. Aside from having seen the respondent at the home of the decedent on a few occasions he knew nothing concerning any relationship between the two people.

The respondent convincingly testified to the following t-that the decedent’s services had been used by him on at least three or four occasions but as an independent contractor, that he paid decedent by the number of square feet on the “job” to be done, that the decedent supplied his own equipment to perform the work, and that he hired whatever assistants he needed and paid them out of the contract price which was agreed to before the work commenced. Eespondent further testified that he did not attempt to direct the manner in which the roof should be applied for he had no technical knowledge concerning the application.

It seems to me that the respondent was a creature of the Federal Housing Administration legislation. Prior to its enactment, and, for that matter for some time subsequent thereto, he was in no way connected with construction in any of its aspects. After the act came into being he became aware of the possibilities of convincing home owners to use the credit method established by the act in refurbishing their homes. To this end he applied himself with the result that for at least two years next preceding the contract herein mentioned he acted as a “dealer” in arranging at least seventy-five or more contracts. Of this number, though the decedent was one of the best applicators in the trade, the respondent used him on not more than four occasions. (The decedent’s services were apparently in demand and he was not always available.) The respondent had no employes, no office other than his home and had no facilities usually possessed by a common employer.

There were two other witnesses who testified on behalf of the respondent. They were disinterested witnesses. In fact, the son of the home owner, where the roof was being applied, testified that he was given a business card of the decedent’s with the statement that the decedent was in the same business as the respondent and could do jobs cheaper. The other witness, a Mr. Heuneman, testified that the decedent had been hired by him on occasions and that the method of payment was always by the number of square feet in the job.

A significant bit of testimony given by the respondent and which went not only unchallenged by the petitioner, but in fact substantiated by Joseph Heon, was to the effect that the respondent came to the job in Newfoundland, stayed for a short period of time and left leaving the decedent to proceed with the work independent of any direction or supervision from the respondent.

In the case of LaTerre v. Skillman, 7 N. J. Mis. R. 766, the deputy commissioner repeated the fundamental rule so often enunciated that:

“The manner of making payment for services rendered does not establish whether or not one is an independent contractor. According to the cases, it is purely a question of supervision.”

Likewise, in the case of Otmer v. Perry, 94 N. J. L. 73; 108 Atl. Rep. 369, Mr. Justice Minturn said:

“The work which the petitioner contracted to perform in this instance, was of a distinct and specific character, in the execution of which he was unhampered and uncontrolled by the views and orders of an immediate superior, and when the work was executed the relationship of the parties arising out of the contract was at an end,”

And further:

“In that fact inheres the distinction which differentiates the work or employment of the ordinary servant from that of an independent contractor.”

And in the case of Hart v. Kimball, 122 N. J. L. 217; 4 Atl. Rep. (2d) 493, the Supreme Court held, on a set of facts very much similar to those in the instant case, that: “defendant’s business was selling materials (and service) and not applying them, whereas prosecutor in conjunction with his brother was engaged in the contracting business doing this very sort of work * *

I find from the testimony and determine that the decedent’s employment which covered the accident of November 30th, 1939, and subsequent death, was that of an independent contractor within the meaning of the phrase “independent contractor” as set forth in the act, because the said employment and the work done pursuant thereto at the time of the accident was not under the control, supervision or direction of the respondent. I am, therefore, constrained to dismiss the petition.

It is, * * * ordered, that the petition filed in this cause be and the same is hereby dismissed, and judgment entered in favor of the respondent.

John C. Wegneb,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSELLA KOERNER, PETITIONER, v. J. I. HASS CO., INC., RESPONDENT.
    Decided May 13, 1940.
    Por the petitioner, Thomas F. Doyle.

    Por the respondent, James J. SJceffington.

   An application having been made for an allowance of counsel fee in connection with the above matter, and it appearing that this case when originally tried before the Workmen’s Compensation Bureau was dismissed and was thereafter appealed to the Hudson County Court of Common Pleas, and the aforesaid Court of Common Pleas reversed the finding of the Workmen’s Compensation Bureau and allowed the attorney for the petitioner a fee in the amount of $750 for the work performed in connection with this matter, and there is at this time a further application for counsel fee for the work performed in the Workmen’s Compensation Bureau.

After considering the argument of counsel, I am satisfied that when the appeal was taken to the Court of Common Pleas, this bureau was divested of jurisdiction and there is no jurisdiction in the bureau to assess any fees in addition to what has already been assessed in the matter by the Court of Common Pleas.

It is, therefore, * * * ordered that the application for additional counsel fee.be and the same is hereby dismissed.

John C. Wegner,

Deputy Commissioner.


author: Hartshorne, J.

text:
    Essex County Court of Common Pleas.
    ANNA BASKERVILLE, PLAINTIFF, v. PHILIP KOFSKY, DEFENDANT.
    Decided May 31, 1940.
    For the plaintiff, Kalisch & Kalisch (Harry Kalisch).

    For the defendant, Morris Wurgafi.

   Hartshorne, J.

Two young men on a party with their girls set out in their car one evening, Kofsky, the present defendant, driving. On reaching an intersection near the Essex county court house in Newark, they sought to beat the red light, and in doing so, on reaching the far side of the intersection, struck an old colored woman who had just stepped off the curb. Their ear careened some distance up the street, stopping head-on into a pole, leaving the woman tying on the street, with both legs broken, the bones smashed and protruding through the flesh. Her injuries were so serious that she was confined to the hospital for a year and a half at first, then had to return for further treatment for another six months and will be barely able to walk the rest of her life. So far, unfortunately, the circumstances are not unusual.

The unusual further facts, giving rise to the present proceedings, are as follows: As soon as the car stopped against the pole, and before any police or outsiders arrived, the present defendant, Kofsky, said to his friend, Kalba, in substance, according to the evidence, “You lie me out of this, and I’ll take care of you.” Doubtless because Kalba was an employe of Kofsky’s father, the passenger, Kalba, agreed to help perpetrate this false scheme. Accordingly, when the police arrived on the scene, Kalba, the passenger, showed them his driver’s license and said he was the driver. He later repeated this at police headquarters, Kofsky, the real driver, the. present defendant, standing by silently the while on both occasions.

Since the accident happened in the evening, there were none to question this falsehood, and suit was accordingly instituted in due course against Kalba, the supposed driver. Due to the exceptionally serious character of the injuries, the trial did not occur till after the expiration of two years from the date of the accident.

Since the bar of the statute had then apparently run against suing him, the real driver, Kofsky, the present defendant, in pursuance of his fraudulent agreement with Kalba to “take care of you [Kalba],” then came to court, and blandly corroborated Kalba’s testimony as to the fact that Kalba had not been the driver, and as to the fraudulent scheme they had originally concocted, and now apparently successfully perpetrated, both on the authorities and the injured woman. But cross-examination of Kofsky at this trial developed that he had left the state shortly after the occurrence of this accident, had never returned, and was now a resident of New York. Accordingly, and in order to prevent the effectuation of this conspiracy to obstruct justice (IV. J. 8. A. 2:24-7), so readily and purposefully admitted by both parties, plaintiff’s counsel, with the aid and consent of the trial court, served the summons in the present action against the real driver, Kofsky, at the conclusion of his testimony in the first suit, in the court room and shortly after court had recessed for the day. The suit against Kalba naturally terminated in finding him, the passenger, free of negligence toward the injured party. Such are the circumstances under which the present defendant, Kofsky, the true driver, now asks this court to set aside the service upon him of the summons by the injured woman in the present action for the same accident as in the first suit, instituted because of his deceit.

Substantially, the present defendant, who has conspired with his passenger to defeat justice and defraud the injured public, now asks this court of justice to become an accessory to this conspiracy. Fortunately for the law itself, a careful consideration of the cases shows such a contention to be as foreign to the law, as it is to common sense.

The privilege of the exemption of parties and witnesses from service of process, while going to, attending, or coming from, court, stems from the common law, its basic purpose being that for which courts themselves are established, i. e., to achieve justice. A host of authorities, not only in this state, but in the United States at large, and in England from the earliest times, establish this general purpose of the privilege. Furthermore they show that when this purpose is absent, and the individual seeking the privilege is not acting in good faith, but eollusively, so that the court’s extension of such privilege will achieve, not justice, but injustice, this peculiar privilege will not be granted.

The grant of this privilege is “a rule of public policy * * * in support of the unrestricted operation of our courts and the proper disposition of cases before them. * * * [It is] a practical rule of public policy directed to facilitating the administration of justice in our courts.” Michaelson v. Goldfarb, 94 N. J. L. 352; 110 Atl. Rep. 710. “The immunity extends to every person who in good faith attends as a witness.” Mulhearn v. Press Publishing Co., 53 N. J. L. 153; 21 Atl. Rep. 186. See accord, Dungan ads. Miller, 37 N. J. L. 183. So where the party seeking such immunity “has attempted to abscond from her residence and conceal herself and the children—and has committed two matrimonial offenses against him [her husband] and seeks to deprive him of any and all opportunity to have any redress in any court,” our courts have held that “the rule which she seeks to invoke was certainly never intended for the benefit of any such person.” Brown v. Brown, 112 N. J. Eq. 600; 165 Atl. Rep. 643.

Such has been the established common law rule in England from the earliest times. Even as to the more stringent process of arrest, the court is equally bound to protect the privilege, and “to take care that the privilege against arrest is not abused or carried so far as, instead of furthering the administration of justice, to enable a party to defy justice.” Ex parte Cobbett, 119 Eng. Rep. 1502; 7 E. & B. 955. “But here there was a manifest intention on the part of Davis to impose upon the court, and on that account he was not to be permitted to avail himself of the exemption.” Meekins v. Smith, 126 Eng. Rep. 363; 1 H. Blackstone 636. “The only question then to be considered is whether in such case the witness comes bona jide or collusively.” Walpole v. Alexander, 99 Eng. Rep. 530, Tidd’s Practice (8th ed.) 198. See to the same effect Anonymous, 88 Eng. Rep. 906; 11 Modern 79. Selby v. Hills, 131 Eng. Rep. 364; 8 Bingham 166.

Turning to the other jurisdictions in this country, we find numerous authorities gathered in an illuminating note to 19 A. L. R. 828, showing a series of classes of cases where the courts have refused to grant the privilege requested. These include cases where (1) “a full and complete adjustment of the rights of the parties cannot be had in the first action, and where full relief would be denied” were the second proceedings to be nullified; (2) where a tort has been committed by the person seeking the privilege while in attendance at the first proceedings; (3) where a crime has been similarly committed by him; (4) where the privilege would “enable him to escape all liability for his wrongdoing” (Mullen v. Sanborn, 29 Atl. Rep. 522 (Md.)); and (5) where the parties themselves give cause by their acts for the institution of the second proceedings against them. Nichols v. Horton, 14 Fed. Rep. 327. See, also, Lamb v. Schmitt, 285 U. S. 222; Long v. Ansell, 293 Id. 76; Central Farmers Trust v. Rorick, 57 Fed. Rep. (2d) 664; Liberty Morocco Co. v. Roth, 119 Atl. Rep. 312 (Del.).

Finally, this restriction in the grant of this privilege would seem, impliedly at least, to have been approved by our legislature. For the privilege of immunity from arrest, as distinguished from the lesser privilege of immunity from the service of summons, both of which were originally recognized at common law in this state, has alone been made absolute, and free from the above exceptions, by statute. N. J. S. A. 2:9f-18-24-2o. Expressio unius est exclusio aliarius.

That the present defendant deserves no clement consideration, on his own part, is clear. lie has defrauded both the authorities and the injured member of the public, and has violated the penal provisions of the statute. N. J. S. A. 39 :4-129. His action was clearly a collusive attempt with that of his passenger, the previous defendant, Kalba, to defeat justice. To ask a court to aid the perpetration of a conspirac3r to defeat justice, but evidences the applicant’s own utter disregard for law and the rights of others.

Since the other grounds originally urged have been abandoned, they will not be considered, and the motion to set aside the service of the summons will accordingly be denied.

Judges Flannagan, Van Eiper and Brennan concur.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE GOLDEN, PETITIONER, v. C. V. HILL & COMPANY, INC., RESPONDENT.
    Decided April 25, 1940.
    For the petitioner, Crawford Jamieson.

    For the respondent, George E. Meredith.

   v ❖ ❖ * * * %

The undisputed or admitted facts in this ease are that the petitioner for some time prior to June 30th, 1938, had been in the employ of the respondent as a night watchman and that on that day about one A. M. a fire occurred at the plant of the respondent during the tour of duty of petitioner. The petitioner noted said fire and turned in an alarm to the Trenton fire department which, when it responded was met at the gates of respondent’s factory and guided by the petitioner to the location of the fire. It is further admitted that on the morning of July 2d, 1938, petitioner suffered a left hemiplegia as a result of which he is now totally and permanently disabled.

Petitioner alleges that his present disability results from injury by accident arising out of and in course of his employment with respondent in that said hemiplegia was precipitated by the excitement and exertion incident to the aboye described fire at the plant of respondent.

Respondent, admitting that petitioner’s present disability is one hundred per cent, total and permanent, maintains that it is the result of disease suffered by petitioner, namely arteriosclerosis, and that the fire incident had nothing to do with precipitating the said hemiplegia. Respondent further alleges that at no time was it notified by petitioner of the alleged injury nor that it had knowledge of the same.

Testimony of Mrs. Mary Golden, wife of the petitioner, called on his behalf, is that the petitioner returned home from work on the morning of June 30th, 1938, about seven-forty-five and that ho was excited and raved and ranted; that though it was his usual custom to go to bed after eating breakfast he did not retire at all on this day but continued in the state of excitement and annoyed her with his raving and ranting. She further testified that he had always been a model husband and father previous to the accident and that his mental and physical condition had always been good heretofore. She further testified that he did not work on the night of June 30th but went to bed then for the first time since the fire and continued his strange actions the following day but did no work other than visiting the plant of respondent to collect his pay check. This would be on July 1st, 1938. On the following morning she stated it was necessary to call in Dr. John L. Wikoff to attend him.

Dr. Wikoff testified on behalf of petitioner that when he first called to see him on the morning of July 2d, 1938, he found him in bod suffering from a left hemiplegia, auricular fibrillation and hypertension; that he has treated petitioner from July 2d, 1938, to date but feels that the condition from which petitioner now suffers became permanent on May 30th, 1939. He stated from hypothetical question that his present permanent and, total disability resulted from the incident of the fire at respondent’s plant on the night of June 30th, 1938.

Dr. John A. Holland, also called by petitioner, testified that the hemorrhage which caused petitioner’s present disability was of the slow leaking variety and this would therefore account for the fact that his actual collapse did not occur immediately. This medical expert also expressed the opinion from hypothetical question that the excitement and exertion incident to the fire precipitated the hemorrhage which caused petitioner’s present disability.

Members of the Trenton fire department who responded to the alarm and extinguished the fire testified that when they arrived at 'the plant they were met at the gate by petitioner who then conducted them to the scene of the fire and that during their stay at the plant they observed he was in a state of excitement and that he assisted them in extinguishing the fire.

It further appears from the testimony that the petitioner, because of his physical condition, is unable to appear in court to testify on his own behalf and is unable to give any rational testimony in any event.

On this posture of the facts respondent moves for dismissal of the petition on the ground that the petitioner fails to prove that he has incurred personal injuries by accident arising out of and in the course of his employment, urging the court cannot draw an inference that the incidents of the fire alarm are the producing cause of the subsequent collapse of petitioner because there is no evidence of what may have occurred to petitioner between the hours of one A. m. and seven-forty-five A. m., when he arrived at home. The respondent alleges that because of such lack such inference would have to be based on speculation as other events occurring while petitioner was on his way home may have contributed to his collapse rather than that it was caused by the excitement and exertion connected with the fire events. In this connection it seems to me that the speculative element applies to any inference to be drawn from possible happenings to the petitioner during the period from the end of the fire until his arrival at home rather than to the proven facts of what did happen during the fire, which latter facts the medical witnesses aver would be a competent producing cause of his disability. Respondent to avoid liability for the injuries complained of on the ground they result from other causes than the accident has the burden of proof to establish such other causes. Atchison v. Colgate, 3 N. J. Mis. R. 451; 128 Atl. Rep. 598. It offers no proof whatsoever that petitioner’s injury is in fact the result of any cause other than the accident. .

Petitioner’s proofs clearly establish that his injuries result from the alleged accident of June 30th, 1938. The Court of Errors and Appeals in the case of Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, said: “Death from disease alone during the employment will not suffice, but injury or death which on proofs that are sufficient and persuasive, would not have occurred but for the services rendered in the employment, amount to injury by accident.” In reaching a conclusion that the proofs sustain a finding that the petitioner has proven injuries by accident arising out of and in course of his employment I have not considered the testimony of the treating physician, Dr. Wikoff, of the history given him by the petitioner as to the cause of his injuries, such testimony being hearsay and for this reason not usable for the basis of such a finding. Helminsky v. Ford Motor Co., 111 N. J. L. 369; 168 Atl. Rep. 420.

Eespondent also moves for dismissal of the petition on the further ground that the evidence does not establish proof that the respondent had notice or knowledge of the accident under R. S. 34:15-17; N. J. S. A. 34:15-17. Miss "Wanda Thorn, a witness called by respondent, testified that she was the private secretary of the treasurer of corporate respondent and that she makes out reports of accidents occurring at respondent’s plant from information usually furnished her by respondent’s plant foreman, but that at no time had she received from any source whatsoever any report of an accident involving this petitioner. However, she then testified further that she did receive, from some source she is now unable to recall, information to the effect that the petitioner had suffered a cerebral hemorrhage on June 30th, 1938, and as a result of this information made a report, Exhibit P-1, to respondent’s group accident or sickness carrier, The Travelers Insurance Co., and this insurance carrier, after an investigation of the matter made payments to petitioner under the sickness coverage of its said policy, the receipt of which by petitioner was admitted.

In this connection it should be noted that petitioner is merely required by the act to prove that employer had knowledge of an injury. Standard Water Systems Co. v. Ort, 10 N. J. Mis. R. 659; 160 Atl. Rep. 523. Knowledge of proper corporate agent of employer of occurrence of injury, is sufficient notice within meaning of act. Troth v. Millville Bottle Works, 89 N. J. L. 219; 98 Atl Rep. 435.

Respondent argues that it had no knowledge of an accident or injury but merely information which led it, and its insurance carrier to the conclusion that the petitioner was suffering from an illness not related to his employment. However, from the information in respondent’s possession that petitioner had suffered a cerebral hemorrhage it could just as readily have concluded that petitioner was suffering from an injury resulting from an accident occurring in its employ. The fact that it misinterpreted the knowledge it received is immaterial. General Cable Corp. v. Levins, 122 N. J. L. 383; 5 Atl. Rep. (2d) 731; Holzwarth v. Hedden Iron Construction Co., 1 N. J. Mis. R. 381.

I, therefore, find and determine that the petitioner suffered an accident arising out of and in course of his employment with the respondent on the 30th day of June, 1938; that the respondent had due notice or knowledge of this accident; that as a result of said accident he incurred personal injuries in the nature of a left hemiplegia; that as a result of said injuries he was temporarily disabled for the period June 30th, 1938, to and including May 30th, 1939, and now suffers a total permanent disability, entitling him to four hundred weeks compensation therefor, with the further right to apply for additional compensation at the expiration of this time as provided by law (R. S. 34:15-12b; N. J. S. A. 34:15-12b).

íjí :■{ if: í|? %i sfc #

Harry H. Umberger,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JANE HOFKER, PETITIONER, v. CROCKER-WHEELER ELECTRIC MANUFACTURING COMPANY AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, RESPONDENTS.
    Decided May 14, 1940.
    For the petitioner, William, A. Davenport.

    For the respondent, James J. Carroll.

   # sfc ❖ $ ❖ ❖

Petitioner’s decedent, George JI. Hofker, was employed by the respondent Crocker-Wheeler Electric Manufacturing Company for a period of years and at the time of the alleged accident was earning, as a piece worker, an average of $22.99 per week, which, should compensation be allowed, would entitle petitioner to a $10 compensation rate.

Petitioner’s decedent at the time of the alleged accident was seventy-four years of age and was suffering from myocarditis, arterio-sclerosis and myxo-sarcoma (cancer of the lung).

Petitioner’s decedent had discontinued his employment with the respondent about October of 1938 and was under active treatment for the lung cancer up to December of 1938, at which time, he was re-engaged by the respondent at the same work he had accomplished before he ceased work and from the testimony it appears he -worked, without interruption, from the week ending with pay day, December 24th, 1938, down to and including the date of the accident alleged, March 17th, 1939. * * *

It appears from the testimony before me that on March 17th, 1939, after working hours, and while petitioner’s decedent was leaving building Wo. 27 on the premises of the respondent, he caught his heels on the stairs leading to the sidewalk and fell on his face and head sustaining injuries. Edward C. Jones, secretary of the respondent corporation, witnessed the occurrence above referred to and assisted petitioner’s decedent to his feet. He noted that the injured man was in a dazed condition; bleeding from a laceration over his right eye and appeared to be shaken up. This witness assisted petitioner’s decedent to Michael Scalon, the nurse in charge of the plant infirmary, and petitioner’s decedent was given first aid by the nurse, who, when produced as a witness for the petitioner, testified that petitioner’s decedent gave him a history of catching his heels on the stairs and falling on his face and head. He further testified to the injuries he found petitioner’s decedent to be suffering from, namely, severe ragged laceration of the right eye with profuse bleeding, hematoma of the right eye and abrasions of the nose. $$$$$$$

From the facts thus far established by petitioner and undisputed by respondent, I find as a fact that petitioner’s decedent did, on March 17th, 1939, suffer an accident which arose out of and in the course of his employment with respondent and that respondent had due, legal and timely notice thereof. I, therefore, pass to the second question presented, namely, was petitioner’s decedent’s death hastened by the trauma of March 17th, 1939; was the trauma a contributing cause to his death; was his already weakened condition affected by the trauma sufficient to culminate in a premature and untimely death ?

The petitioner produced Drs. 0. MacArthur, S. Wolfe Emmer and Irving Applebaum in support of her contention. These physicians testified that in their opinion the injuries sustained by petitioner’s decedent were sufficient, when superimposed upon the conditions previously mentioned, to put the petitioner’s decedent to bed and to contribute to his death. It must also he kept in mind that prior to the accident, regardless of his infirmities, petitioner’s decedent had followed his usual occupation apparently unimpaired by his afflictions but following the occurrence, he was confined to bed until his death on April 14th, 1939. Dr. MaeArthur testified that at no time following the accident did petitioner’s decedent improve but on the contrary, regardless of the fact that the laceration and abrasions healed, petitioner’s decedent continued to become progressively worse until the date of his death. From the testimony of the petitioner’s doctors, it would appear that petitioner’s decedent maintained a balance between his ill health and his ability to follow gainful occupation up to the happening of this accident and from that point on, he was totally disabled; confined to bed and declined in health until his death some four weeks after the accident.

The petitioner herself testified that prior to the accident of March 17th, 1939, the petitioner had attended to his household chores and in fact on the morning of the occurrence had removed ashes and garbage and had taken care of the furnace before leaving for his place of employment. She further testified that when the petitioner’s decedent was brought to his home by the witness, William Thomsen, that he appeared to he dazed and shaky and had the palor of death. It was necessary for her, assisted by her daughter, to practically carry the petitioner’s decedent to his bed and that throughout the night, he still remained in a dazed condition. She further testified that the petitioner’s decedent’s nose was deviated following the accident and was extremely tender to touch even up to the date of his death. This fact was also brought out in the testimony of Dr. MaeArthur.

The respondents produced Drs. Saul K. Gluckman, Charles F. Baker, Bichard H. Dieffenbach and Otto Lowy in support of its contention that petitioner’s decedent’s death was in no way related to the trauma of March 17th, 1939, but was of causes independent thereof, which causes were in no way related to trauma or aggravated or accelerated thereby. Dr. Saul K. Gluckman testified that he treated the petitioner’s decedent on one occasion only, that is, he rendered the first treatment 'which consisted of six stitches being taken in the ragged laceration over the right orbit. He stated that the history was obtained from the petitioner’s decedent, that he had slipped and fallen but the history was unreliable because of the dazed condition of petitioner’s decedent. The doctor felt that the petitioner’s decedent’s condition was serious from the underlying condition and not from the trauma itself, although he testified that the trauma was in itself severe enough to put the petitioner to bed for at least several days.

Dr. Charles F. Baker testified to X-ray findings and treatment given petitioner’s decedent prior to the trauma and stated that in his opinion petitioner’s decedent had a cancer of the lung which the doctor treated by X-ray and which diminished in size under X-ray treatment; that it was a fatal disease and could only be arrested temporarily; that its natural progress would eventually result in death. Dr. Baker’s testimony showed that some improvement was registered by the petitioner’s decedent under treatment.

Dr. Richard H. Dieffenbach testified to several examinations made of the petitioner’s decedent prior to the date of his death. He did not see him after the accident of March 17th, 1939. The doctor established the fact that petitioner’s decedent was suffering from a cancer of the lung prior to the date of the accident; that the disease would ultimately prove fatal; that in his opinion the cancer was not caused, aggravated or the trauma a contributing cause to petitioner’s decedent’s death. On cross-examination, however, Dr. Dieffenbach in answer to a hypothesis stated by the examiner testified that trauma superimposed upon the petitioner’s weakened condition was a probable contributing cause of petitioner’s decedent’s death.

Dr. Otto Lowy testified on a hypothetical question propounded by the respondent that in his opinion the cancer from which petitioner’s decedent was suffering was not caused, aggravated or that the trauma of March 17th, 1939, in any way contributed to petitioner’s decedent’s death. Hot one of the medical experts could estimate with certainty or approximate the date upon which petitioner’s decedent would ultimately die from the underlying conditions independent of trauma.

After carefully considering all of the testimony, I find that petitioner has sustained the burden of the medical proof in support of the contention that petitioner’s decedent’s death was accelerated and hastened by the trauma received in the accident of March 17th, 1939; that the trauma, superimposed upon the already weakened condition of petitioner’s decedent was sufficient in its result to be a contributing factor in causing a premature and untimely death.

:¡í :¡; :¡í

John C. Wegner,

Deputy Commissioner.


text:
    LEROY E. McGIFFIN, PETITIONER, v. PEOPLES BURNER AND FUEL CORP., AND GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORP., LTD., RESPONDENTS.
    Decided March 2, 1940.

      For the petitioner, Donal G. Fox (Harry Krieger, of counsel).
    For the respondents, James J. Slc'effington (Joseph Coult, of counsel).
   $$$$!* H* $¡*

While there appears to be no question that McGiffin met with an accident in which he sustained serious injuries on January 8th, 1938, at Woodbury Falls, FT. Y., en route from East Orange, New Jersey, to Newburgh, New York, when his automobile skidded on some encrusted snow at the edge of the roadway, plunging into a stone post and overturning, his right to compensation is challenged by the respondents, Peoples Burner & Fuel Corporation, his employer, and the General Accident Fire and Life Assurance Corp., insurance carrier of respondent-employer, upon the ground that the said accident is not a compensable one within the intendment of the act.

The vital issue submitted for determination, succinctly stated, is: Did the injuries, admittedly sustained by McGiffin, result from an accident, arising out of and in the course of his employment with the respondent Peoples Burner & Fuel Corporation?

What, then, is meant by (a) an accident, (b) arising out of and (c) in the course of employment within the meaning and purview of the Workmen's Compensation act? Although there are many upper court decisions touching upon this highly technical term, I believe the interpretation as given by Mr. Justice Trenchard in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, one of the earliest compensation cases to be passed upon by the Supreme Court, clearly and concisely defines the same as follows: “An accident is an unlooked for mishap or untoward event which is not expected or designed. An accident arises out of the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to an employment when it belongs to or is connected with what a workman has to do in fulfilling his contract; it may be an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment. An accident arises in the course of the employment if the employe is doing what a man may reasonably do within a time during •which he is employed and at a place where he may reasonably be during that time.”

Tested in the light of this definition, it is quite obvious that a decision in the present case depends upon the purpose and character of the trip undertaken by the petitioner at the time of the occurrence of the accident. A recovery in his behalf is warranted if, upon a fair preponderance of the evidence, it appears that the journey was occasioned on the day in question because of some business mission of the respondent Peoples Burner & Fuel Corporation. On the other hand, if the trip as such was undertaken by the petitioner solely for private and personal reasons, then, under those circumstances, the said respondent would be entitled to prevail.

The proofs disclose that in January, 1938, and for a considerable time prior thereto, the Peoples Burner & Fuel Corporation was engaged in the business of marketing and servicing automatic oil-burner machines and selling fuel oil in connection therewith, having its offices and salesrooms in East Orange, New Jersey. The petitioner, Leroy E. McGiffin, in addition to being president and treasurer of the corporate respondent, was employed as its general manager in which latter capacity he received a salary of $100 per week. As general manager, he had full charge and supervision over the office and sales forces, with power to establish territorial agencies to handle respondent’s burner.

On the crucial question as to what the precise reason was for undertaking the said journey, the testimony offered on behalf of the respective parties is in sharp conflict both as to fact as well as to credibility. The petitioner testified that on the afternoon of January 8th, 1938, at approximately three o’clock, having completed his usual Saturday tasks consisting of general office routine and his attendance at the weekly salesmen’s meeting over which he presided, he set out for Newburgh, New York, in his LaSalle automobile, accompanied by two salesmen, Alexander Osborne and William Eubens, for the sole and express purpose of calling on a likely prospect, Hazlett & Huber Corporation of Newburgh, with the view of selling them a franchise in the respondent’s burner. According to his testimony, just shortly before departing, he instructed one of his salesmen to put a sample burner in the rear compartment of his car, together with a supply of literature descriptive of the burner, which sample burner was to be used in demonstrating its superiority in performance to the said prospect and which burner was found in the rear of the car after the mishap. He testified further that he was sober at all times and was at the wheel during the entire trip; and that while driving through Woodbury, New York, a small village situated a few miles south of Newburgh, he skidded off the highway by reason of some snow encrustment along the edge of the road, with the result that the car struck a stone post and overturned, pinning him underneath with the weight of the ear resting upon his right leg; that he was taken in an ambulance to the Cornwall Hospital, Cornwall, New York, where he remained a patient for a period of ninety-five days, being treated for a compound fracture of the right leg, injuries to the left arm and head, and a laceration over the forehead; that upon his discharge from the hosiptal on April 20th, 1938, he was removed to his home in Montclair, New Jersey, and was thereafter treated by Dr. Lawrence A. Cahill until August 15th, 1938, and kept under observation by the doctor until November 1st, 1938. It is because of the injuries sustained in the aforesaid accident that the petitioner brings the present proceeding to recover compensation for partial permanent disability resulting therefrom; it being conceded that the respondents have heretofore paid him the full period for temporary disability of forty weeks compensation at the rate of $20, covering the period from January 8th, 1938, to October 14th, 1938. With respect to the nature and extent of the permanent disability due to the accident, several medical experts testified in behalf of the petitioner and expressed their opinions as to the percentage of disability.

The respondents produced several lay witnesses whose primary purpose in testifying appeared to be an attempt to discredit the testimony of the petitioner. Some of these witnesses were former salesmen whose strained and embittered feelings toward the petitioner became quite obvious while on the stand. In substance, their testimony would seem to indicate that the petitioner, all during the morning of January 8th, 1938, imbibed quite freely with several others; that the drinking lasted into the afternoon; that the petitioner appeared drunk; and that the trip to Newburgh was planned not as a business venture but purely as a pleasure jaunt with an expectation that the drinking party would he continued upon their arrival there. Felix Huber, president of Hazlett & Huber Corp., appeared for the respondents and testified that his firm had no business appointment with McGiffin on January 8th, 1938, and that his company was not interested in any new make oil burner inasmuch as they were already overstocked with burners. Medical testimony touching upon the question of permanent disability, its nature and extent, was also produced on behalf of the respondents.

In rebuttal, petitioner took the stand in his own behalf and produced several witnesses who were formerly employed as salesmen for the Peoples Burner & Fuel Corporation. In fine their rebuttal testimony was an emphatic denial of any excessive drinking or drunkenness on part of the petitioner during the day in question, or that the trip to Newburgh was intended as a pleasure jaunt.

The weight of the evidence on the issue of intoxication is clearly with the petitioner. As regards this question, the evidence adduced by the respondents does not satisfy the test proscribed by law. There is no basis in the proofs to support a finding that the accident was caused by the petitioner’s intoxication. The presumption is to the contrary. The burden of proof of such a defense is, by express requirement of N. J. S. A. 34:15-7, cast upon the employer. In McCracken v. Serbe (Supreme Court), 4. N. J. Mis. R. 482; 133 Atl. Rep. 924, it was held that intoxication is a defense only when it exists at the time of the accident. In the case at bar there is no such proof that McGiffin was intoxicated when his car skidded on the partially snow covered roadway, striking a stone post and overturning. Furthermore it was stipulated by counsel in open court that the hospital records, pertaining to McGiffin upon his admission to the Cornwall Hospital shortly after the accident, are completely barren of any reference to intoxication or alcohol.

Likewise the weight of the evidence as to whether McGiffin, on the day in question and more particularly during the course of the journey and at the time of the mishap, was engaged in his employer’s business or in some personal act of his own, would seem to preponderate in his favor. This question, which is decisive of the vital issue in the case, is chiefly one of veracity and credibility. In resolving it in petitioner’s favor, my personal observation of him on the witness stand, his demeanor, the tone of his voice, the readiness with which questions were answered, his reaction to surprise and unexpected inquiries on cross-examination, and his carriage and expression were factors considered by me in arriving at and determining the probative value and weight of his evidence. The sphere of his employment measured and limited, not by material space, but by his ability and resourcefulness to find persons and firms interested in the respondent’s oil burner products, was in a sense boundless. He was at liberty to follow his own bent, freely and unhampered, in seeking prospects and potential customers. On the day in question when he decided to set out for a prospect in Hew-burgh, he was not required to await instructions or confirmation from any superior. By virtue of his position as general manager, he was clothed with authority to make such decisions for himself.

While it may be argued by the respondents that the petitioner failed to exercise good judgment in starting out so late in the afternoon, knowing that the roads were icy and dangerous, and without first notifying the prospective customer by telephone or otherwise of his intention to call that day, such failure, however, is no bar to his fight to compensation. In Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181, Mr. Justice Heher, speaking for the Supreme Court, stated:

“The obligation to make compensation is imposed upon the employer without regard to the negligence of the employe. Paragraph 7, section 2 of the statute provides that compensation in cases of personal injury or death of an employe resulting from an accident arising out of and in the course of his employment shall be made ‘in all cases except when the injury or death is intentionally self-inflicted, or when intoxication is the natural and proximate cause of injury.’ See Dixon v. Andrews, 91 N. J. L. 373; 103 Atl. Rep. 410; affirmed, 92 N. J. L. 512; 105 Atl. Rep. 893; Taylor v. Seabrook, 87 N. J. L. 407; 94 Atl. Rep. 399.

“The legislative design indisputably was to exclude negligence of every character and degree as a determinative in the classification of compensable accidents. While an employe ‘willfully negligent’ cannot recover under section 1 of the statute, no such limitation is imposed by section 2, paragraph 7 of said statute; compensation is required ‘in all cases’ coming within its provisions, with the two mentioned exceptions, i. e., when the injury or death is intentionally self-inflicted, or intoxication is the natural and proximate cause thereof.”

Nor does the fact, that McG-iffin was serving the respondent, Peoples Burner & Fuel Corporation, in a dual capacity, namely as a corporate officer as well as an employe (general manager), defeat his right of recovery, so long as the proofs, as here, show that he was performing duties at the time of tin; accident in connection with his employment as general manager. In Hannaford v. Central Railroad Company of New Jersey, 115 N. J. L. 573; 181 Atl. Rep. 306, Mr. Justice Trenchard stated:

“But the mere fact that one is an officer of a corporation docs not, under our Workmen’s Compensation act, necessarily preclude recovery for his death as an employe of the corporation. Such an officer may serve both as an officer and a workman under circumstances making him an employe within the meaning of the act, and if he sustains injury resulting in death while performing duties in the latter capacity, there may be a recovery under the act. Adam Black & Sons v. Court of Common Pleas, 8 N. J. Mis. R. 442; 150 Atl. Rep. 672; Strang v. Strang Electric Co., 8 N. J. Mis. R. 873; 152 Atl. Rep. 242.”

While the ¡journey to Newburgh was made for the express purpose of interesting a prospect in the respondent’s oil burner, petitioner’s compensation rights are unaffected even though plans had been made for a social party following the completion of the proposed business transaction. The New York Court of Appeals, in Marie's Dependents v. Gray et dl., 251 N. Y. 90, in dealing with this subject said:

“We do not say that the service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. The test in brief is this: If the work of the emplo3re creates a necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. Clawson v. Pierce Arrow Motor Car Co., 231 N. Y. 273. If, however, the work had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

Applying this test, the conclusion is inescapable that the petitioner has met the burden of proof in establishing that the accident on January 8th, 1938, arose out of and in the course of his employment. The criteria of a compensable accidental injury are: First, was the employment one of the contributing causes without which the accident would not have happened; and, second, was the accident one of the contributing causes without which the inju^ would not have been sustained. In appraising the evidence, probability and not certainty is the touchstone. Purferi v. Pennsylvania Railroad Co., 117 N. J. L. 508; 189 Atl. Rep. 126; Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22; Kuczynslci v. Humphrey, 118 N. J. L. 321; 192 Atl. Rep. 371.

Upon carefully considering the entire evidence in this case, I find and determine as follows:

That the petitioner was regularly employed by the respondent Peoples Burner & Fuel Corporation, as general manager, and that the said employment was subject to article 2 of the Workmen’s Compensation act.

That the respondent General Accident, Fire and Life Assurance Corp., Ltd., was the risk carrier of the said corporate employer.

*******

That on January 8th, 1938, the petitioner suffered personal injuries as the result of an accident, which accident arose out of and in the course of his employment. *******

That as a direct consequence of the injuries the petitioner has sustained partial permanent disability to his right leg, left arm, head and nervous system, all of which, by the greater weight of the medical testimony, approximates twenty per cent, total and permanent disability. *******

It is therefore * * * adjudged, determined and

ordered, that judgment final be entered in favor of the petitioner and against the respondents, Peoples Burner & Fuel Corporation and General Accident, Fire and Life Assurance Corp., Ltd. * * *

John J. Stahl, Deputy Commissioner.


author: Flannagan, J.

text:
    Essex County Court of Common Pleas.
    IN THE MATTER OF THE APPLICATION OF ALPHONSO MOSES EL FOR BENEFITS UNDER THE ONE PER CENT. FUND
    Decided January 3, 1940.
    Eor the petitioner-appellant, Harry Krieger.

    For the Commissioner of Labor, Stephen J. Lorenz.

   Flannagan, J.

This is an appeal from a determination of the Commissioner of Labor, denying the petition of Alphonso Moses El, a workman, for benefits under the “one per cent, fund.”

On December 8th, 1936, the petitioner sustained injury in an accident which arose out of and in the course of his employment. He was on November 12th, 1937, awarded fifteen per cent, of total for partial permanent disability, and on March 21st, 1939, he was awarded increased additional disability of ten per cent, of total for partial permanent disability, making a total of twenty-five per cent, of partial permanent disability. These awards, aggregating twenty-five per cent., were for disability growing out of the accident of December 8th, 1936. Prior to the accident, petitioner was suffering from a progressive disease (a luetic condition) which permanently, partially disabled him, but which the accident neither aggravated nor activated.

After the awards the petitioner suffered a stroke and became as a result of the accident of December 8th, 1936, and the pre-existing partial permanent disability, totally and permanently disabled.

The second award (that of March 21st, 1939) provided for payments by the employer for fifty weeks, and before the expiration of such fifty weeks and on October 4th, 1939, petitioner filed his petition for benefits under the one per cent, fund.

There seems to be no dispute on the facts, the only question presented being one of law, viz., whether under these circumstances petitioner is entitled to benefits from the one per cent. fund.

The Commissioner of Labor denied the petitioner benefits and dismissed his petition upon a single ground, viz., that “at the time of the accident or immediately thereafter he was not totally disabled.”

I can find no warrant for this limitation in the statute, and conclude that this ground is not well taken.

The statute (R. S. 34:15-95) provides (so far as presently pertinent) that payments from the one per cent, fund shall be made to persons totally disabled as a result of experiencing a subsequent permanent injury when such person had previously been partially disabled from some other cause. There is no provision that the total disability must occur simultaneously with the “subsequent permanent injury” nor that it shall occur “immediately thereafter.” Such a limitation would be illogical, for we know by common knowledge and experience that the effects of traumatic injuries are not to be reliably gauged by manifestations evinced simultaneously with the accident, or “immediately thereafter.”

Upon the argument in this court an additional ground was advanced in support of the dismissal of the petition, viz., that the petitioner had not exhausted, his remedies against his employer before filing his petition for participation in the one per cent. fund. The theory urged being that the petitioner should, before filing his present petition, have filed a petition for further increased disability.

On March 21st, 1939, the department adjudged that the extent of the petitioner’s disability due to the accident was an increased amount of ten per cent., or in other words, that his total disability due to the accident was twenty-five per cent. Presumptively this adjudication was correct and, so long as it stands, establishes the limit and extent of the petitioner’s disability due to the accident. To suggest that he may have suffered still further increased disability since that adjudication is a mere naked hj'pothesis in the face of the determination. The situation, as it was adjudicated to exist at that time, is assumed to continue until the contrary is made to appear.


author: McGrath, C. P. J.

text:
    Union County Court of Common Pleas.
    DOROTHY ANN LUKAWICH, PETITIONER-APPELLEE, v. PHELPS DODGE COPPER PRODUCTS CORPORATION, RESPONDENT-APPELLANT.
    Decided May 15, 1940.
    For the petitioner-appellee, David Boshein.

    For the respondent-appellant, George E. Meredith.

   McGrath, C. P. J.

Decedent was employed for a long time by respondent as a caster or moulder. In July or August, 1938, he was taken by respondent to keep the furnaces going daring Saturdays and Sundays so that the casting could be resumed on Mondays without delay. This weekend work was in addition to his work as a caster and, incidentally, this week-end work is described as that of a watchman but this term is misleading since his actual duty was to watch the fires and keep them going. In March, 1939, while cleaning out a furnace he received burns which caused his death. The award is appealed by respondent on the ground that the compensation should have been based on a wage of $42.10 per week as a “watchman” based on a five-day week. There is, however, no proof to justify such a finding. The evidence is that he received a weekly wage of $51.04 and that although his pay for casting and his pay for watching were at different rates, his customary weekly wage ag a fixed routine of long standing employment amounted to $51.04.

The week-end work was not occasional, nor overtime, but had continued for a long time regularly as part of the fixed and necessary routine of casting, and it was undoubtedly to the advantage of the employer rather than to employ a man for this work alone. He really had only one job with several duties, all of which were related and interdependent and all part of one continuous operation. The fact that he was not permitted to take a day off unless he got one of the other workmen to take his place, with the acquiescence of the employer and with deduction of pay only emphasizes the continuous character of his job as one general contract of hire, with added duties assigned during the course of employment. He was paid a weekly wage of $51.04 and there is nothing in the proof to suggest that his employer regarded him as anything but a regular worker employed at this weekly wage, although the rate of pay was different for the week-end work. He received only one check for both duties and apparently was carried on one payroll at this customary weekly rate.

The deceased did not meet his death as a “watchman” alone but as an employe, and there is no proof that he ever, would have been given the job of “watchman” if he were not already employed in the department; the inference is that he was given the added duty because he was already employed in this general work.

The essence of the statutory scheme is to prescribe weekly payments of compensation at a fixed rate, i. e., a certain percentage of the weekly wage (DiMeglio v. Slonk, &c., 121 N. J. L. 366; 5 Atl. Rep. (2d) 691) and this weekly wage is not always determined by the rate in force at the time of the accident, but primarily by the contract of employment; otherwise, the employer by splitting up the work at different rates, or segregating the most dangerous part of an operation or job could defeat the purpose of the act, and the court should not adopt such a construction. All the circumstances must be considered. It would be an obvious disregard of the statutory scheme to base the compensation on his week-end work alone and to ignore the rest of the contract, since one duty arose out of the other. In the DiMeglio case, the compensation was based on the weekly wage but it was impossible to tell what the weekly wage would be except by the calculation adopted by the Supreme Court. But in the present case there was a fixed weekly wage, which varied only if the employe took a day off, and in this respect the deceased was no different from any other employe who takes a day or so off from work and has his pay deducted accordingly. It is this “weekly” wage which is contemplated by the act on the basis of compensation.

In the present case also there is proof which was not present in the DiMeglio case nor in the other cases on this point: the respondent in the present case offered no proof but when ordered by the commissioner to answer a bill of particulars showing the weekly wage of decedent as shown by respondent’s payroll, the-respondent’s answer showed that this weekly wage was $51.04, and that is the wage on which compensation was allowed.

Respondent urges that the added work was voluntary but there is no proof that it was; the proof is that he was assigned to it. His job was no more voluntary than that of any other workman. Ho workman is compelled to take a job but when he does he is protected by the act.

I find that decedent was employed to respondent under one general employment, part of which was to act as caster and part to act as watchman; that his duties required him to keep the furnaces going for the work of casting and that on March 27th, 1939, he met with an accident which arose out of and in the course of his employment, from which accident he died on April 3d, 1939, and of which injury respondent had notice. His wages as a caster were $40.00 per week consisting of five days, from Monday to Friday, inclusive, and his hours for his extra duty as already stated were an aggregate period of sixteen hours for Saturday and Sunday. Ho received eighty-five cents an hour for forty hours for casting and $1.06% per hour for sixteen hours for his additional work. He worked regularly seven days per week for eight hours per day with about ten Saturdays off. His weekly wages for his general service for employment were $51.04, excepting deductions when he took off. His customary number of working days constituting the ordinary week of employment was seven days and compensation should be based on such seven-day week.


author: Kinkead, C. C. J.

text:
    Monmouth County Circuit Court.
    FREDERICK ROSSETER, PLAINTIFF, v. BENJAMIN E. FARRIER AND MRS. (HOWARD) HORNER, DEFENDANTS.
    Decided June 1, 1940.
    For the plaintiff, Samuel J. Foosaner.

    For the defendant Mrs. Howard Horner, McDermott & Finegold (M. Raymond McGowan, on the brief).
   Kinkead, C. C. J.

This is an action in tort, for damages for personal injuries. The defendant Mrs. Howard Horner in her answer sets up by way of a second separate defense that:

“At the time and place mentioned in the complaint, the plaintiff was guilty of contributory negligence, which bars any recovery by him in-this suit. His contributory negligence consisted in that:
a. He neglected to take proper precautions for his own safety.
b. He failed to make observation for others lawfully upon the highway.
c. He carelessly, negligently and recklessly exposed himself to the risk of such an incident as allegedly occurred.
d. He was in divers other respects guilty of carelessness, negligence and recklessness.”

The plaintiff, contending that he was motivated by an absolute lack of knowledge of the charges contained in said separate defense, demanded interrogatories, which are five in number and are as follows:

“1. In what manner was the accident in question due to the sole negligence of the operator of the car in which the plaintiff was riding as alleged?
“2. In what manner did plaintiff neglect to take proper precautions for his own safety, as alleged?
“3. In what respect was it the duty and wherein did the plaintiff fail in such duty to make observations for others lawfully upon the highways, as alleged?
“4. How did plaintiff carelessly and recklessly expose himself to risk, as alleged?
“5. In what other respects was plaintiff guilty of carelessness, negligence and recklessness, as alleged?”

Defendant Horner moves to strike all five interrogatories. Plaintiff’s counsel cites the case of Neske v. Burns, 8 N. J. Mis. R. 160; 149 Atl. Rep. 761, in support of plaintiff’s right to have these interrogatories answered and quotes from the opinion of Judge Maekay in that case as follows:

“The purpose of interrogatories is to supply a party with information which is within the peculiar knowledge of his adversary and which is essential to the preparation of his case for trial. The rule permitting interrogatories, having as its object the prevention of surprise at the trial, will be liberally construed. Assets, &c., Association v. Exposito, 94 N. J. Eq. 708.
“Further, the purpose of interrogatories is to gain from one’s opponent information necessary to build up the case of the party presenting them. Watkins v. Cope, 86 Atl. Rep. 545.”

Then counsel proceeds in his brief to contend :

“In line with the thought expressed in the foregoing paragraph, it is insisted that the plaintiff’s only purpose in seeking interrogatories in this case is to obtain such information as is within the peculiar knowledge of the defendant and as is essential to the preparation of the plaintiff’s case.”

It cannot be properly contended that the information sought by interrogatories numbers 2, 3, 4 and 5 is necessary for the preparation of plaintiff’s case. These four interrogatories seek information as to the alleged contributory negligence of the plaintiff. Contributory negligence is a defense and far from being a necessary link in plaintiff’s chain of proof, it is an element which defendant must establish by the preponderance of the proof. Therefore plaintiff in interrogatories numbers 2, 3, 4 and 5 is not seeking information necessary to the preparation of his case for trial, but is endeavoring to pry into the case of the defendant.

“The purpose of interrogatories on the other hand is to gain from one’s opponent information necessary to establish the case of the party propounding the question. Interrogatories are inadmissible for the purpose merely of prying into the case of one’s adversary.” Harris on Pleading 440, § 439.

In the ease of Cohen v. North Jersey Street Railway Co., 29 N. J. L. J. 299, it was held that defendant could ask plaintiff for information within plaintiff’s peculiar knowledge to show contributory negligence. The information thus sought was not an attempt by the defendant to pry into plaintiff’s case. It was an endeavor by the defendant to elicit information from the plaintiff which was within the peculiar knowledge of the plaintiff and which was necessary for the defendant to have, in preparing his case.

In Wigler v. Public Service Co-ordinated Transport Co., 10 N. J. Mis. R. 1077, a demand for a bill of particulars by the plaintiff as to acts of contributory negligence was denied. The court said (at p. 1079) :

“Where the injured party is a natural living person suing for his personal injuries received in an automobile accident, the contributory negligence, if any, is particularly within his own knowledge. The effect of a bill of particulars being to coniine the defendant to the facts contained in the bill, it would be unfair to limit the defendant to such acts of contributory negligence as it might be able to develop before trial when experience teaches that contributory negligence is often revealed on plaintiff’s own cross-examination as well as on cross-examination of plaintiff’s witnesses. Such practice would put defendant at the peril of discovering and advising plaintiff of what plaintiff himself is best qualified to know and might enable plaintiff to successfully suppress a complete defense well known to him, though as yet undiscovered by defendant. For these reasons bills of particulars of contributory negligence in actions by living injured persons for their personal injuries in automobile accidents should be ordered with great circumspection.”

The motion to strike interrogatories numbers 2, 3, 4 and 5 is therefore granted.

Interrogatory number 1, however, is proper and the motion to strike it is denied. The plaintiff must prove the negligence of the defendant Farrier in order to establish his case against that defendant. Therefore any information which the defendant Horner might possess, which would establish the liability of the defendant Farrier, is necessary for the plaintiff to have in the preparation of his case.

Counsel for defendant Horner contends that interrogatory number 1 is improper among other grounds for the reason that the plaintiff having alleged the negligence of the defendant Farrier presumably must have knowledge thereof. This may or may not be true, but in any event any knowledge possessed by the defendant Horner as to the negligence of Farrier, will naturally strengthen the case of the plaintiff against Farrier. Therefore the plaintiff is entitled to have the benefit of this information in the preparation of his case.

Counsel may submit an order in conformity with these conclusions.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    CITY OF NEW BRUNSWICK, PETITIONER, v. NEW BRUNSWICK AERIE NO. 1329, FRATERNAL ORDER OF EAGLES, RESPONDENT. NEW BRUNSWICK AERIE NO. 1329, FRATERNAL ORDER OF EAGLES, PETITIONER, v. CITY OF NEW BRUNSWICK, RESPONDENT.
    Decided May 28, 1940.
    Tor New Brunswick Aerie No. 1329, Fraternal Order of Eagles, Hicks, Euhllhau, Thompson & Deshler.

    For the city of New Brunswick, Paul W. Ewing (by William D. Danberry).

   Quinn, President.

The taxpayer in these appeals is the New Brunswick local unit of the national fraternal organization, Fraternal Order of Eagles. It made application to the Middlesex County Board of Taxation for exemption from taxation for the years 1937 and 1938 for its lodge premises, consisting of two buildings situated in the city of New Brunswick, and for personal property therein. The appeal for 1937 was granted and the assessment canceled, while the appeal for 1938 was dismissed bjr the county board. Hence the present appeals, by the taxing district to restore the 1937 assessment, and by the taxpayer to cancel that for 1938.

The exemption statute relied on by the taxpayer is Pamph. L. 1936, ch. 46 (R. S. 54:4-3.26; N. J. S. A. 54:4-3.26) providing that:

“All real and personal property used in the work and for the purposes of one or more fraternal organizations or lodges, or any association or society organized on the lodge plan, or affiliated associations, whether incorporated or unincorporated, shall be exempt from taxation under this chapter, if the legal or beneficial ownership of such property is in one or more of said organizations, lodges, associations or societies, and no part of such property is used for pecuniary profit.”

There is no question concerning the status of the taxpayer as a fraternal organization of the character intended for exemption, Newark Aerie 44 Fraternal Order of Eagles v. Newark (State Board), filed March 21st, 1939, nor as to its ownership of the property in question, but it is contended by the taxing district that the property was used for pecuniary profit as of the assessing dates for each of the tax years in question, i. e., October 1st, 1936, and October 1st, 1937. As always in cases of claims for exemption from taxation, the burden is upon the taxpayer strictly to prove its compliance with the statutory qualifications for exemption—in this case, that none of its activities were for pecuniary profit in the sense of the act. Princeton Country Day School v. State Board of Tax Appeals (Supreme Court, 1934), 113 N. J. L. 515; 175 Atl. Rep. 136.

The proof at the hearing of these appeals was to the effect that the aerie’s activities are conducted in two buildings, a frame structure in the front, and a brick building in the rear of its lot at 78 Carroll Place, in New Brunswick. The organization maintained a bar and buffet in the frame building, for ■which a plenary retail consumption liquor license was held by it from June 30th, 1937, to June 30th, 1939. Prior to that period, and apparently for some time theretofore, the aerie held a club license. It is not clear from the testimony whether the bar was ever made available to members of the general public during that prior period, and particularly as of October 1st, 1936, but there is a basis for suspicion that it was, as it was explained by the aerie treasurer that, “when they started bingo (prior to 1937) we had these government men coming in to see if we were selling to outsiders, outside of our own members, and we got sick of it.” Eo further proof was adduced as to whether or not, as of October 1st, 1936, actual sales were customarily made to the public at large. It is conceded that they were, as of October 1st, 1937. Under the rule respecting the burden of proof in exemption cases, hereinabove referred to, we must conclude that the taxpayer maintained in its frame building a public bar for both of the years in question.

Upon a number of recent occasions, we have held that prior to the year 1937, the taxpayer has, from time to time, conducted bingo games in weekly series of from ten to fifteen weeks, which were operated prior to 1937 by individuals in partnership with the aerie, but since then, by the organization itself. The public generally have been permitted to patronize these games, which constitute a form of lottery and have taken place in the brick building in the rear of the premises.

Upon a number of recent occasions, we have held that the operation of a bar or of bingo games to which the general public is admitted, constitutes a use of the property of fraternal organizations for pecuniary profit. The Benevolent Protective Order of Elks, Lodge No. 233, v. Borough of Red Bank (State Board), filed January 24th, 1939; Plainfield Lodge No. 885, Benevolent and Protective Order of Elks (State Board), filed February 21st, 1939. It has seemed to us that the actual incidence of profit or loss in the conducting of these enterprises, whether in and of themselves or in relation to the operation of the finances of the organization as a whole, is not of controlling importance, but that the real issue is whether the fraternal organization in question is permitting any part of its property to be devoted to uses ordinarily calculated to render pecuniary profit, as exercised by persons or corporations generally. Compare the construction of the phrase, “not conducted for profit,” as used in B. S. 54:4-3.6, dealing with the exemption of property of educational, religious and charitable organizations, as calling for a determination of the question as to whether the institution in question is or is not fundamentally philanthropic. Montclair v. State Board (Supreme Court, 1914), 86 N. J. L. 497; 92 Atl. Rep. 270.

Under our prior rulings, we must find that the taxpayer used its property for pecuniary profit, as of both the years 1937 and 1938, and that the original assessments for those years should stand.

The judgment of the Middlesex County Board is reversed in the 1937 ease and affirmed in the 1938 case.