text:
    State Board of Tax Appeals.
    THOMAS J. FINNEGAN ET AL., EXECUTORS OF THOMAS J. FINNEGAN, DECEASED, PETITIONERS, v. CITY OF JERSEY CITY, RESPONDENT.
    Decided April 21, 1942.
    For the petitioners, John J. O’Neill.

    For the respondent, Frank P. McCarthy.

   Quinn, President.

The sole issue before us upon this appeal is as to whether intangible personalty of the petitioners, assessed by the City of Jersey City for the year 1940 in the sum of $8,500, is properly subject to deduction in the amount of two mortgage bonds executed by the decedent during his lifetime, in favor of a New Jersey bank, in the sum of $23,882. If so, there is, of course, no taxable balance remaining. If not, the assessment is conceded to be valid and must be affirmed.

The statute relied upon by petitioners, R. 8. 54:4-14; N. J. S. A. 54:4-14, provides that the assessor may deduct from the valuation of a taxpayer’s personalty “all debts bona fide, due and owing from such persons to creditors residing in the state * * Such debts are deductible only from intangible personalty. R. 8. 54:4-15; N. J. S. A. 54:4-15. The question before us is as to whether a mortgage debt is within the act. Some light on the problem is afforded by a consideration of the rationale of the allowance of debt deductions generally. This is twofold. Firstly, the objective is to tax the property owner’s net equity, determinable after deduction of debts from gross assets. Secondly, it is sought to avoid the double taxation which would arise if choses in action were taxable to the obligees (as they generally are, B. 8. 54:4-1, 54:4-12; N. J. S. A. 54:4-1, 54:4-12), without being deductible from the taxable valuations of the obligors. While there are various statutory deviations from these broad objectives, they are fundamental underlying principles, and no result should be countenanced which would violate them, unless expressly required by the act. Let us consider the application of these principles to real estate mortgage debts.

B. 8. 54:4-33; N. J. S. A. 54:4-33 provides as follows:

“No mortgage or debt secured by mortgage on real property which is taxed in this state shall be listed for taxation, and no deduction from the assessed value of real property shall be made by the assessor on account of any mortgage debt, but the mortgagor or owner of the property paying the tax on mortgaged real property shall be entitled to credit on the interest payable on the mortgage for so much of the tax as is equal to the tax rate applied to the amount due on the mortgage, except where the parties have otherwise agreed, or where the mortgage is an investment of funds not subjcet io taxation, or where the parties have lawfully agreed that no deduction shall be made from the taxable value of the lands by reason of the mortgage. Bonds or obligations issued by a railroad or public utility company of any state shall be exempt from taxation while owned by a savings bank or institution for savings of this state.”

Two significant things are at once apparent. The mortgage is not taxable to the mortgagee at all, and double taxation would therefore not arise by the operation of a denial of a debt deduction in favor of the mortgagor. Further, and more important, the act specifically provides a means of enabling the mortgagor to avoid paying tax on any more than his equity in the property, by allowing credit on the interest payable on the mortgage for the amount of the tax allocable to the mortgage obligation. That mortgagors frequently waive this right, is not here material. As stated by Judge J ess, as president of the State Board of Equalization of Taxes, in an identical situation in the case of Nucoa Butter Co. v. City of Bayonne, 36 N. J. L. J. 315 (New Jersey Tax Reports, 1912-1934, p. 69) :

“If the taxpayer wishes an allowance for his debts secured by real mortgages, the statute prescribes the method by which he may obtain it, after expressly providing that he cannot deduct such debts from the assessed value of his real property. The presumption is that he exercises the right given by the statute to claim credit on the mortgage interest for so much of the tax as is equal to the tax rate applied to the mortgage debt. It is inconceivable that in addition to taking advantage of this means of offsetting his mortgage debt against his liability on real property, the legislature intended that the taxpayer might also use the same debt to reduce his tax liability on personal property.”

We see no reason why the conclusions of Judge Jess should not be followed in the instant case, no statutory change having taken place since that decision. While the statute is not clear, and on its face is susceptible of the contrary conclusion, we are moved by the fact that in the experience of the members of the board, realty mortgage debts have never been claimed or allowed as deductible from personalty, anywhere in the state. Legislative silence in the face of such a common understanding and practice is a strong indication of its conformance with the legislative intent in the matter.

The appeal will therefore be dismissed and the assessment affirmed.

Judgment accordingly.


source: Caselaw Access Project

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

license: Public Domain

text:
    JOSEPH A. NATALE, PLAINTIFF, v. AUTOMOBILE FINANCE CO., A CORPORATION OF THE STATE OF PENNSYLVANIA, CREDIT CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, AND WILBER D. JANES, DEFENDANTS.
    Decided May 4, 1942.
    Por the plaintiff, Charles D. Merz.

    Por the defendants, Charles Blume.

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

This comes on a motion to strike out the service of the summons and complaint as against the defendant Automobile Pinance Co., a foreign corporation, upon the ground that the service was not made upon an officer, director, agent, clerk or engineer of the corporation, as required by statute; and on motion to strike the complaint as against the defendant Credit Corporation, a New Jersey corporation, and Wilber D. Janes, upon the ground that the complaint is sham and further that it does not set forth a cause of action against these defendants.

The complaint, in substance, alleges that the defendant Automobile Pinance Co., a corporation engaged in business in Pittsburgh, Pennsylvania, through its agent, Wilber D. Janes, caused the unlawful- seizure of the automobile of the plaintiff and sues for the value of the said automobile.

Service on the defendant Automobile Pinance Co., a foreign corporation, was accomplished by service upon this sáme agent, ■ Wilber D. Janes. He was the agent who made the allegedly unlawful seizure. It is not disputed that he made the seizure and whether that was lawful or unlawful is the subject-matter of the litigation. It appears, therefore, that he had “such connection with the business out of which the alleged cause of action arose, as to make him a representative of the corporation, with respect to that particular business.” Service upon him, therefore, was properly made. Carroll v. New York, New Haven and Hartford Railroad Co., 65 N. J. L. 124; 46 Atl. Rep. 708, 709; Brainard v. New York, O. and W. Railway Co., 150 Atl. Rep. 681; Deighan v. Beverage Weekly and Trade Newspaper Corp., 18 N. J. Mis. R. 705; 16 Atl. Rep. (2d) 612.

As to the defendant corporation Credit Corporation the contention is that this corporation was in nowise connected with the transaction or with the seizure, and that the defendant Wilber D. Janes, when making the seizure of the car, was doing so for and on behalf of the defendant Automobile Finance Co., and not on behalf of the defendant Credit Corporation. This contention of the defendant is well substantiated, and in fact remains unrefuted by anything shown by the plaintiff. The most the plaintiff relies on, is the fact that Wilber D. Janes was an employee of the Credit Corporation, but there is nothing to show that, in this particular transaction, he was acting as such employee.

The plaintiff contends that Wilber D. Janes had admitted that there had been some correspondence between Automobile Finance Co., and the Credit Corporation, in reference to this transaction. However, it is not shown what this correspondence consisted of, nor is it shown that Wilber D. Janes receives his instructions from the Credit Corporation. It appears, therefore, that on the undisputed and uncontradicted statement of facts, no canse of action is shown as against the Credit Corporation.

As to the action against Wilber 1). Janes, the sole contention of the defendant is that they had the right to repossess the car as they did, and that therefore they are not liable. This, of course, raises a question to be tried, and if the facts as alleged were possible of only one interpretation, it would hg.ve been the duty of the court to pass upon such facts as a matter of law. That, however, is not the case. The plaintiff contends that he offered, through his banking facilities, payment of the entire balance due upon the car, but that the defendant refused acceptance of such balance. The defendant does not deny such refusal to accept payment, but contends that under the particular form of the so-called lease, executed by the plaintiff, the defendants were not under any obligation to deliver the canceled contract or bill of sale upon receipt of the balance due on the contract. The instrument in question is called a “lease agreement,” under the terms of which one J. W. Mcllaith, trading as Jack’s Garage, executed a lease to the plaintiff for the car in question, a LaSalle sedan. The defendant points out that this was not a conditional sales agreement; that it was exactly as designated, a lease, for the use of an automobile to be returned to the lessor upon termination of the lease. The contention of the defendant is that under this lease, the plaintiff would never, acquire ownership of the car.

According to Stern & Co. v. Paul et al., 96 Pa. Super. 112, cited by the defendant:

“The distinction between a bailment and a conditional sale is difficult to define in general terms and the mere use of technical words will not prevent a court from looking at the real nature of the transaction and declaring that an agreement purporting to be a bailment is really a conditional sale.”

It appears, therefore, that a Pennsylvania court would not be prevented from looking at the real nature of the transaction and declaring that an agreement is a conditional bill of sale even though it is designated as a lease. It is conceivable that a person may loan his automobile to another on a particular rental basis for a specified term, for a definite rent reserved, payable in installments. It should be noted, however, that 'the defendant Automobile Finance Co. was not engaged in the business of lending cars, but on the contrary, was engaged in the business of financing the purchase of cars; its business being the obtaining of interest or profit on its financial investment. It will also be noted that the so-called “lease agreement,” signed by J. W. Mcllaith, was on a form prepared by the defendant Automobile Finance Co., and in this form Mr. Mcllaith is designated as a dealer, and in detailing the transaction, space is provided for giving the list price and not for rent reserved. Space is provided for finance charge in the sum of $136.02, and space is provided for “allowance on car traded in.” To say the least, it would be most unusual for the renter of an automobile to trade in a car to have the privilege of renting an automobile, if that were the intention of the parties.

The court makes these observations, not for the purpose of passing final judgment upon the nature of this document used in this case, but merely to indicate that there are questions of fact to he determined by a trial before a jury.

For these reasons, it is the opinion of the court that the matters in issue are contradicted, and are capable of different interpretations as the final evidence may indicate. Therefore, they are not such matters as the court may dispose of on a motion.

Accordingly, the defendant’s motion to set aside the service of summons as to the defendant Automobile Finance Co. will be denied, and the motion to strike the complaint as to the defendant Credit Corporation will be granted, and the motion to strike the complaint as to the defendant Wilber D. Janes will he denied. An order will be entered accordingly.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CELIA KRAMERMAN, PETITIONER, v. JACK SIMON, ASSOCIATED INDEMNITY COMPANY OF NEW YORK, RESPONDENT.
    Decided April 15, 1942.
    For the petitioner, Harry Cohn.

    For the respondent, Edwin Joseph O'Brien.

   Celia Kramerman, the petitioner, was sworn and she testified that she was forty-nine years old, the widow of the decedent and was living with him at the time of his death. It was stipulated that the decedent made $35 a week.

Samuel Lakoff, the next witness produced on behalf of the petitioner, testified that he was a carpenter and had been working with the decedent on the job in question for a week or a week and a half and that it was a remodeling job. He testified that decedent was doing carpenter work and that he was sawing boards and the witness was nailing the boards. That the work was being done on top of the roof of the extension of the house. He stated that the lumber was 1 x 10 ship laths and that was a warm day though he could not tell how warm it was. He testified that the decedent and he had gone to work about eight o’clock in the morning and that the decedent had done various carpenter work, such as hammering, sawing, planing and nothing else; that Mr. Simon, the boss, was downstairs handing up the wood to them and that when the wood was handed up to the carpenters they would slide it along over the edge of the roof and the decedent would. then saw it into small pieces. A picture was offered in evidence and marked Exhibit P-1, which showed the place where they were working at the time in question. This witness said the pieces of wood were about six foot and that they weighed about five or six pounds or maybe a little more. He stated that none of the boards before they were sawed were over twelve feet long. That they were about % by 10 inches by 12 feet long and Simon would pass the boards up to the witness on the extension and that they did not lift the boards but just slid them along.

This witness testified that about five or eight minutes after the time he last saw Kramerman, who had not complained to him of any distress or exhibited any illness, that the witness went inside and found Kramerman lying on the floor of a room in the house with his hand under his head and with no tools or material of any kind anywhere near them. All attempt to revive him was futile and the man was pronounced dead.

Upon cross-examination this witness stated he did not know whether the decedent ever went down the ladder that morning or not. He described the decedent’s position in the room, stating that he was lying with his hand under his head as though he were taking a nap and that decedent had no work to be done in that room.

The petitioner next produced Allwin P. Schaefer, who stated that he was doing sheet metal work on the job in question; that he saw the decedent working that morning on the roof; that he does not know how the decedent went up and down and that it was a warm day. He said that there was nothing unusual that he could think of or recall. He was there when they went in and found the man lying on the floor dead. He said he was in the yard when he heard Sam Lakoif call for Jack Simon and that Simon not answering that Lakoff called him, the witness, and told him that Prank had fainted or something, so that the witness ran up the ladder and found decedent in the corner of the room resting with his head on his hand and that he was lying down as though he were sleeping, relaxing. He tried to bring him to but was unable to.

William Wiener was next introduced as a witness on behalf of the petitioner and gave the temperature and humidity, as well as the prevailing winds, at 7 a. m., noon, 2 p. m., as recorded by the machine on top of the Kresge Department Store in the City of Newark.

On cross-examination this witness stated he did not know what the temperature or humidity was up in Maplewood but did not think it varied more than a degree or two.

Elmer Schultz was the next witness produced on behalf of the petitioner and testified he was a police officer in Maple-wood and that he received a call at approximately 12:25 p. m. That when he came to the house where decedent had died he found the dead man lying in a bedroom upstairs on the second floor and his face was pale and a little bluish but there was no pulse. That Sam Lakoff and Jack Simon were the only ones that he could recall being present at the time.

The next witness produced was one Jack Simon, the respondent, called by the petitioner, who stated that when he left the job that morning it was about ten minutes to twelve and he told the decedent that he was going to lunch. He stated that some weeks before while decedent was working on a job with all little boards, about 1x6 pine, that all of a sudden he stretched out and fainted away. This he thought occurred about four or five weeks prior to his death.

Dr. J. Allen Yager, practicing since 1933 in this state, was next produced as a witness and upon the basis of a hypothetical question attempted to connect the death with his work that morning.

The death certificate, which was offered in evidence by the petitioner, showed that the decedent died of “cardiac failure coronary thrombosis.” It further stated that the disease or injury had no relation to decedent’s work.

The respondent produced Edgar J. Salzman, who is meteorologist for the United States Government and in charge of the official government weather station at the Newark, New Jersey, airport. His records of the official weather, humidity, and temperature and prevailing winds data were introduced in evidence, as was also the official weather report the same day for New York City.

Dr. Irving Willnex was next produced on behalf of the respondent and stated that there was no possibility of anybody examining a dead man and being able to tell definitely whether he had died from a heart attack (and if so, what kind of a heart attack), a stroke or many other conditions. He stated that an autopsy was necessary to determine the exact cause of death.

Dr. Jerome Kaufman, who is a heart specialist and instructor in cardiology, testified to a like effect and stated that in his opinion the man’s death had absolutely nothing to do with his employment or his work on that day.

Dr. Leon Lewis, a clinical pathologist, testified in like manner and also stated that in his opinion that the decedent’s death had no causal relationship whatsoever with his employment or his work on that day.

Dr. George P. Olcott was then produced by the petitioner. It had been stipulated that Dr. Olcott would be brought in as a fact witness and with that understanding the respondent went ahead with his testimony.

At the conclusion of the respondent’s case Dr. George P. Olcott was produced and he was asked what he meant by setting forth at the bottom of the certificate that the man’s death had no relationship to his work or employment, and the doctor answered his idea and interpretation was that he meant the man had not died of an occupational disease. This doctor also stated that the reason he gave the cause of death as he did was that in his opinion it was the probable cause of his death.

As the result of the testimony adduced before me and the stipulation of fact and the evidence introduced, I do find as a fact that the petitioner has failed to prove by a preponderance of the evidence that decedent died as the result of an accident arising out of and in the course of his employment with respondent. The petitioner having failed to meet the burden of proving her case by a preponderance of the evidence the petition will be dismissed and judgment entered in favor of the respondent.

John C. Wegneb,

Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    IRVINGTON AUTO COMPANY, PETITIONER, v. TOWN OF IRVINGTON, RESPONDENT.
    Decided April 21, 1942.
    Bor the petitioner, Martin M. Kurtz.

    Bor the respondent, William Newman.

   Quinn, President.

A personal property assessment was levied by respondent against petitioner, for the year 1940, in the sum of $3,800. This was reduced by the Essex County Board of Taxation to $2,900. The taxpaj^er seeks a' cancellation of the assessment in its entirety upon the ground that it owned no property on October 1st, 1939, the assessing date. It shows, without controversion, that it was not incorporated until October 2d, 1939. Nothing has been adduced by the respondent which would' furnish any factual basis for its assertion that petitioner was a de facto corporation on October 1st, so that its ownership, as such entitj', of personalty situated in the respondent taxing district, Would support the present assessment. It is not shown that there was any effort to organize a corporation, under the law, prior to October 2d, 1939, and that any corporate functions were assumed and exercised by the petitioner prior to its incorporation, de jure. See Vanneman v. Young (Court of Errors and Appeals, 1890), 52 N. J. L. 403; 20 Atl. Rep. 53.

So far as petitioner is concerned, therefore, it is entitled to an order setting aside the assessment as to itself, in order to be protected from the effect of R. 8. 54:4-l; N, J. S. A. 54:4-1, providing that a personal property assessment is the personal liability of the taxpayer. It does not follow, however, that the assessment should be vacated in ioto. It appears that the assessment in question was intended to apply to certain motor vehicles which were situated at 1320 Springfield Avenue, in the respondent taxing district, on October 1st, 1939. That property was, and continues to be subject to the lien of the tax assessed. An assessment cannot be invalidated because listed or assessed in the name of one not the owner thereof, or because of any irregularity in the assessment, if the property in question was actually subject to taxation. R. 8. 54:4-54, 54:4-58 and 54:4-59; N. J. S. A. 54:4-54, 54:4-58 and 54:4-59. Tennant v. State Board of Taxes and Assessment (Court of Errors and Appeals, 1921), 95 N. J. L. 465; Ridgewood Elks Holding Co. v. Village of Ridgewood (Court of Errors and Appeals, 1941), 127 Id. 295; 22 Atl. Rep. (2d) 266. The making of the assessment here in question, accordingly, though listed against a corporation now appearing not to have been the owner thereof on the assessing; date, is sufficiently availing to result in the present subsistence of a legal and effective assessment against whatever person or corporation did own any motor vehicles or other personal property at the location described, on October 1st, 1939. If the property was stock in trade, the valuation depends upon the average amount thereof owned by the taxpayer within the taxing district during the year prior to October 1st, 1939. R. 8. 54:4-11; N. J. S. A. 54:4-11.

If it chooses, respondent may proceed before this board, within a reasonable time, on notice to the true owner of the property, to correct the name of the taxpayer assessed. Union Terminal Cold Storage Co. v. Jersey City, New Jersey Tax Reports, 1912-1934, p. 115; Tide Water Associated Oil Co. v. City of Jersey City, New Jersey Tax Reports, 1934-1939, p. 721. Jurisdiction over the assessment will be retained for that purpose. Petitioner, however, is entitled to judgment forthwith, cancelling the assessment as to it, only.

So ordered.


author: Wolbbk, C. C. J.

text:
    ROY S. HULL, ADMINISTRATOR OF THE ESTATE OF ROY S. HULL, Jr., DECEASED, v. HERCULES POWDER COMPANY, A CORPORATION OF THE STATE OF DELAWARE, CLARENCE A. PLUME AND WILLIAM COSTELLO. ROY S. HULL, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ROY S. HULL, Jr., DECEASED, v. HERCULES POWDER COMPANY, A CORPORATION OF THE STATE OF DELAWARE, CLARENCE A. PLUME AND WILLIAM COSTELLO.
    Decided January 13, 1942.
    For the plaintiff, Milford Salny.

    For the defendants, King & Vogt,

   Wolbbk, C. C. J.

This matter comes before me on a motion of the defendant Hercules Powder Company to strike the complaint in both cases on the following grounds:

1. The rights and remedy of the plaintiff in the .above causes are controlled and determined by the Workmen’s Compensation Act, B. S. 34:15-1, et seq.; N. J. S. A. 34:15-1, et seq. .

2. Decedent, Koy S. Hull, Jr., accepted the benefits of B. S. 34:15-1, et seq.; N. J. S. A. 34:15-1, et seq., and this plaintiff is bound by and succeeds only to the rights of decerdent, Eoy S. Hull, Jr.

3. The complaint does not set forth a legal canse of action against this defendant.

The third ground urged by the defendant must be disregarded under the rule and decision of the Supreme Court. Rule 43 and Dunn v. Chernewski, 101 N. J. L. 27; 127 Atl. Rep. 338 (Supreme Court, 1924, Kalisch, J.).

The general administrator’s suit seeks damages for the pain and suffering sustained by Eoy S. Hull, Jr., and the expenditures incurred on his behalf from September 12th, 1940, to the date of his death March 14th, 1941.

The suit of the administrator ad prosequendum is brought under the Death Act, R. 8. 2:47-1; N. J. S. A. 2:47-1, for the benefit of the next of kin of the decedent.

The complaint in each case alleges that Eoy S. Hull, Jr., was an employee of the defendant Hercules Powder Company; that an explosion occurred in the defendant’s plant on September 12th, 1940 : and that said Eoy S. Hull, Jr., was injured in said explosion, and removed to Dover General Hospital, where he died on March 14th, 1941.

In paragraph 7 of the first count of each complaint, plaintiff alleges that when the said explosion occurred on September 12th, 1940, the said defendant Hercules Powder Company did not exercise due care in the selection of physicians to treat its employee, the said Eoy S. Hull, Jr., injured bv said explosion.

The second and third counts of each complaint are against other defendants.

In its brief, the defendant sets forth that a formal petition was filed May 24th, 1941, with the Hew Jersey Department of Labor, Workmen’s Compensation Bureau, Claim Ho. 55017, wherein the defendant was petitioner and Eoy S. Hull, Sr., father, and Agnes P. Hull, mother of decedent, were respondents; that on June 17th, 1941, an answer was filed by respondents which did not dispute or deny any of the allegations of the petition, but stated:

“Eespondents allege that the death of their son, Eoy Stewart Hull, Jr., resulted from a cause which intervened after the accident, for which the Hercules Powder Company and others are responsible to decedent’s administrator in damages; and -further, that the cause of action arising therefrom is not within the scope of the Workmen’s Compensation Act.”

The summonses in the present suits in the New Jersey Supreme Court were tested June 30th, 1941.

On October 23d, 1941, motions to continue the compensation proceedings until the determination of the present law actions, and to dismiss the petition, were denied, whereupon-respondent’s attorney withdrew from further participation in the compensation proceedings. Defendant then proceeded with the hearing and the Deputy Commissioner entered a finding of fact and determination that deceased was an employee of the Hercules Powder Company on September 12th, 1940; that said accident arose out of and in the course of decedent’s employment by Hercules Powder Company; and that decedent died on March 14th, 1941, as a result of the injuries so sustained in the course of his employment.

• The complaints in these law actions do not aver that the contract of hiring contained any express statement in writing, pursuant to B. 3. 34:15-9; N. J. S. A. 34:15-9, that the Workmen’s Compensation Act was not intended to apply, nor that any written notice to that effect was given.

The provisions of the Workmen’s Compensation Act shall apply to any claim for the death of an employee arising under the Death by Wrongful Act Statute (B. 8. 2:47-l; N. J. S. A. 2:47-1) and bind his personal representatives and next of kin as well as the employer. B. 8. 34:15-8; N. J. S. A. 34:15-8.

The decedent, if he had suffered an injury not resulting in death by accident arising out of and in the course of his employment, would have been limited to the recovery of compensation provided for in the Workmen’s Compensation Act., and by the procedure and in the form provided therein, and he could not have brought suit for such injury in disregard of that act. In such a case, the rights and remedies provided by the Compensation Act are substituted for those provided by the Death Act. Gregutis v. Waclark Wire Works, 86 N. J. L. 610; 92 Atl. Rep. 354 (1914, Trenchard, J.)

Defendant attaches to his brief a finding of fact and determination of the Deputy Commissioner of the Workmen’s Compensation Bureau of our Department of Labor, dated December 6th, 1911, and urges that this judgment of the .Bureau is res judicata; that it is final and conclusive as to all questions of law and of fact comprehended by the determination, including those involving jurisdiction, and the light to compensation. Drake v. C. V. Hill & Co., 117 N. J. L. 290, 292; 187 Atl. Rep. 637 (1936, Heher, J.), and Ferguson v. Seaman, 119 N. J. L. 575, 580; 197 Atl. Rep. 245 (1937, Heher, J.).

It is well settled that a finding and determination in the Bureau is essentially a final judgment, and may properly be pleaded as a basis for the doctrine of res judicata. Mangani v. Hydro, Inc., 119 N. J. L. 71; 194 Atl. Rep. 264 (1937, Wells, J.); Staubach v. Cities Service Oil Co., 126 N. J. L. 480; 19 Atl. Rep. (2d) 882 (Supreme Court, 1941, Perskie J.).

It is well settled law that on a motion to strike a complain!, facts well pleaded therein and all proper inferences to be drawn therefrom are to be treated as concededly true. Staubach v. Cities Service Oil Co., supra.

The allegations in plaintiff’s complaints do not seek to set forth a cause of action arising under the Workmen’s Compensation Act, but are based upon the premise that when the explosion occurred, the defendant did not exercise due care in the selection of physicians to treat its employee, the said Boy S. Hull, Jr., injured by said explosion.

To sustain his contention that the complaint sets forth an independent cause of action, plaintiff relies on the following cases: Denes v. R. M. Hollingshead Co., 7 N. J. Mis. R. 39; 145 Atl. Rep. 321 (Camden Circuit Court, 1928, Donges, J.); Tutino v. Ford Motor Co., 111 N. J. L. 435; 168 Atl. Rep. 749 (1933, Bodine, J.); McDonough v. Sears, Roebuck & Co., 127 N. J. L. 158; 21 Atl. Rep. (2d) 314 (Supreme Court, 1941, Heher, J.).

In the Denes ease the then Circuit Court Judge Donges, now Supreme Court Justice, denied a motion to strike the complaint because it alleged a set of facts that the condition complained of was not the result of accident, but the result of an entirely different cause, namely negligence in treatment.

It is not necessary for me in this inquiry to determine whether the Denes case has been overruled by the later Tutino case, because the present case does not deal with any question of negligent treatment for which the defendant Hercules Powder Company is sought to be held liable.

In the Tutino case the plaintiff recovered damages for the loss of an eye in a common law action. At the time of the accident he was employed as a machinist. He was drilling a hole in some concrete when a particle entered his left eye. He was treated in first aid rooms established by the defendant and was attended by nurses and a physician also in its employ. The basis of the action was the improper manner in which the defendant had performed its duty to furnish proper medical and surgical treatment, and because of the lack of skill and training of its employees. The court said the recovery could only be had for injuries not arising out of and in the course of the employment. The proofs tended to show that the employees of defendant improperly and in a negligent manner removed the concrete imbedded in the eye, the nurses and not the physician probing in the eye) contrary to good medical practice. The physician instructed them so to do.

Mr. Justice Bódine adopted the test of causal connection approved by Mr. Justice Swayze in Newcomb v. Albertson, 85 N. J. L. 435; 89 Atl. Rep. 928 (Supreme Court, 1914), based on what Lord Loreburn said in the House of Lords in Clover, Clayton & Co., Ltd., v. Hughes (1910), A. C. 242, a ease arising under the English statute:

“It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes' without which the injury which actually followed would not have followed.”

The theory of the Tutino case and the one on which it was sent to the jury was that the causal connection between the injury to the eye and the resulting loss thereof was due to the malpractice of the physician and nurses employed by the defendant, and that therefore there was an independent injury for which there could be‘recovery.

Mr. Justice Bodine also adopted the rule laid down in 39 C. J. 244:

“If the acts of the nurses and physician employed by the ' defendant were of such a kind and character as would break the causal connection between the accident and the resulting injury the plaintiff’s right of recovery must be predicated either upon a common law action due to some failure of a duty arising out of or in the course of the employment for which the compensation under the statute is the exclusive remedy, or because the defendant is liable for the malpractice of the doctors and nurses employed by it. Usually one employing doctors and nurses to attend to the needs of employees is held merely to the duty of exercising reasonable (¡are in the selection.”

It is significant that Mr. Justice Bodine (at p. 438) said:

“There is nothing in the record before us to indicate that the defendant was negligent in the selection of either the doctor or the nurses, ox in anything it did in providing first aid to the injured employe/ The doctor in charge had full control over the nurses who received directions from no one else. The plaintiff’s injuries either arose out of and in the course of his employment, or were due to acts for which the defendant was not responsible and for which the doctor and nurses employed might perhaps be called upon to answer.”

Mr. Justice Bodine also relied upon the ease of Laubheim v. Netherland Steamship Co., 107 N. Y. 228, where Judge Finch, in a case where the defendant was obliged to furnish a physician, said:

“It is responsible solely for its own negligence, and not for that of the surgeon employed. In performing such duty, it is bound1 only to the exercise of reasonable care and diligence, and is not compelled to select and employ the highest skill and longest experience. There was no evidence in this case that the defendant was careless or negligent in its choice.”

It is interesting to note that the reversal of the judgment in the Tutino case was by a vote of nine to six.

In McDonough v. Sears, Roebuck & Co., supra, the point in question was whether an accidental injury suffered by an employee of prosecutor while undergoing hospital treatment for an injury conceded!}' within article 2 of the Workmen's Compensation Act is also compensable thereunder as a consequent of the original industrial mishap. There the first accident occurred on March 30th, 1937. It resulted in the amputation of the employee’s left index finger. On April 14th, while still convalescing at the hospital, an alcohol dressing of the injured member ignited when he struck a match to light a cigarette, and thp resultant burns were so severe as to require the amputation of the remaining fingers and the thumb. In that case Mr. Justice Heher said that in order for the second injury to be compensable,

“It is yet requisite that there be a chain of physical causation between the industrial accident and the injury. The chain of causation must be continuous. If it be broken by an intervening independent cause, the industrial mishap is deemed in law causa remota as regards the new injuiy. The essential relationship does not exist unless the accident be a proximate contributing cause of the injury. The statute comprehends only such disability as ensues from an accident arising out of and in the course of the employment. This provision is not to be extended beyond its fair implications. The employer is chargeable with the direct consequences of the accident and not with.those only remotely flowing therefrom. In short, the inquiry is whether the injury is reasonably attributable to a proximate cause set in motion by the accident rather than by some other agency.”

He cites, among other cases, Flanagan v. Charles E. Green & Son, 121 N. J. L. 327; 2 Atl. Rep. (2d) 180 (Supreme Court, 1928, Case, J.); affirmed, 122 N. J. L. 424 ; 5 Atl. Rep. (2d) 742 (1939, P. C.). In that case the proofs showed that after the accident, prosecutor took charge of the workman and sent him to the physician, who caused him to be placed in the hospital, where the injury occurred. The doctors, on behalf of the prosecutor, took charge of treatment, and the cause of the injury was the act by the hospital nurses of changing the sheets as an incident to the treatment of the fractured femur about two weeks after the original accident. The court held that the second injury was directly attributable to the first. It came in the immediate sequence of events; There was no contributing factor outside of the acts which flowed from and were made necessary by the leg injury. The changing of sheets is so essential a part of adequate hospitalization as to be routine in every hospital. The arm injury was so incidental to the medical and Surgical treatment afforded by the employer as to constitute an injury arising out of and in the course of the employment within the meaning of the statute.

The McDonough case discusses Dunham v. Clare (1902), K. B. 292 (Collins, M. R.), from which the defendant herein makes quotation. Boiled down, the Master of the Rolls said:

“The only question to be considered is: ‘Did the death or incapacity result from the injury ?’ ”

In the McDonough case Mr. Justice Heher (at p. 163) said:

“The damage here is in this respect clearly distinguishable from the consequences of medical or surgical treatment of a compensable injury. Such treatment does not ordinarily constitute a novus actus interveniens; there is a direct causal link between the industrial accident and the incapacity flowing from medical or surgical measures to effect rehabilitation. * * * Mor is negligence in the giving of such treatment a differentiating factor. Flanagan v. Charles E. Green & Son, supra; 71 C. J. 641, et seg.”

Since the complaints set forth facts which show a new intervening act of the employer, independent of the Workmen’s Compensation Act, I am of the opinion that the complaints under consideration must stand, unless barred by the rule of res judicata.

That defense, however, is a plea in bar; or a plea of estoppel by record, which must be pleaded by way of answer. 34 C. J. 1057, § 1493.

The defense of res judicata may be raised by demurrer, but only where the fact and the nature of the prior adjudication appear on the face of the pleadings. Where the defense of res judicata is raised by demurrer (now by motion to strike out under Supreme Court rule 40), the court is limited to the facts disclosed by the complaint, although it may have other sources of information. 34 C. J. 1057, § 1494.

In Staubach v. Cities Service Oil Co,, supra, Mr. Justice Perskie, relying on Mangani v. Hydro, Inc., supra, held that the finding and determination of the Workmen’s Compensation Bureau may properly be pleaded as the basis for the application of the doctrine of res judicata, but did not decide the question.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK D’AMICO, PETITIONER, v. MIDDLESEX DRESS CORPORATION AND NEW JERSEY MANUFACTURER’S CASUALTY INSURANCE CO., A CORPORATION, RESPONDENT.
    Decided April 1, 1942.
    Dor the petitioner, David ■Roslcein.

    Dor the respondent, George E. Meredith (by Walter A. Hubley).

   The decedent, Mary D’Amico, was in the employ of the respondent for about three years prior to June 5th, .1939. During this time, it appears that although she occasionally lost time from work, she nevertheless satisfactorily performed the usual tasks required of her employment. In addition to that work during the day time, the decedent also performed the usual family household tasks as wife and mother. However, she was not altogether free from physical infirmity and the testimony indicates that the decedent had been under the cafe of one Dr. Joseph Schenk from time to time on and after 1931. The occasions for medical treatment were not frequent and were rendered for various conditions, none of which bear relationship to this case, except one. During the manj1- years as her family physician, Dr. Schenk testified that he found Mrs. D’Amico to be afflicted with a chronic rheumatic valvular heart disease. Nevertheless and despite this heart condition, the decedent pursued her occupational duties in a capable manner and to the apparent satisfaction of her employer.

On June 5th, 1939, the decedent was in the plant of the respondent on the second floor of the building. She had just finished eating her lunch on the employer’s premises, and was about to place some papers in a waste basket, and get a drink of water. She turned away from a fellow worker and apparently proceeded to descend a flight of stairs, also within the premises of the respondent, when suddenly screams and yells were heard from the decedent and she was next seen, shortly thereafter, lying prostrate at the bottom of the staircase. Fellow workers who immediately went to her aid found her in considerable pain, holding her head and moaning. Nor did she respond to any questions put by her co-workers.

An ambulance was called and she was taken to Muhlenberg Hospital, Plainfield, where a routine physical examination was made on admission. The hospital records indicate that her pulse rate was 94, regular, blood pressure 105/70, respiration 24 with a deep character, nutrition and other factors good. She appeared in a moderate amount of pain, didn't seem to be very co-operative, and was shaking from side to side and stated that she was unable to control or stop the shaking. External physical examination indicated that her right knee was slightly swollen and that the upper right abdominal reflex was absent. The patient complained of headaches and said that she was dizzy. The decedent was at the hospital until June 10th, 1939, when she was discharged and was returned to her home. Dr. Joseph Schenk visited her on that date and the decedent complained of multiple pains and aches of the body. These apparently were due to the extensive bruises suffered by her and were evidenced by black and blue areas over and above the right knee and the front of the right hip. He also found that her left eye was closed and that her head moved from side to side in a painful and sore manner. This doctor treated the decedent until about July 21st following which he did not see her again for several weeks until she was admitted to St. Peter’s Hospital, New Brunswick, on August 1st. At that time the decedent presented symptoms of an enlarged spleen, fever, -with a history of chills, aching sensation of the entire body as well as symptoms of petechia. She was also found to be suffering from a general weakness of the muscles and joints of the body as a whole. Dr. Schenk made a tentative diagnosis of sub-acute bacterial endocarditis, before her admission to St. Peter’s Hospital which was confirmed at that institution. He ■continued to treat the decedent from August 1st to September 16th at the hospital and thereafter to September 23d when she died of sub-acute bacterial endocarditis.

It was Dr. Schenk’s opinion that between the date of the accident and August 1st (date of her admission to the second hospital) during which time he was treating the decedent for the injurious effects of the accident of June 10th, she was not in any condition to go to work. She was convalescing and at the best, all she was also to do were some light house duties. During this recuperative period, the decedent was confined to bed for about four or five weeks. It is significant that prior to her second hospital admission and particularly on July 1st, 1939, when Dr. Schenk had occasion to examine the decedent, he found that she exhibited a normal temperature and displayed no apparent symptoms of bacterial infection. Similarly on July 21st when he again examined her there were no symptoms of endocarditis. However^ on August 1st there was presented the full picture of that condition.

There also testified on behalf of the petitioner Dr. Harold Pittis, Dr. Sidney Smith, Dr. Edna Thompson and Dr. Irving Applebaum. Dr. Smith, the resident physician at St. Peter’s Hospital when the decedent was admitted there on August 1st, 1939, testified that he made a diagnosis of sub-acute bacterial endocarditis. This condition, in his opinion, was causally related to the accident and trauma of June 10th,. 1939. He explained that the chronic rheumatic valvular heart disease of the decedent rendered that area of her body weakened and susceptible to infection. Following the accident, her physical resistance was lowered by the effects of the trauma to such an extent, that, coupled with the underlying weakened heart condition, the focus of infection, ever present in every person, sought out the vulnerable area, with the resultant sub-acute bacterial endocarditis which permeated her blood stream and eventually caused her death. Dr. Applebaum, a specialist in diseases of the chest, heart and lungs, testified that it was his opinion that the decedent, suffering from a chronic heart disease of long standing, was subjected to a lower physical resistance due to the effects of the injuries caused by the accident. By reason of this lowered resistance, she was rendered more susceptible to and did contract a bacterial infection of the valves of her previously diseased heart. He pointed out that this decedent, not being a healthy woman at the time of the accident, had less physical reserve to ward off infection than a person with normal health. Thus the picture was presented, particularly during her period of convalescence from the moderately severe injury which she suffered, of a still lowered resistance which allowed the infectious process to set in and progress. He was also of the opinion that the decedent during the period of convalescence was weaker than she was before the accident and unable to ward off the ravages of the infection which rapidly progressed and resulted in her death on September 23d. Thus Dr. Applebaum found a causal relationship between the trauma of June 10th, the lowered resistance which ensued, and the sub-acute bacterial endocarditis which caused her death.

On behalf of the respondent there appeared Dr. Joseph Schenk, Dr. Jack Blumberg, Dr. Andrew C. Ruoff, Dr. John H. Rowland, Dr. Asher Yaguda and Dr. J. Allen Yager. The respondent’s witnesses were of the opinion that there was no causal relationship between the trauma of June 10th, 1939, and her subsequent death of September 23d, 1939, denying that there was either a direct or indirect relationship between these two events. The theory of the petitioner’s case as I view it, .is not that the trauma directly caused the sub-acute bacterial endocarditis infection, but rather that the trauma of the accident and its painful sequela superimposed upon a person with a chronic heart disease, so lowered the resistance of the victim that she thereby fell easy prey to the infectious process that developed. On the other hand, the respondent’s medical witnesses contend that the resistance of the decedent following the accident was no lower than it was prior to that occurrence and went so far as to suggest that there was an improved or greater resistance after the fall. Therefore, they were of the opinion that the bacterial infection which caused her death was not related causally or otherwise to the accident.

I am thus called upon to resolve a sharp conflict of medical opinion. The applicable rule as enunciated by the adjudicated cases is that there be shown a “causal relationship” between the work or accident and the resulting disability or death in order that the accident be deemed compensable. Ciecwirz v. Public Service Electric and Gas Co., 24 Atl. Rep. (2d) 394. The test of causal connection, as approved by Mr. Justice Swa3rze in Newcomb v. Albertson, 85 N. J. L. 435; 89 Atl. Rep. 928, is:

“It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed.”

To the same effect are the rulings in Tutino v. Ford Motor Co., 111 N. J. L. 435; 168 Atl. Rep. 749, and Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396.

From a careful consideration of all the testimony adduced, I am satisfied that the decedent suffered a fairly severe trauma when she was' precipitated down the flight of stairs at her employer’s premises. Witness the one uncontradicted testimony that she was found in considerable pain, moaning and evidently injured to such an extent that she was unable to speak and had to at once be removed to a hospital in an ambulance. Furthermore, the injuries disclosed on physical examination at the hospital and her confinement there for upwards of five days and subsequent confinement and treatment at home until her second admission to a hospital a short time later support such a conclusion. That this woman was in a weakened physical condition prior to the accident is more or less conceded and fairly inferable from the medical attendance she required during the years preceded by the accident. Nor does there appear to be any dispute that she was afflicted with a chronic valvular heart disease of long standing. Viewing the uninterrupted sequence of events and the physical debility manifested by the decedent subsequent to the accident of June 10th, and up to the time of her death on September 23d, I am constrained to accept as a more logical and more reasonable hypothesis the medical theory advanced by the petitioner’s witnesses.

It is to be borne in mind that reasonable probability and not ultimate medical certainty is the test to be applied in compensation cases. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22; Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187. All that is required is that the claimed conclusion from the offered fact be a probable or a more probable hypothesis with reference to the possibility of other hypotheses. Beylus v. Wilkinson Gaddis Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873; Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198.

The testimony as a whole justifies the conclusion that this woman afflicted with an underlying heart condition which rendered her weak physically, suffered a further lowering of resistance as the result of the accidental injury in question. She was thus rendered more susceptible to bacterial infection which the evidence indicates developed in that vulnerable area of her body, the heart.

Accordingl]’, I find that from the testimony here presented that there was a causal relationship or a chain of causation between the accidental injuries suffered by the decedent on June 10th, the subsequent lowering of her physical resistance and the contraction by her of the infectious sub-acute bacterial endocarditis which caused her death on September 23d, 1939.

It is also my finding and conclusion that the accident arose out of and in the course of her employment. She having just concluded her lunch in the ambit of the place of her employment, a practice and custom of considerable standing evidently known to and acquiesced in by the employer. Accidental injuries suffered under such circumstances arise out of and in the course of the employment.

In accordance with the foregoing findings, judgment is hereby entered in favor of Prank D’Amico and against the respondent, Middlesex Dress Co. * * *

Stephen Lokbnz,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH MAZZARELLA, PETITIONER, v. COMPO-SITE, INC., RESPONDENT.
    Decided May 14, 1942.
    Por the petitioner, William A. Schilling.

    Por the respondent, George E. Meredith.

   It appears from the stipulated facts and the undisputed testimony that the petitioner met with an accident arising out of and in the course of his employment on July 19th, 1941, and that as a result of that accident the vision in the petitioner’s right eye was destroyed. The petitioner concededly has 100% loss of vision in the right eye.

The testimony further shows that prior to the accident the petitioner had defective .vision in his left or uninjured eye, and that he was granted a conditional driver’s license because of this visual defect in the year 1939.

Dr. Benjamin B. Adelman, who testified on behalf of the petitioner, found the vision of the left or uninjured eye to be 50% below normal on his first examination made on March 14th, 1942, but on a subsequent examination made on April 7th, 1942, the vision had improved approximately 50%. On the theory that binocular vision is more satisfactory than single vision brought about by the loss of the injured eye, the doctor was of the opinion that the petitioner was 40% totally and permanently disabled.

Dr. E. S. Sherman, the attending physician, was called by the respondent. He testified that the right or injured eye was industrially blind. In the left or uninjured eye the doctor found on his first examination a condition which he described as an “amblyopic eye” and that the vision was reduced to 20/120. On subsequent examinations he found the condition of the left eye had improved progressively to the point that his last test indicated a 20/30 Snellen reading, which, in the opinion of the witness, represented a 6% loss of vision.

Dr. Jack Blumberg was called by the respondent. He testified that the only loss of vision attributable to the accident was the total loss of vision in the right eye.

On this testimony the petitioner contends that he is entitled to disability in terms of permanent total disability, and seeks to j ustify his position on the authority of the case of Obser v. Combination Rubber Manufacturing Co., 42 N. J. L. J. 212; affirmed, 115 Atl. Rep. 138.

I am unable to agree with this viewpoint both from the particular facts of this case and from the more recent opinions of our upper courts.

Erorn the factual standpoint it seems inconceivable to me that a respondent should be held liable for any damage over and above the loss of the injured éye, particularly so when the opposite or uninjured eye was improved by virtue of circumstances resulting from the accident.

Prom the legal standpoint the case of Obser v. Combination Rubber Manufacturing Co., supra, has been expressly overuled because of amendments and changes in the statute recited at length in the case of Richardson v. Essex National Trunk and Bag Co., Inc., et al., 119 N. J. L. 47; 194 Atl. Rep. 622.

As stated in that opinion:

“Thus the legislature set out to, and did, eliminate the employer’s liability fox an accident unrelated to the employment of the injured person. We discern in its legislation of 1936 a clear intent not to impose any greater obligation upon an employer who hires or employs a person previously injured than if he had hired a person not so injured.” (See, also, Ruffin v. Albright, State Treasurer, et al., 121 N. J. L. 424; 3 Atl. Rep. (2d) 135.)

Nor can I agree with the petitioner’s contention that because a person with single vision does not see as well as one with binocular vision that he is entitled to compensation over and above the scheduled loss provided by R. S. 35 :15-12s. Presumably this factor was considered by the legislature in preparing the schedule of losses, and I am bound by the plainly stated provisions of the statute.

Prom the stipulations entered into and the testimony adduced I find that the petitioner is entitled to 15 weeks compensation for temporary disability at the rate of $13.33 per week, all of which has been paid by the respondent. I further find that the petitioner is entitled to 100 weeks compensation based on 100% loss of the right eye at the rate of $13.33 per week. Inasmuch as the respondent has heretofore paid 25 weeks of this allowance, there remains a balance of 75 weeks still due.

I allow Dr. Benjamin Adelman the sum of $40 for his examinations in preparation for trial and for his appearance and testimony in this matter, which allowance is to be assessed against the petitioner. Inasmuch as the respondent by notice duly served upon the petitioner’s attorney under date of November 25th, 1941, which was long before the trial date, agreed and offered to pay temporary compensation for 15 weeks and permanent compensation for 100 weeks in discharge of its obligation under the statute, I am unable to allow a counsel fee to the petitioner’s attorney in view of the provisions of R. 8. 34:15-64.

It is, therefore, * * * ordered that the respondent continue payments to the petitioner for the balance of 75 weeks provided by this order, and that the petition be dismissed.

Harry S. Medinets,

Deputy Commissioner.


author: Pabkeb, J.

text:
    BREX & BIELER, INC., v. ABRAHAM SACHS.
    Decided May 7, 1942.
    Before Justice Pabkeb, at chambers.

      For the motion, Harry Sommers.

   Pabkeb, J.

As a general rule, applications of this character are granted as of course. But the present one is unusual. It was made by mail, and the covering letter states that the suit was begun in 1933. Now, after over eight years of repose, defendánt having failed to answer, and plaintiff having on its part failed to “take advantage thereof before or at the term after such failure,” and apparently having failed to take out any rule to plead as contemplated by the statute, over a period in which the six year statute of limitations would have run, makes this application at this late day.

I consider that it comes too late. True, the statute itself fixes no time limit for taking out such a rule, but surely such an application should be made within a reasonable time, and a case should not remain hanging in the air indefinitely.

In Bowden v. Gillespie Co., 75 N. J. L. 296; 68 Atl. Rep. 238, under the old practice of serving summons without declaration or complaint annexed, the summons was not returned for over a year, and the Supreme Court vacated a rule permitting filing and service of the declaration more than a term after the return of the summons. In Zeek v. Rockaway Rolling Mills, 79 N. J. L. 123; 74 Atl. Rep. 442, the declaration was filed about three months after the return of the summons, and the court allowed'a rule to plead, on the ground that defendant had not moved for judgment of non-pros, and more than a term had not intervened.

In Wolf v. Stillman Co., 79 N. J. L. 284; 73 Atl. Rep. 446, the plaintiff failed to file a declaration for nearly two years after return of summons. The court said that under the common law rule, unless defendant took a judgment of non-pros, the declaration could be filed within a year, but not thereafter, and denied an application for leave to file it after almost two years.

These cases are not precisely on the present point, as here the complaint was annexed to the summons and of course filed in due season; but there is an obvious analogy. In the cited eases it was the duty of plaintiff to move by filing a declaration. In the case at bar it was the duty of the plaintiff to move by entering a default judgment to which it was entitled, at the term when the default occurred or the next term, and by the express language of the statute, plaintiff waived its rights to a judgment unless it obtained a rule, to plead. If plaintiff in the former cases was required to file a declaration within the year, by the same token it is the duty of a plaintiff who has omitted to take a default judgment in due season, to obtain and serve a rule to plead with reasonable promptitude. I need not undertake to lay down one year as a fixed period; it is quite enough for present purposes to hold that a delay of over eight years is altogether unreasonable and must be considered as an abandonment of the action. I am informed by one of the other justices that in a similar case he had allowed a rule to plead after the lapse of four years, but on motion by defendant, vacated it because of the delay.

The application is denied.


author: McG-kath, C. P. J.

text:
    Union County Court of Common Pleas.
    CLARENCE R. WADGE, PETITIONER-APPELLANT, v. CRESTWOOD ACRES, INC., RESPONDENT-APPELLEE.
    Decided January 5, 1942.
    For the petitioner-appellant, Samuel J. Marantz.

    For the respondent-appellee, Edwin Joseph O'Brien.

   McG-kath, C. P. J.

Petitioner was injured while working on a house owned by respondent, and his petition was dismissed below on the ground that he was an independent contractor. The basis of this decision is an alleged written contract between respondent as owner, and petitioner and another carpenter named Hagen, which writing recites that the two carpenters “agree to supply all labor necessary to complete the carpenter work except trim garage doors and finish floors work enumerated in the plans and specifications attached hereto and made a part hereof.”

No plans or specifications are attached, although the contract specifically provides that the work is to be done according to attached plans and specifications and also refers to “Plan 5.” Such a situation creates a latent ambiguity which may be explained by evidence dehors the record to show what plans and specifications were intended to be attached to the writing in order to make it complete, but such evidence can never be shown to show that the parties meant something else. If the writing is not explained or completed by proper legal evidence, it is unenforceable as a contract. Kupferschmidt v. Agricultural, &c., 80 N. J. L. 441; 78 Atl. Rep. 225; Moebus v. Collins, 85 N. J. L. 430; 89 Atl. Rep. 986.

No attempt has been made in the present case to complete the writing by showing what plans and specifications were intended as part thereof. On the contrary respondent undisputably never intended to use any plans and specifications, either those referred to in the “contract” or any others. There were some plans and specifications in existence which respondent had used in order to induce the F. II. A. to grant a construction loan on the proposed house but after the loan had been obtained, they were conveniently ignored by respondent, and the house was built to suit respondent’s convenience, in accordance with day-by-day instructions and corrections of Tony Colucci, the respondent’s president and superintendent. Colueci’s feeble excuse for not using these specifications on which the loan had been obtained is: “Nobody ever asked for specifications; the plans are so simple, there is enough information on there. It is not necessary to have a specification.” He also says no plans and specifications were submitted to the men when they figured the agreed price. Also it is admitted that no specifications were submitted to the men, so obviously there could not have been any “meeting of the minds” either on the plans and specifications referred to in the writing or any others, written or verbal. That specifications would have shown the details of construction if any had been produced was admitted; also, it was admitted that it is impossible to figure out what specifications would show if any had been produced. Despite this, no attempt was made to introduce evidence of what plans and specifications were intended in the writing and the court is completely ignorant of what would have been shown if any had been produced. There is some reference in the evidence to a plan, but none was introduced in evidence and there is no evidence that it was the plan referred to in the writing. In any event it was not complete and was not followed.

It is therefore clear that the alleged written contract must be considered as void for uncertainty, since the minds of the alleged contracting parties never met on any “attached plans and specifications.” Since the writing referred to “attached” plans and specifications and made them a part thereof, it could not be shown, in order to complete it, that some other and different specifications had been agreed upon (Kupferschmidt v. Agricultural, &c., supra) but none were ever agreed upon and the work was done according to Colueci’s daily instructions and occasional corrections. All the petitioner did was to work at his trade under the direction of Colucei in the same manner that any carpenter would do; petitioner never agreed to any completed plans or specifications, and these were never unfolded to him in a complete state, but only piece-meal as the work went along. Before the work went very far he was injured and had to quit working. What Hagen (his alleged partner) did afterwards could not bind petitioner since the “partnership” existed only by virtue of the written “contract” and the “contract” was void, but as a matter of fact Hagen quit before the job was finished and the house was completed by others under a contract with the respondent. Respondents position is, not that some other agreement was made, but that the petitioner and Hagen defaulted on the alleged written contract.

Of course, in any event, petitioner was not an independent contractor for when the written contract is seen to have been a nullity (and that even if it were valid, it had not been followed) the petitioner is shown to have been nothing more than a journeyman carpenter, working at his trade from day to day under the instructions of his employer' in the same manner that any carpenter would do. He had no control over the result nor over the methods of construction, for the owner was building the house to suit itself. What the result would finally look like or consist of when finally completed was never disclosed to him, much less agreed upon, and the record is barren of any evidence of what the respondent intended to build or finally did build. Of course, a skilled carpenter knows in a general way how to follow his trade according to the instructions of his employer but it is common knowledge that a house may assume innumerable shapes and sizes, and that there are numerous methods of construction and that what the result will be depends on the manner or method of construction. It can be a cheap job or a good one, plain or ornate, flimsy or sturdy, depending on how the owner wants it built, and the method of construction determines how many hours the workmen must put in, and what risks they shall ruii. All this was under control of respondent’s daily instructions and it is this control which determines the master and servant relationship. Errickson v. Schwiers, 108 N. J. L. 481; 158 Atl. Rep. 482; Essbee, &c., v. Greenhaus, 114 N. J. L. 492; 177 Atl. Rep. 562; Rojeski v. Pennington, &c., 118 N. J. L. 335; 192 Atl. Rep. 746; Brown v. Kremer, 124 N. J. L. 242; 11 Atl. Rep. (2d) 248. Bespondent could have put the men off the job if they had failed to carry out Colucci’s orders and would have no alternative if it wished the work done according to its instructions. True, other men were hired at the suggestion of respondent and for its convenience but they were not hired to carry out the void contract but to carry out Colucci’s orders; they were paid by respondent as the work went along, depending on the amount of work done; they were carried on the books of the respondent for Unemployment, Social Security and Workmen’s Compensation, although the “contract” did not purport to be a subcontract. Gerber v. Sherman, 120 N. J. L. 237; 198 Atl. Rep. 762. Bespondent would have carried petitioner and Hagen also for Workmen’s Compensation if they had been willing to pay for it.

It is true that where there is a valid contract the mere fact that the owner supervises the work for the purpose of seeing that the contract is carried out does not make the contract one of master and servant, but here the supervision was not for the purpose of seeing that the terms of a contract should be carried out but for the purpose of seeing that the work was done in violation of a contract (if any existed) or at least of seeing that it was done without reference to a written contract. It is perfectly obvious that respondent did not want any specifications to be used, and that it wanted the work done in the way that would be to its best advantage as a speculative builder, and that it intended to and did control the work and skill of petitioner for the purpose of building the kind of house it wanted and in the way it wanted it to be built, and not in the way petitioner would build it, nor in the way the E. H. A. expected it to be built. Even a layman knows that a speculative builder can build more cheaply if he builds to suit himself, instead of according to specifications which have been approved by the mortgagee, and that the methods of construction will be different.

Of course, for an employer to control a skilled workman it is not necessary to tell the workman how to drive each nail or saw each board. It is his skill which is controlled by the master’s instructions and which is necessarily exercised subject to the master’s instructions, when the master chooses to exercise them, in order to accomplish the desired result. The choice of methods here was the owner’s, not the petitioner’s. If a workman is an independent contractor merely because his skill enables him to work at his trade under the general orders of his employer, then no skilled tradesman could ever recover compensation.

To constitute a master and servant relation it is not necessary to have any particular method of payment. Toner v. International, &c., 113 N. J. L. 29; 172 Atl. Rep. 389; Brown v. Kremer, supra. Nor is it necessary to have any agreement to pay since the law implies reasonable payment. Essbee Amusement Corp. v. Greenhaus, supra. NTor is the method of hiring important. Essbee, &c., v. Greenhaus, supra.

The court below therefore had jurisdiction and the case will be remanded in accordance with Jayson v. P. R. R. Co., 101 N. J. L. 159; 127 Atl. Rep. 169. An order will be entered accordingly.


author: Bbown, C. C. J.

text:
    Hudson County Circuit Court.
    JOHN FAGLIARONE, PETITIONER, v. CONSOLIDATED FILM INDUSTRIES, INC., DEFENDANT.
    Decided May 25, 1942.
    For the petitioners, Pesin & Pesin.

    For the defendant, Child, Biker, Marsh & Shipman.

   Bbown, C. C. J.

The petitioner moves for an order directing arbitration proceedings between the petitioner and the defendant as provided in a written agreement made between the New York Printing Pressmen’s Union No. ol, I. P. P. & A. K., of N. A., of which the petitioner is a member and the above named defendant. The principal reason assigned for the arbitration is that the defendant employer in discharging the petitioner from his employment unjustly discriminated against the petitioner. The defendant contends if an order for arbitration is granted it should be- conditioned on the petitioner depositing security for costs. The parties have stipulated the facts upon which the motion is made. This stipulation contains admissions by both parties that the contract between Pressmen’s Union and the defendant corporation provided in section 10 thereof in part as follows:

“Any employee may be discharged for reasons satisfactory to the Firm. If the employee feels that he or she has been unjustly discriminated against, said employee shall have the right to have the matter arbitrated in accordance with the laws of the State of New Jersey. Copies of the Arbitration laws of the State of New Jersey shall be submitted to the Firm and the Union upon execution of this agreement. The cost of said arbitration, however, shall be borne by the losing party.”

R. S. 2 -AO-12; N. J. S. A. 2:40-12 provides for the making of an order by a judge of the Circuit Court for arbitration in cases falling within the specifications of the statute. The statute last referred to reads as follows:

“A party aggrieved by the failure, neglect or refusal of another to perform under a written agreement providing for arbitration, may petition a justice of the supreme court or judge of a circuit court for the county where either party resides, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days’ notice in writing of the application shall be served personally upon the party defaulting.”

The petitioner did not personally sign the agreement made between the Pressmen’s Union and the defendant, nevertheless, this court determines that upon the proof in this case the petitioner has a legal right to invoke the benefit of the statute. In the case of Brooklawn v. Brooklawn Housing Corp., 124 N. J. L. 73; 11 Atl. Rep. (2d) 83, mention is made of the rights of a third party beneficiary arising out of a contract executed between others. In that case as well as the cases cited therein there appears to be a distinction between the beneficiary who has a right of action under a contract and the one who has not. An incidental beneficiary might profit from the performance of the contract, but lie cannot enforce such performance by legal action. It is not enough that the plaintiff may be benefited by the performance of the contract, he can only maintain the action when the contract is made for his benefit. The rule is well-settled that before one not privy to a contract can maintain an action it must appear that the contract was made for his benefit and so intended. According to section 10 of the agreement between the Pressmen’s Union' and the defendant, the contract expressly grants the right of an employee to have arbitrated the question presented by the petitioner on his motion. It was evidently the expressed intention of the parties to the agreement that the third party petitioner should be granted the right of arbitration. See, also, Fryns et al. v. Fair Lawn Fur Dressing Co., 114 N. J. Eq. 462; 168 Atl. Rep. 862; Reutschler v. Missouri Railroad Co., 95 A. L. R. 1. There has been no cogent reason presented by the defendant requiring the petitioner to deposit security for costs. In the stipulation of facts it is agreed that the Pressmen’s Union, of which the petitioner was a member, never requested or demanded an arbitration of the justification for the discharge of the petitioner by the defendant although the petitioner requested the Union to demand such arbitration which the Union refused. The defendant argues on its motion that if the Union had demanded arbitration and did not succeed the Union would be able to pay the costs if a decision was rendered in favor of the defendant but that it is “at least doubtful if the employee is in a position to pay these costs if he should lose.” The defendant does not present any proof before this court, by stipulation or otherwise, that would warrant the conclusion arrived at by the defendant as to the financial responsibility of the petitioner. So far as the proof presented is concerned, as to financial responsibility, the defendant may or may not be able to pay costs if a decision is rendered in favor of the petitioner. The financial responsibility of persons as well as corporations is an inexorable process of fluctuation. Experience in human affairs in the United States during the past twenty-five years, and particularly at the present time, furnishes a great deal of proof to support this statement. The purpose of arbitration is to provide a summary and inexpensive method of settling disputes. To reqinre the petitioner to deposit security for costs would not be even-handed justice. It would amount to a determination that the rich and well-to-do, whether corporate or individual, could invoke the facilities of our courts in the arbitration of disputes while the poor and lowly would be deprived of this right. Section 10 of the agreement made between the defendant and the Pressmen’s Union provides that the cost of arbitration shall be borne by the losing party. The agreement does not require that security for costs should be deposited by either party before the arbitration is determined. The New Jersey statute on “arbitration and award;” R. S. 2:40-1; N. J. S. A. 2 :40-l and sections following do not require costs to be posted. Allowances for costs and counsel fees in any case must have statutory authority; El v. Toohey, 125 N. J. L. 150; 14 Atl. Rep. (2d) 531; Textileather Corp. v. American, &c., Insurance Co., 110 N. J. L. 483; 166 Atl. Rep. 214. Then again costs awarded to a client are the property of the attorney; Kristeller v. The First National Bank of Jersey City, 119 N. J. L. 570; 197 Atl. Rep. 17. Costs as well as counsel fees allowed in a case are in the nature of a penalty and the right to costs is a creature of the statute and dependent upon a statute in effect at the time judgment is signed and entered; Igoe Bros. v. National Surety Co., 112 N. J. L. 244; 169 Atl. Rep. 841; Friedlander v. Grand, 114 N. J. L. 548; 177 Atl. Rep. 892. There appears no reason in fact or in law requiring petitioner to deposit security for costs before an order for arbitration is allowed. The motion of the petitioner is granted without security for costs being first deposited.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA NIEMI, PETITIONER, v. THOMAS IRON CO., RESPONDENT.
    Decided April 23, 1942.
    For the petitioner, A. Milton Jacobs (David Roshein, of counsel).
    For the respondent, Cox & Walburg (Arthur F. Mead, of counsel).
   The only controversial issue here presented for determination is whether or not the death of William Niemi on the 5th day of May, 1938, resulted from an accident that arose out of and in the course of his employment with the respondent company. íjí í}í íjí íjí í¡í jJj #

The evidence disclosed that William Niemi, age 61, married, had been employed by the respondent at its mine in Wharton, New Jersey, as a stope-machine operator for a number of years. This machine operated by compressed air and the manual manipulation of the employee, was used to drill the rock and ore and employed the same principal as a jack hammer or pavement breaker. However, instead of exerting a downward force, the pressure was directed in an upward direction. It appears that the decedent at all times during his employment had performed his work in an efficient and satisfactory manner and in fact had been advanced in status to that of an A-l driller. Throughout his employment he appears to have been in good health and free from any illness or physical incapacity. On May 4th, 1938, at 10:00 p. if. he reported for -work as usual, on the night shift, at the iron mines of the respondent. The decedent proceeded with the performance of his customary work, which among other things, necessitated the use of the drill or stopermachine which weighed about 85 pounds, and which instrument was exhibited at the hearing in this cause. The testimony indicates that during the period from 10:00 p. m. until 2:00 A. m., when the decedent recessed his work for lunch, he bored approximately 18 feet in the stope or shaft where he was stationed. One Steve Lukatos, who was working on the same stope, testified that he and ISTiemi then descended a ladder to a lower level where both men ate their lunch, which consumed approximately 25 minutes to one-half hour. During this time the decedent appeared to have been conducting himself in his customary manner, and exhibited no outward signs of any unusual distress or illness. After finishing lunch, the decedent, preparatory to resuming his work, obtained two four-foot steel drills weighing about. 12 and 15 pounds each (according to the testimony of the foreman), which evidently were required for the work he was to perform, and with these drills in his hands he climbed the ladder, which was stationed at an incline of about 65 degrees, from the lower level to the stope where he was to work, in all, a distance of approximately 85 feet. After climbing the ladder as aforesaid, he was then required to walk or climb a distance of about 35 feet over a muck pile some six or seven feet high and which was inclined at a 35 degree angle, in order to reach the place where he was to resume work. It was indicated that it required some four or five minutes of climbing or walking by the decedent in order to reach this point from the lower level where he ate his lunch. The decedent also requested and obtained from Lukatos a starter drill and was seen by the latter to place same across his knees as the decedent took his station for work. His head lamp, when he reached the upper stope, was observed to be lighted.

From the testimony as well as the demonstrations had in court, it appears that in order for the drilling operation to be commenced, it would be necessary for the employee to lift the 85 pound stope drill, after first inserting therein a steel or bit. Moreover, upon the temporary cessation or suspension of drilling, the steel bit descended partially into the interior of the machine. It was also indicated that the employee could, where the height of the shaft permitted, conduct the drilling operation while seated on the spare drills or steels which he employed as a make-shift seat. According to the testimony, it was customary for the employees upon returning to their station after lunch to start drilling.

Thus it appears that the work on the stope was resumed shortly after the lunch period ended, and some five minutes or more later, Lukatos had occasion to shut off his drilling machine. Upon doing so he observed that there was no light or drilling noise emanating from the side of the muck pile where Niemi was supposed to be working about 15 or 20 feet away. He thereupon crossed over to investigate and found Niemi prostrated on the steel bars which he had evidently employed as a seat in connection with the drilling work. The decedent’s face was distorted and he was sprawled out on his hack and right side with his head thrown back and his right arm extended. There was some small quantity of blood found on the rocks or pieces of ore nearby and a small wound was seen on the right side of his head. The drilling machine was found lying some four or five feet from his head and his carbide lamp was unlighted, with the bottom thereof separated or removed from the top portion.

While there does not appear to be any eye witnesses to the activities of the decedent during the period that immediately preceded his collapse and death, the absence of the starting drill, which according to the statement (P-1 in evidence) had been handed him by Lukatos earlier, coupled with the testimony that upon temporary cessation of the operation of said machine, the drill retreats or descends into the interior of the air gun, as well as the other facts and circumstances adduced in evidence, justifies the conclusion that Niemi had, for a short period of time at least, resumed his regular work after returning from lunch. From the testimony as to the nature of his duties and my observation in court of the mechanism employed in connection therewith, I am of the opinion that the type of work in which the decedent was engaged was of a heavy and laborious character.

Shortly after its discovery, the decedent’s body was removed from the mine of the respondent and an autopsy was performed the same day by Dr. Hany Mutsehler, the Morris County medical examiner. His autopsy findings indicated that externally the decedent’s head exhibited abrasions in the right parietal region about 1% inches long and % of an inch wide. Dr. Mutsehler testified that in the course of the removal of the decedent’s brain he found evidence of a hemorrhage in that organ. A histological examination disclosed that the vessels of the brain were sclerotic and friable and that several small arteries therein were ruptured with an extravisation of blood into the central brain. The cause of death, according to the diagnosis made on autopsy, was a cerebral hemorrhage with cerebral arteriosclerosis as a contributing cause.

There also appeared and testified on behalf of the petitioner, Dr. George P. Olcott, Jr., an assistant medical examiner for Essex County, who has practiced medicine for upwards of thirty years and whose qualifications were conceded by the respondent. Dr. Olcott testified that in his opinion there was a causal relationship between the death of the employee and the physical activities and effort in which he was engaged immediately prior thereto, in the performance of his duties. He explained that the deceased employee, as disclosed by the autopsy, possessed a pre-existing arteriosclerosis of the blood vessels of the brain, which, over a considerable period of time, had resulted in a degenerative process that weakened and rendered brittle the walls of the said vessels. These," he stated, were rendered less able to withstand any unusual stress or burden'imposed upon them by any increased load on the blood circulatory system. Thus the physical activities of the decedent in climbing the 85 foot ladder and then climbing over the muck pile for a distance of about 35 feet at an angle of 35 degrees, carrying the steel drills of some weight, and thereafter participating in other activities either preparatory to or in pursuit of his drilling work, constituted a sustained effort that resulted in an increase in the blood pressure which, superimposed upon the diseased brittle and weakened condition of the blood vessels of the brain caused a rupture thereof. The opinion and conclusions which he reached were not only predicated upon his extensive medical experience in this field, but also upon the physical findings on autopsy.

On behalf of the respondent, there appeared and testified Dr. Ambrose J1. Dowd, a neurologist of many years of experience, whose qualifications were also admitted. This physician was presented by the respondent’s attorney with a hypothetical question and in response thereto, rendered an opinion that the employee’s death was not connected with any activity related to his employment. The reason given was that the decedent had habituated and conditioned himself to the effort and stress of his employment so that there was not created any increase in the blood pressure or load which the sclerotic and friable blood vessels in the brain were obliged to carry. He admitted that effort and stress under certain circumstances resulted in an increase in the volume of the blood flow, which, if passing through a diseased or necrotic vessel could cause it to rupture. However, he was of the opinion that there was no increase in the decedent’s blood flow or pressure as the result of his climbing activities carrying the two drills immediately after the termination of the lunch period, for the reason that the employee had habituated himself to that type of activity. Nor would the size or weight of the drills which he carried while so climbing, alter the doctor’s opinion in this regard. Dr. Dowd admitted that the opinion which he expressed was based on h'is own medical experience which concededly did not include any experiments or tests with the blood pressure of persons engaged in work similar to that of the decedent.

That the decedent met his death as the result of a cerebral hemorrhage while at his station in the slope of the respondent’s mine shortly after the resumption of work about 2 :30 A. M. seems to be free from any serious dispute. Whether that was due to an accident within the meaning of and adjudications under the Workmen’s Compensation Act, as contended by the petitioner, or the result of a spontaneous rupture of the necrotic blood vessels in the employee’s brain because of degenerative processes wholly unrelated to the employment, as'urged by the respondent, is the debated question. The petitioner’s proofs point to the physical exertion of the decedent in climbing the 85 foot ladder pitched at a 65 degree angle and then clambering over broken rock and ore which comprised the muck pile, at an upward incline of 35 degrees for a distance of approximately 35 feet, carrying two steel drills weighing in the aggregate between 24-30 pounds, and in his participation in or preparation for drilling operations, as the causative factor of an elevation in the decedent’s blood circulation which subjected the diseased and sclerotic vessels of his brain to a load which they were unable to withstand, with the result that they ruptured and death ensued. Opposed is the theory advanced by the respondent that the necrotic degeneration of the vessels, by coincidence perhaps, but not by reason of any activity incident to the employment, reached the point that they spontaneously ruptured during the' time that, the decedent was in the performance of his work.'

Considering the evidence as to the physical exertions engaged in by the decedent from the period that immediately preceded his death, and in view of what we now know to have been the brittle and sclerotic condition of the blood vessels of his brain, the opinion of the petitioner’s medical expert as to the causal relationship between such sustained effort and an increase in blood pressure or flow, and the ensuing rupture of the weakened arteries, presents a more probable hypothesis than that offered by the respondent. I am unable to accept the theory advanced'by Dr. Dowd that the 61-year-old decedent had so accustomed or habituated himself to the activities of-his employment, that the physical exertions in which he engaged within a period of from five to ten minutes after the finishing of his lunch, would not result in an increased blood circulation or pressure. Our daily experiences in less arduous activities such as the climbing of flights of stairs or carrying objects of no unusual weight for some distance, are to the contrary. The respondent’s expert concedes that necrotic and friable vessels of the brain may be caused to rupture as the result of strenuous physical activity which cause an increase in the blood pressure to which those vessels are subjected. It was his opinion, however, that this did not occur in the instant case even after the decedent participated in the physical acts thus described, inasmuch as he had habituated himself to these exertions so that there was no ensuing increase in the blood flow through his vessels. It is significant that Dr. Dowd predicated his opinion in this regard entirely upon his general experience as a physician, which did not include any experiments or tests concerning blood pressure changes in men working in mines or occupations similar to that of the decedent.

Thus the respondent’s expert attributes the hemorrhage to a rupture of the vessels of the brain solely to the slow progressive degenerative arteriosclerotic process. It must therefore be inferred that by coincidence it took place in the slope of the respondent’s mine where the decedent was in the performance of his duties.

The record clearly demonstrated that the employee’s health preceding his collapse was apparently good. Nor has the respondent produced any testimony indicating that he had previously suffered any symptoms attributable to a cerebral arteriosclerosis, or lost any time from the pursuit of his occupation as a result of any cerebral or other indisposition. I am of the opinion that such a slow degenerative process in all reasonable probability would not rupture under the circumstances presented in this case without the intervention of an extraneous cause. And where, as here, respondent’s expert admits that an increase in blood pressure could be and the petitioner’s physican contends was-the cause of such a rupture, I am unable to accept the unsupported medical testimony of the respondent that the decedent had acclimated and habituated himself. The more reasonable probabilities, in view of the friable and sclerotic condition of the blood vessels as disclosed on autopsy, indicate the absence of such resistant qualities.

To attribute the hemorrhage solely to the degenerative process which, apparently by coincidence, occurred at a time immediately following a considerable degree of physical exertion on the part of the decedent, but, according to the respondent, was wholly unrelated to the employment, is to ignore the more reasonable and more probable explanation and theory presented by the petitioner’s evidence. It is to be borne in mind that the test under our cases is probability and not absolute medical certainty. Jackson v. Delaware, Lackawanna and Western Railroad Co., 111 N. J. L. 487; 170 Atl. Rep. 22; Hercules Powder Co. v. Nieratko, 113 N. J. L. 195; 173 Atl. Rep. 606; affirmed, 114 N. J. L. 254; 176 Atl. Rep. 198. Accordingly, I am constrained to accept the testimony and proofs of the petitioner in this regard.

In determining whether or not an accidental injury has been suffered within the meaning of the act, it should be observed that it need not be the result of traumatic force. Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554; affirmed, 115 N. J. L. 500; 180 Atl. Rep. 832; and the fact that the injury was accidental may legitimately be inferred from circumstantial evidence. De Fazio’s Estate v. Goldschmidt, 87 N. J. L. 317; 88 Atl. Rep. 705. Nor need there be any exertion or stress out of the ordinary, where the performance of manual labor entails a strain upon an underlying diseased condition of the employee’s anatomy, in consequence of which death occurs. Molnar v. American Smelting and Refining Co., 127 N. J. L. 118; 21 Atl. Rep. (2d) 213; Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409; Ciocca v. National Sugar Refining Co., 124 N. J. L. 329; 12 Atl. Rep. (2d) 130; Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396. An accident, under our cases, is made out where the reasonable probabilities in view of all of the evidence, indicate that the employee, in putting forth his duties, met his death by reason of the effects of said exertion upon a vital organ already seriously impaired by disease. Molnar v. American Smelting and Refining Co., supra.

Prom a careful consideration of all of the testimony and evidence before me, as well as the reasonable inferences to be drawn therefrom, I am constrained to find that the petitioner has carried the burden of proof that her decedent met with an accident arising out of and in the course of his employment with the respondent. ;}; tjs íj* V

Stephen J. Lorenz,

Deputy Commissioner.