author: Delmar, C. P. J.

text:
    Bergen County Court of Common Pleas.
    BOROUGH OF RAMSEY, v. PETER BASIL AND SAMUEL BASIL, DEFENDANTS.
    Decided September 23, 1941.
    For the borough, Romeo R. Napolitano.

    For the defendants, James M. Muth.

   Delmar, C. P. J.

The petition of the defendants, addressed to me as a judge of the Court of Common Pleas, Bergen County, sitting as a Special Statutory Tribunal, under R. S. 2:215-7, alleges that they were “convicted” of violating section 25' of ordinance 71 of the Borough of Bamsoy and fined $5 each therefor by F. William Gertzen, Mayor of the Borough of Bamsey. The return of the Mayor shows that the defendants were “convicted” of violating said ordinance by tampering with a water meter.

Defendants’ brief sets forth five reasons why, it is alleged, the judgment of the Mayor should be reversed. I deem it unnecessary to consider the merits of the defendants’ contentions, because, as I view it, they are not entitled to have said judgment reviewed by me.

The ordinance in question, by section 32, provides that any person violating any section thereof, shall upon conviction be subject to a fine of not more than $50 for each and every offense, and that the officer before whom such person shall be brought, on conviction, shall impose a fine, in the discretion of such officer, of not more than $50.

The cases hold that where the violation of an ordinance is punishable by fine only, the proceeding to impose such fine is a civil suit. Brophy v. City of Perth Amboy (Court of Errors and Appeals), 44 N. J. L. 217; White v. The Borough of Neptune City (Supreme Court), 56 Id. 222; 28 Atl. Rep. 378; Unger v. Township of Fanwood (Supreme Court), 69 N. J. L. 548; 55 Atl. Rep. 42; Van Bueren v. City of Wildwood (Supreme Court), 9 N. J. Mis. R. 187; 153 Atl. Rep. 260. The fact that the statute R. S. 40:87-41; N. J. S. A. 40:87-41, provides that in default of the payment of the fine the defendants may be imprisoned, does not alter the character of the proceeding. White v. The Borough of Neptune City, supra; Tenement House Board v. Gruber, 79 N. J. L. 257; 75 Atl. Rep. 475; Lowrie v. State Board, 90 N. J. L. 54; 99 Atl. Rep. 927.

R. S. 40:87-32; N. J. S. A. 40:87-32, gives to the mayor of a borough the power to hear, try and determine, according to law, all actions which may be brought for the recovery of any penalty prescribed for the violation of any ordinance of the borough, and all offenses charged before him by complaint on oath, in writing, to have been committed in violation of such ■ ordinances, for which the punishment is by fine or imprisonment. This section empowers the Mayor to try violators of ordinances, whether the procedure is a summary proceeding of a gwasi-criminal character or whether it is a suit for a penalty such as the one under consideration.

R. S. 40:87-39; N. J. S. A. 40:87-39, provides for the procedure before the Mayor, which, in the case of a suit for the recovery of a penalty for the violation of a borough ordinance, is to be, as nearly as may be, conducted in the manner prescribed for the proceedings in the Small Cause Courts.

R. S. 40:87-42; N. J. S. A. 40:87-42, provides for an appeal to the Common Pleas Court where the penalty imposed shall exceed $20. The defendants could not appeal to the Court of Common Pleas under this section because the fines imposed upon them were only $5 each; so they have petitioned me under R. S. 2:215-7; N. J. S. A. 2:215-7, to review their conviction. This latter statute was first enacted, as set out in chapter 228, Pamph. L. 1908, under the title, “A Supplement to an Act Entitled ‘An Act Eelating to Courts Having Criminal Jurisdiction and Eegulating Proceedings in Criminal Cases’ (Eevision of 1898); Approved June 14th, 1898.” It became section 145 B “Criminal Procedure Act,” Comp. Sfal. 1910, p. 1868, and is now classified in the Eevised Statutes under the subtitle “Police Courts and Magistrates.” Does this statute; authorize a review by a judge of: the Court of Common Pleas where the proceeding before the Mayor is in the nature of a civil suit? I think not. The title of the act alone is sufficient to show that the proceedings to be reviewed thereunder were to be of a criminal nature. A review of the (¡ases in which said statute has been cited fails to disclose any judicial determination of this question. In Westfield v. Stein, 113 N. J. L. 1; 172 Atl. Rep. 522, and Dziatkiewicz v. Township of Maplewood, 115 N. J. L. 37; 178 Atl. Rep. 205, in the Supreme Court, and State (Borough of Leonia) v. Clifford J. Heath, 18 N. J. Mis. R. 471; 15 Atl. Rep. (2d) 92. before Judge Weber of the Bergen County Court of Common Pleas, are the only cases citing said statute which did not arise in cities. In none of these cases was the question under considoration mentioned.

All of the cases in which a review has been sought under said statute excepting those hereinbefore noted have arisen in cities, and cannot be considerad as authority for sustaining a review in a. (‘ase arising in a borough, because in the case of a city such review is authorized by R. S. 2:81-13, originally enacted as chapter 384, Pamph. L. 1895, under the title “An Act Concerning Proceedings to Eeview Judgments or other Judicial Proceedings of any City Judge, Police Court or other Inferior Court had for or on Account of alleged violation of city ordinances or ordinances of city boards of health; approved March 28th, 1895.”

Furthermore, the 1908 statute relates to convictions and summary proceedings and provides that in a review, the complaint, warrant, proceedings and record of conviction shall be returned as the record of the case. The words “complaint," “warrant," and “conviction" are words more suitably used to refer to a proceeding of a gwasi-criminal nature rather than to a civil action to recover a penalty.

If it be thought that it is an anomaly for the legislature to empower the mayor of a borough to try cases of a civil nature, at least, its power in this respect is unquestionable. See State v. Lakewood Market Co., 84 N. J. L. 512 (at p. 522); 88 Atl. Rep. 194, in which some of the cases and statutes are reviewed, and wherein it is said, “The question as to whether jurisdiction of matters of this kind (suit for a penalty) should be given to Justices of the Peace or to other Magistrates or Judges, is a question to be solved solely by exercise of legislative discretion." See, also, S. P. C. A. v. Whitney, 84 N. J. L. 136; 86 Atl. Rep. 61, and McGuire v. Doscher, 65 N. J. L. 139; 46 Atl. Rep. 576, which is an example of a civil suit for a penalty, brought in the First Criminal Court of Jersey City, and remanded back to that court for further proceedings.

It is competent for the legislature to authorize the enforcement of ordinances by any form of summary proceeding that would be lawful if the ordinances were legislative acts. McGear v. Woodruff, 33 N. J. L. (at p. 217). A civil suit for a penalty is a common form of such legislation. Such cases, if no other form of appeal or review is available, are always reviewable by certiorari. Minochian v. Paterson, 106 Id. 436 (at p. 438); 149 Atl. Rep. 61; Miller v. Belmar, 101 N. J. L. 481; 129 Atl. Rep. 761, in which case this was said to be the only remedy available for the review of a conviction under a borough ordinance when the fine imposed is less than $20, even where the penalty provided for in the ordinance may be a fine and imprisonment.

The petition for a review is therefore dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Bergen County Court of Special Sessions.
    THE STATE, v. JOHN K. O’GRADY, DEFENDANT.
    Decided Septembr 26, 1941.
    For the state, John J. Breslin, Jr., prosecutor of the pleas (by Nicholas A. Oarella, assistant prosecutor of the pleas).
    For the defendant, William V. Breslin (by Henry J. Bendheim).

   Delmar, C. P. J.

From a judgment of conviction by Vincent F. X. Carlsen, Judge of the Police Court of the Palisades Interstate Park, whereby the defendant was found guilty of violating “section 4-50 of the Title ‘Motor Vehicles and Traffic Regulation’ of the Revised Statutes,” the defendant has appealed to this court.

By virtue of R. S. 39:5-11; N. J. S. A. 39:5-11, this appeal operates as an application for a trial de novo in the Court of Special Sessions and not as a review of the proceedings by law. Any defect in the conviction has been waived by this appeal. Newbury v. Lawrence, 4 N. J. Mis. R. 267; 132 Atl. Rep. 306; affirmed (Court of Errors and Appeals), 103 N. J. L. 199; 134 Atl. Rep. 918.

At the trial in this court, the state and the defendant submitted the case to the court upon an agreed state of facts, which are substantially as follows: The defendant drove his automobile on to a ferryboat named “Englewood” on the New York side of the Hudson River. The boat proceeded to cross the river and arrived at a dock on the New Jersey side, owned by the Palisades Interstate Park Commission, and let by said Commission to a private corporation. This dock was used solely for the purpose of permitting passengers and vehicles to debark from the ferryboats, the vehicles debarking by means of a suspended bridge connected with the stationary portion of the dock. Upon arriving at the New Jersey side, after the ferryboat was secured to the dock, the defendant drove his automobile off the ferryboat and as it was driven on to the bridge or dock he was arrested by a policeman, who charged him with driving an automobile while under the influence of intoxicating liquor. The defendant admits that he was intoxicated and that he drove the automobile, as aforesaid, but contends that he is not guilty of violating B. 8. 39 :4-50 as charged in the complaint, because the ferryboat and the bridge or dock, where he drove and where he was arrested, were not public places, and that the statute in question was intended to apply only to public places.

Counsel have not called to my attention any case where this question has been decided, nor has a careful search on my part disclosed any. There have been cases in other states, but too much weight should not be given to them because of the difference in the wording and the history of the various statutes. However, the opinion of Judge Hill of the County Court, Nassau County, New York, rendered on November 7th, 1940, in the case of The People of the State of New York v. James G. Evans, in construing the New York statute, which is similar to ours, is of some value in indicating how the judicial mind works. The New York statute is section 70, subdivision 5 of the Vehicle and Traffic Law. The learned judge notes that, “There is no reference to a public highway in this subdivision, and the court is unable to read ‘public highway’ into the section. It must be concluded, however, that the legislature intended to leave the words out and make it a crime for a driver to operate a motor vehicle anywhere, in an intoxicated condition.

“Automobiles have been declared to be dangerous instrumentalities and it can be readily understood why their operation by one who is intoxicated would be forbidden anywhere. One intoxicated, undertaking to drive an automobile, might start to drive at a private place and get on a public highway by accident. Certainly the legislature intended to protect the life, limb and property of its citizens from such menace. (See People v. Rue, 166 N. Y. Miscellaneous 845).”

In ISTew Jersey, the history of the present legislation may be traced back to chapter 67, Pamph. L. 1913, entitled “Supplement to an act entitled 'An act concerning disorderly persons (Bevision of 1898),” which provided that “Any person * * * who shall operate an automobile or motor or any other vehicle over any public street or highway while under the influence of intoxicating liquors shall be adjudged to be a disorderly person.” The punishment fox a violation of this law was a prison sentence of not less than thirty days nor more than six months. This act was approved March 12th, 1913, and was repealed by chapter 184, Pamph. L. 1921 (at p. 488), which repealing act was approved April 7th, 1921, and took effect on January 1st, 1922. In its place, the legislature enacted chapter 208, Pamph. L. 1921, § 14 (3), approved April 8th, 1921, to take effect January 1st, 1922, which act was entitled, “An act defining motor vehicles and providing for the registration of the same and the licensing of the drivers thereof; fixing rules regulating the use and speed of motor vehicles; fixing the amount of license and registration fees; prescribing and regulating process and the service thereof and proceedings for the violation of the provisions of the act and penalties for said violations,” in which act some changes were made in the wording of the legislation, particularly, all reference to any public street or highway was omitted therefrom. Significantly, the punishment for a violation of this act was a minimum imprisonment of thirty days and a maximum of six months, as in the previous act.

In construing a statute we must consider the old law, the mischief and the remedy. Stephenson v. Stephenson, 102 N. J. Eq. 50; 139 Atl. Rep. 721; State v. Rowe, 116 N. J. L. 48; 181 Atl. Rep. 706.

By codifying the laws relating to motor vehicles in chapter 208, Pamph. L. 1921, and repealing numerous prior acts relating thereto, the legislative intent is easy to ascertain. Previous legislation had been passed more or less in a haphazard manner from time to time, as the need therefor arose. Codification brought all or most of the statutes relating to motor vehicles under a single title. The punishment under the 1913 act must have been considered by the legislature at the time to be satisfactory, as no change was made under the codification. Can it be said that the omission of the words “public street or highway” contained in the 1913 act was accidental and without any purpose? I think not. It seems clear to me that the legislature designedly omitted the stated words in order to enlarge the scope of operation of the statute.

The 1921 act, with some changes, which are unimportant in so far as the present case is concerned, is the same as the present law. The defendant strongly urges, inasmuch as the statute in question is highly penal in its nature and must under our well settled law be strictly construed, that the language of the statute must not be stretched so as to include offenses not specifically set forth therein. This may be readily conceded. Nevertheless, the operation of R. S. 39:4-50; N. J. S. A. 39:4-50, cannot be confined to public places without putting in the statute words which are not there.

Title 39, entitled, “Motor Vehicles and Traffic Regulation,” describes many offenses, most of which are not violations of the particular provisions unless committed in public places, particularly on streets or highways. However, there are also 'offenses described therein which, the slightest reflection will indicate, are offenses, whether committed in public or private places. Article 9, section 4-48 forbids the operation of a motor vehicle without the permission of the owner. Certainly no one could logically read into this section any legislative intent to confine its operation to public -places. Section 4-49 of the same article, concerns tampering with motor vehicles without the owner’s permission. The next section is the one under consideration, relating to the operation of an automobile while under the influence of liquor or drugs. Like the two preceding sections, the language in no way indicates that the offense must be committed, if at all, in a public place. The next offense described in this article, in section 4-52, is racing on the public highway. The following one, section 4-53, relates to leaving a motor vehicle with its engine running, stationary, on the highway, and the next, section 4-54, relates to motor vehicles or tractors on public highways.

Gan it be said that the failure to mention public highways or places in the first three sections alluded to was accidental, in the light of the fact that the other three sections all specifically mention highways P It seems to' me that a more reasonable interpretation is that these sections were all carefully prepared in the light of experience, and that the legislature has used the word highway or public highway when it so intended, and that when it did not so intend it meant that the offense was, nevertheless, a violation when committed in a private place.

The defendant lays great stress on that part of section 4-50, which'provides that as a part of the punishment an offender, “Shall forthwith forfeit his right to operate a motor vehicle over the highways of this state,” and contends that because of this part of said enactment the legislature had in mind that the offense could only be committed in a public place. I am unable to see any logic in this contention. It is true that by virtue of R. S. 39:3-10; N. J. S. A. 39:3-10, no person is permitted to drive a motor vehicle on a public highway unless licensed to do so in accordance with the provisions of said article. But, before obtaining such license, it is equally true that any person exhibiting the proper qualifications had a right to operate a motor vehicle over the highways of this state by complying with the provisions of said article. It is this right and not the license which is forfeited by virtue of the legislation in question. This must be quite clear, because for a first offense the forfeiture was for a period of two years from the date of conviction, whereas, the license is only in force for one year, and for a subsequent violation the forfeiture is perpetual. So that a person operating a motor vehicle in a private place, which he may do without obtaining a license therefor, upon being convicted of violating section 4-50, nevertheless, forfeits his right to obtain a license to drive a motor vehicle in a public place, for the period set forth in the statute and therefore his right to so operate an automobile.

The defendant further argues, that ordinarily there is so little danger to the public from the operation of an automobile by an intoxicated person in a private place, that the legislature would provide a different punishment therefor than they provided for so operating an automobile in a public place. The answer to this is two-fold: First, that discretion is given to the magistrate, under the statute, both in the amount of the fine and the term of imprisonment, and it is presumed that such discretion will be used in the light of the individual characteristics of each case. Secondly, that the nature of the offense described in the legislation, is not in any way governed by the danger to the public. In such cases as State v. Rodgers, 91 N. J. L. 212; 102 Atl. Rep. 433, it has been pointed out that one driving an automobile, while under the influence of intoxicating liquor, is an offender, “Even though he drive so slowly and so skillfully and carefully that the public is not annoyed or endangered.”

I, therefore, find the defendant guilty of operating an automobile while under the influence of intoxicating liquor, within the jurisdiction of this court, in violation of R. S. 39:4-50; N. J. S. A. 39:4-50, and he is, therefore, ordered to appear before this court so that judgment may be pronounced.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    NELLIE DANIELS, PETITIONER, v. ESSEX MOUNTAIN SANATORIUM, RESPONDENT.
    Decided August 8, 1941.
    Dor the petitioner, Perry E. Belfatto.

    Dor the respondent, Edwin J. O'Brien.

   *******

The petitioner was the first witness produced on her own behalf, and she testified that on August 15th, 1938, she felt a smarting sensation on her temple right near the eye, went to the mirror and looked at it and found a red spot at the point where she felt the smarting sensation. She testified that this was the first information that she had that there was anything wrong with her skin. The witness stated she first went to Dr. Ormsby, one of the resident physicians at the Sanatorium, but that she did not remember, even approximately, when that was although she does remember distinctly the date of the appearance of the lesion. She further testified that she saw Dr. Paul Keller making his rounds in the hospital and spoke to him relative to the skin condition. He referred her to a Dr. IST. B. Heller for treatment. After being treated by Dr. Heller, the petitioner stated that she saw Dr. Keller who is chief medical examiner for the carrier on his rounds at the hospital and she told him that she was not satisfied with Dr. Heller’s treatment, so he referred her to Dr. Frank J. McCauley. She states that she was treated by Dr. McCauley for three or four months and that a biopsy was done; that she was not treated by Dr. Ormsby until after the biopsy and treatment by Dr. McCauley. Dr. Ormsby, to whom she went of her own volition, gave her gold and sodium bismuth treatment. She continued on with the work and then subsequently on one occasion she temporarily lost the vision of her left eye. Becoming alarmed she reported to Dr. Harmon and he recommended Dr. Pfahler of Philadelphia. The petitioner went to see Dr. Pfahler of Philadelphia and was treated by him after he called in a Dr. Gilmore.

Tests were’ made and a biopsy performed and the doctors diagnosed her facial condition as a tuberculosis of the skin. The petitioner stated that she paid the bills of Dr. Pfahler and Dr. Gilmore. . •

The petitioner testified that prior to the appearance of the lesion of August 15th, 1938, which is in question here, that so far as her health was concerned “I have always béen very well as far as I can remember back,” and in answer to the question “what was the condition of your skin prior to the accident?” she answered “my skin was perfect.”

Cross-examination of this witness revealed these facts, which were later properly proved by the production of the witnesses who made the records: That on October 13th, 1932, she had a series of barium meal X-rays which disclosed a chronic .retentive appendix; that beginning with June 22d, 1933, she was treated for five consecutive treatments for a “dermatitis vesicularis.” On April 4th, 1931, an X-ray was taken which showed a chronic fibrosis at the apices of the lung; that she received twenty-two treatments beginning February 24th, 1936, with the Alpine lamp for the purpose of general toning up of her system and that beginning March 26th, 1936, she received three treatments for a skin eruption on the left side of the forehead; that on January 20th, 1937, she received general Alpine treatments for general tonic treatment; that on April 5th, 1937, she received ultra short wave therapy for a back condition, which was again repeated up until April 8th, 1937; that thereafter, on April 11th, 1940, she was X-rayed for a pelvic disorder and prior thereto for a gastro intestinal complaint and that she was X-rayed again in December, 1939, for an ankle condition. Despite the fact that these occurrences were proved by the production of the records of the hospital plus the testimony of the persons who made the records the petitioner on cross-examination attempted to dispose of them in the following manner: She remembered the barium meal X-rays which disclosed the chronic retentive appendix but denied the treatment for a dermatitis vesiculares in June, 1933, and denied any X-rays taken on April 4th, 1931, which showed a fibrosis at the apices of the lung, did not recall the twenty-two treatments from February 23cl, 1936, with the Alpine lamp and did not remember the March 26th, 1936, occasion when she received three treatments for a skin eruption but later stated that she might have had a food rash or strawberry rash. She stated she did not remember the general Alpine lamp treatment on January 20th, 1937, and she stated emphatically that she did not receive the ultra short wave therapy from April ofch to April 8th, 1937, to her back, denied any X-rays or examinations for gastro intestinal upset and denied being X-rayed on April 11th, 1940, for a pelvic disorder, admitted the X-ray for her ankle condition in December, 1939.

The petitioner testified that the second facial lesion in 1938 appeared approximately two or three weeks after the first lesion. The witness again admitted that she had paid carfare to and from Philadelphia, for the consultation of Dr. Gilmore as well as and also the bill of Dr. Pfahler.

Dr. Samuel B. Greenwood was produced as an X-ray-specialist by the petitioner and stated that the effect of X-rays is cumulative, and this doctor stated that you can recognize an X-ray burn because it is a burn. He stated “it would require such an enormous amount of that (indirect radiation) I doubt it very much,” (that it would burn the operator). When this witness was recalled at a later session he stated that he does not know how much radiation the petitioner would get in the position in which he assumed she was when the X-rays were being taken; in other words, he does not know how much radiation she received as the result of the indirect rays from the X-ray machine.

Dr. Anthony Daniel Crecca, a resident physician at the Sanatorium, was called on behalf of the petitioner, and stated that at various tim'es the petitioner would question him regarding one phase or another as to her complaints. Dr. Crecca stated that “as far as I was concerned, this girl had a granulomatous lesion of the skin, which very likely was tuber*eulosis.” He later stated that in his opinion from the original appearance of it he thought it' was an X-ray burn and that while on some occasions he saw the petitioner in the room where Dr. Harmon was operating the X-ray machine and the petitioner was placing the subjects in position to be X-rayed, that “she was certainly right in line or at least in line with some of the rays that were going by her.” This doctor also stated “I would say here that within the period of a few hours the repeated exposure of the patient to the X-ray would cause a burn or injury, whereas over a period of weeks the similar exposure may not.” This doctor stated he was in the room four or five times. He stated further that he did not know what type of tube was in use at or about the time of July, 1938, and admitted in that regard “anything that I would say would be a guess.” This witness claims to be able to remember that he saw the petitioner within a week after the appearance of the lesion, although the petitioner herself cannot tell how long after the appearance of her lesion it was that she first saw this doctor. The doctor stated he made no notation as to the date he saw her as it did not mean anything to him, neither does he remember what was said at the time by the petitioner as to how long it was after she first noticed the lesion. This doctor also stated in his testimony that he does not know whether it was “a week after August 15th or May 18th or whatever it was.” There is a discrepancy between the testimony of the doctor and the petitioner as he states that the original site of the burn was at the temple and also at the side of the cheek, two lesions, when the petitioner herself stated that the second lesion appeared on her face about two or three weeks after the first lesion. This witness stated that he gave the petitioner no treatment, that he made no tests to find out what the exudation from the lesion was or what was causing it. He further stated “I do not recall exactly when the glanulomatons appearance came on, bnt I know it was much later.” “After several months it became glanulomatous.” When he was asked how soon after an X-ray exposure you would get a red area or an erythema, this witness answered “within twenty-four or forty-eight hours.” “I suppose it depends on the — well, it does depend on the size of the dose.” Inasmuch as this was completety contradicted by Dr. Baker on behalf of the respondent and by Dr. Greenwood, who appeared for the petitioner, who both testified that as a result of indirect radiation one could not tell how long it would take and the dose would have to be enormous, this witness is apparently not an expert in that line. This witness also stated that the appearance of tuberculosis of the skin and an X-ray burn are entirely different and that you do not get the appearance of a tuberculosis of the skin with an X-ray burn.

This witness made a very significant statement when he said that the minimum and maximum time from the appearance of the first red lesion to the time it may become granulomatous in tuberculosis of the skin, varies from three weeks to approximately six months, because from his own statement that is apparently the time in the case sub judice from the appearance of the original red lesion to its becoming granulomatous. furthermore his description of what occurs from the initial appearance of tuberculosis of the skin as compared with his description of what occurred here shows that apparently this petitioner .did have a tuberculosis of the skin and the course of the lesion is exactly as described by this doctor. The witness further admitted that he did not know the petitioner had been X-rayed for an upper respiratory infection and that he did not know that this petitioner had received treatment from face lesions before, showing that he knows little or nothing about the petitioner’s prior condition, so far as it is germane to this case.

The petitioner produced James S. Patrick, who testified that he was chief engineer of the Essex County Mountain Sanatorium in Yerona, and he testified as to the installation of the X-ray apparatus, but it is perfectly obvious from this witness’ own testimony as well as the testimony of Dr. Harmon, the superintendent of the institution, that this witness was merely an electrician and not an X-ray specialist and that his only province in this matter was to make the electrical connections in the sanatorium with the machine brought in by the X-ray people. His testimony was evidently an attempt to show that there was no lead in certain glass used for protective purposes under the old installation and at the time the petitioner claimed she was burned, but the witness stated that he could not tell whether there was lead in the glass by looking at it and furthermore stated that despite a test which he attempted to testify to in regard to a dental film, that in his opinion there was not “sufficient” lead in this glass used as a shield at the time of the alleged X-ray burn. It is perfectly obvious that he is not an expert on roentgenology and his own statements reflect that any information he may have is based upon hearsay and not upon any knowledge that he may have.

Dr. Thomas J. Ormsby was produced on behalf of the petitioner and stated that he had for five years been a resident physician at the Essex Mountain Sanatorium at Verona, and that he made three examinations of the petitioner, the first one on September 15th, 1938, the second examination on March 23d, 1940, and the last one on February 15th, 1941. It is very interesting to note what this doctor has to say about Miss Daniels’ statement to him upon her first visit. He said “at that time the lesion was not particularly definite.” “* * * She told me that she had noticed a lesion or a sore developing on the margin of the left eye.”. And “* * * there was not sufficient 'there to make any definite diagnosis * * He stated that at that time he made a tentative diagnosis of an X-ray burn, basil cell epithelioma, possible eczeme and possible fungus infection.” He stated that there appeared “in two months’ time * * * she had an indulent ulcer of the left cheek at the external margin of the eye. The disease was progressive from the time I first saw it, and at the time she first came to me she told me it was about four weeks old.”

The doctor said that he made a definite diagnosis of an X-ray burn on November 16th, 1938, and that when he saw her in March, 1940, again that “she had received no adequate treatment, apparently, for this during the period which she had been away from my care.” And “I have no positive knowledge of the change or what caused it, except it may have been the progression of the original lesion itself, but there may have been some superimposed infection. That I can’t tell you from my own knowledge.” This doctor stated that he rendered a bill of $73 for treatment but that he rendered it to Miss Daniels herself and not to the county or any insurance company. This witness testified that he was not a roentgenologist and not connected with any institution in the capacity of a roentgenologist. This witness also stated that he was not a pathologist. At the time this witness first saw it “it just had the characteristics of an inflamed ulcerated area.” In answer to the question “it might have come from any number of things, isn’t that so?” The witness answered “yes.”

This witness said that a very significant thing was the white blood cell count, which was 6,800, and he stated that the normal white blood cell count of an adult woman was between 7,500 and 10,000. He testified that this 6,800 white blood cell count was “a very definite indication of the changes which occurred in her white blood picture.” “That is one of the laboratory confirmations of my diagnosis.” This doctor’s testimony in this regard was completely nullified when a Dr. Otto Lowy, pathologist of long standing, produced by the petitioner, testified that 6,800 was a normal white blood cell count for an adult woman and that it was not inordinately low as this witness had stated.

This witness testified that he had examined X-rays to rule out tuberculosis and he also made blood examinations to rule out other conditions. This witness stated that he never considered this lesion as tuberculosis, and still does not. However, this witness’ opinion is that “the exposure there over the period of years with the increased exposure of the year preceding the appearance of this lesion is what caused the lesion.” “That was the definite cause of this disease.” He stated that he called up a skin man on November 16th, 1938, when the lesion did not respondent to his treatment, “* * * because I thought she should have further work to determine the exact cause of the lesion histologically.” Although this witness stated that he wanted a work-up made to make certain of the diagnosis, he did not have one done. He expressed the desire to know what one would show. This witness further stated that he did not think it was a lupus vulgaris but that if it was a lupus it would fall into two possible considerations: Lupus vulgaris or anatomical tubercular or wart like tuberculosis. This witness stated that he does not think she had a lupus or tuberculosis of the skin and he still does not think she has it, despite the positive proof by the respondent’s doctors plus the admission by the petitioner’s doctors that she has it. This witness further stated that if it could be shown that this woman’s facial lesions were lupus, “I don’t imagine you could distinguish its progress” from other lupuses he has seen. The doctor stated that he believed the appearance of the lesion is non-definitive when it first appears. “There is such a multitude of appearances of lupus you would not be able to ascribe it to any one lesion.” This witness, in common with the other witnesses produced by the petitioner, stated that he did not know that the petitioner had had skin trouble over a period of years at the institution and that although he recommended a biopsy done, and considered it important, that she did not go to the doctor whom he recommended and it was not done so far as he knows.

Dr. Otto Lowy was next produced on behalf of the petitioner and his qualifications were admitted in the field of pathology and diagnosis with special reference to industrial diseases and injuries. This doctor stated that the petitioner was at his office in October, 1940, and Dr. Lewis examined her and he, Dr. Lowj’, onty examined the petitioner this morning. He stated that their physical examination was essentially negative.

At this point petitioner’s counsel stated that petitioner, when undergoing cross-examination, would change her direct examination and admit that she had some pimples some years ago in the mid frontal region of the forehead.

This witness stated that “in August, 1938-, the first evidence of a burn appeared, that red blotch. That red blotch, of course, did not occur from a burn; that occurred at that particular time, but in my opinion was the accumulation of constant exposure oyer a period of time.” The correct prior history was not given to this doctor, as he had no history of a prior condition of skin eruptions or infections of the face. This doctor admitted that cauterization or electro-dessication is not treatment for an X-ray burn. He further stated that injections of gold which the petitioner received and the histological tests of Dr. Pfahler showed she has a lupus (tuberculosis of the skin). This witness stated that his own best opinion is that the girl had a tuberculosis of the skin. He stated that a smarting sensation on the appearance of the lesion as described by the petitioner and its initial appearance is such as you would get in an endogenous lesion (one which comes through the blood stream or from within). He further stated that a 6,800 white blood cell count is not abnormally low in an adult female and that the normal range is from 5,000 to 8,000.

Dr. Leon Lewis was the next witness produced on behalf of the petitioner and his specialty, which was admitted, is diagnosis and clinical pathology. This witness stated that the August 15th, 1938, occurrence was unimportant and that if the history were to be believed that it was caused by repeated exposures to X-ray, though he cannot say that the occurrence of August 15th, 1938, had any effect. The doctor stated that he was not a roentgenologist and not familiar with roentgenological doses, &c. He stated that it was impossible for him to make a diagnosis now or when he saw her. The diagnosis was based entirely upon the history given to him and that if he knew of previous skin eruptions it would make a difference in his diagnosis. Furthermore, he stated that cauterization by electro-dessication is not treatment for an X-ray burn. The treatment she received was for tuberculosis so far as he could ascertain and that she could have had the scars from the tuberculosis of the skin without any X-ray burn whatsoever. Furthermore he admitted that the way this skin lesion manifested itself is the way that tuberculosis of the skin or any other lesion might manifest itself “a skin burn or anything.” He further admitted that the way this skin lesion manifested itself is not usual for manifestation of an X-ray burn, that this was particularly the natural manifestation of a skin tuberculosis. The doctor stated he never treated an X-ray burn and has not seen any in private practice. He saw some when he was back in medical school where they were already diagnosed and he cannot say in this instance that there was any specific X-ray burn.

Dr. Martin Castellano was produced as a witness on behalf of the petitioner and stated that he has been practicing since 1934 and he is a resident physician of the Essex Mountain Sanatorium. This witness stated that he saw the petitioner approximately five times a week for a period of about a year. This witness does not know the date he saw the petitioner for the first time; all he knows that he examined her face. The witness’ opinion is that there was an X-ray burn but no other involvement. This witness states he referred the petitioner to Dr. McCauley. The witness stated he is not a roentgenologist, does not know how much exposure is necessary to have an X-ray burn, does not know what is necessary for an X-ray. burn and knows nothing about X-ray burns or intensities necessary for an X-ray burn. He did,, however, testify it would be necessary to be in a direct line with the tube to get an X-ray burn though he never treated a ease of X-ray burn and never has seen an X-ray burn since leaving medical school and those were shown to him. He stated that an X-ray man could better determine those questions. He stated that the petitioner, when she placed the children for the X-ray exposure, did not block the ray, but stood a few feet to the side and he admitted that he did not know the diameter or the size of the aperture through which the X-ray was-focused and he did not know much about what happened to the ray after it left the machine.

Dr. Ambrose Dowd was next produced on behalf of the petitioner and he testified that he found the petitioner was suffering with a permanent disability of approximately 30% of total, due to the disfigurement which contributed to the disability. He admitted that a gynecological operation is a competent producing cause of an anxiety neurosis or a neurosis from which this petitioner suffered, so that whatever disability there was it could very easily be made up of a combination of a gynegological operation plus anxiety over the scars. He did not attempt to establish causal relationship between the lesion which first appeared on August 15th, 1938, and the present scarred condition of the petitioner’s face.

Dr. Eaphael Eussomanno was produced as a witness on behalf of the petitioner and he believes her disability, which he estimated at 35% to 40% of total permanent disability, was due to the scarring condition but it is based entirely upon the scarred condition and neurological symptoms regardless of their cause. This doctor did not attempt to establish causal relationship between the appearance of the lesion on August 15th, 1938, and her employment. He testified, however, that the dysmetria for which the petitioner was treated at the hospital may cause part of the disability from which the petitioner presently suffers. In other words, that the dysmetria is a competent producing cause of a neurosis, from which the petitioner suffers.

Dr. Byron M. Harman was the next witness produced and he was produced on behalf of the respondent, and he testified that he was the superintendent at the Essex County Mountain Sanatorium at Verona, and that he had known the petitioner for years, that she had complained to him about a skin condition several years before August, 1938, and that it resembled a ring worm infection. He stated that though he operated the X-ray machine many times he had never seen the petitioner stand in the path of the rays and that there was no reason why she should have ever stood in the path of the rays, lie stated that the petitioner came to him many times about her face and finally he suggested a Dr. Pfahler in Philadelphia “who could give her a definite answer as to what she was suffering from.” He stated that a number of years before she had asked him about a pimple or a minor infection which grew and did not respond to whatever was done .for it; it was causing her great irritability and growing in size.” The witness also stated that Mr. Patrick, the engineer produced by the petitioner, was merely the chief engineer and he made the electrical connections with the installed X-ray apparatus. He had nothing to do with the X-ray apparatus itself. This witness stated that the X-ray tube was placed inside of a bowl and the bowl was supposedly leaded and had been so represented to him by the General Electric Company who sold the county the apparatus. There was sufficient thickness of filters, according to the representative of the company from whom they purchased the equipment. The witness stated that he would not know if Miss Daniels received treatment for tuberculosis at the institution without referring to the record, inasmuch as there are around 650 patients and staff.

Dr. Jack Blumberg was called on behalf of the petitioner and testified that the petitioner’s neurological status was secondary to the scarring of the face and worrying over it and that she had approximately 30% of total disability. He also admitted that an ovarian-operation is a competent producing cause of neurosis. The petitioner admitted that she had an ovarian operation some years prior to the onset of the lesion.

Dr. Erank J. McCauley was one of the witnesses mentioned in the petitioner’s petition as a treating physician and was called as a witness on behalf of the respondent and testified that for twenty-five years he has been a practicing physician, specializing in the field of dermatology (skin diseases). He stated that he saw the petitioner first on April 6th, 1939, and he had seen and treated many X-ray burns and in his opinion this was decidedly not an X-ray burn. His differential diagnosis between an X-ray burn and this condition, was that he did not even consider this to be an X-ray burn at any time although the petitioner suggested to him that it might be. He stated that electro-dessication is not indicated where there is an X-ray burn but that it is indicated where there is a tuberculosis of the skin. This witness does not believe there-was a tuberculosis superimposed upon anything else, but that it was originally tuberculosis, but that they did not find concrete evidence of the tubercular bacilli in the part which they biopsied. This witness, testified that he believed that tuberculosis of the skin usually comes from within, in other words, that it is endogenous. And he wound up his testimony by stating “I feel now quite definitely that it was always a tuberculous lesion which had not developed sufficiently for us to diagnose at the time I saw it.” He also stated that the hair in the temple region grew again in that portion of the lesion that was on the side of the face underlying the hair. He stated that hair does not grow again if there is an X-ray burn, because the X-ray burn destroys the hair follicle and root and the hair does not grow in that place.

Dr. Charles Baker, a roentgenologist of over twenty-five years standing, connected with many institutions and societies in that capacity was the next witness produced on behalf of the respondent. He stated that he had seen a great many X-ray burns and that electro-dessieation is not indicated for the treatment of any X-ray burns. He also stated that hair does not grow again in the region where there has been an X-ray burn. When given a hypothetical question based upon the facts produced by the petitioner’s testimony he stated emphatically that this was not a question of an X-ray burn but the question of an endogenous tuberculosis from the very onset. Ho stated that an operator who placed children in position would not be in a direct ray; that the scattered rays which she might get could not burn the operator. He stated that electro-dessieation or cauterization is not indicated in cases of X-ray burns and in fact it would be coníra-indicated. Dr. Baker stated that petitioner’s description of what occurred when she first noticed the face lesion is not a description of an X-ray burn. The doctor repeated that you cannot get an X-ray burn from an exposure to indirect rays; and that such exposure will not make the skin red. The' only danger of too much indirect radiation is the production of a leukemia, a condition of diminution in the white blood cells. This doctor testified that X-ray tubes give forth X-ray, which are physical elements and the danger is the same from all of them. The danger is, except in direct radiation, blood change's. The doctor stated that even if it were a direct radiation which might cause a burn that the redness would not come until about the sixth day after an X-ray burn in blondes; in brunettes about nine or ten days after. It would not develop within twenty-four to forty-eight hours after the exposure. The doctor stated that indirect radiation would not cause a burn of this type where the skin is alleged to have been red and furthermore the witness would not call the petitioner a blonde.

Dr. Arthur Sonnenberg was next produced as a witness on behalf of the respondent and he was called and proved the fact that petitioner had been X-rayed at the institution for an upper respiratory infection.

Dr. William F. Bennett was next' produced on behalf of the respondent and testified that he was first assistant physician at the Essex County Mountain Sanatorium, Yerona. He proved the records of the petitioner with reference to the twenty-two treatments rendered to the petitioner, which started February 24th, 1936, and wound up March 20th, 1936, for general tonic, also for the tree treatments rendered for the skin eruption of the left side of the forehead beginning March 26th, 1936, also for the general irradiation for general tonic effects, which started on January 21st, 1937, and also for the treatment to petitioner’s back on April 5th, 7th, 8th and 9th, 1937, which petitioner denied. He also testified and proved the records with regard to the seven treatments with a Kromeyer lamp given petitioner from February 8th, 1939, to March 21st, 1939. He also testified that on October 18th, 1939, he saw the petitioner for dysmenorrhoea and abdominal complaints. He stated that on April 4th, 1931, an X-ray was taken of petitioner’s chest which revealed fibrosis and that on August 25th, 1940, the X-ray showed a roughened left apex. He also testified that chronic fibrosis frequently follows tuberculosis.

Louise Springer, a nurse at the institution, was next produced on behalf of the respondent and proved the records and testified to the treatments rendered petitioner from June 22d, 1933, to June 26th, 1933, five treatments, for skin condition under the chin and that from March 26th, 1936, she received three treatments for an eruption of the skin on the left side of the forehead.

Dr. Baxter Clement was produced as a witness on behalf of the respondent and testified as the result of an examination of the petitioner that he found no permanent disability due or in any way related to the episode of August 15th, 1938.

Dr. Asher Yaguda was next produced on behalf of the respondent and his qualifications were established as a clinician, in medical diagnosis and clinical pathology. He testified that the petitioner did not have an X-ray burn, talcing the facts elicited from her on her behalf in the direct case into consideration. That in his opinion she undoubtedly had a tuberculosis of the face brought through the blood and making its appearance manifest on August 15th, 1938, by this smarting sensation and the red blotchy appearance. The doctor stated that this smarting sensation and the appearance of it is typical of the moment of seeding or when the tubercular bacilli blocked the capillaries of the skin. He further stated that the course of events and the appearance of the lesion 'were conclusive of the fact that it is a hemotogenous tuberculosis. He further stated that the description given by Dr. Crecca, who appeared on behalf of the petitioner, of the lesion when he first saw it, a week or so after its appearance, is typical of a papillae necrotic tuberculi. The doctor stated that it was his opinion a typical endogenous tubercular lesion. He also stated that the X-rays taken of the petitioner’s chest also would suggest previous tuberculosis and that the treatments given to her would indicate that during this period of time her health had not been up to par, despite her statement that she was in good health prior thereto. The doctor stated that tuberculosis of the skin is common and the most likely place for tuberculosis of the skin to manifest itself is on the face. He stated that X-ray treatment is not indicated for an X-ray burn and that in his opinion this was an endogenous condition.

During the course of the trial respondent’s attorney asked the petitioner’s attorney, did he intend to take the deposition of Dr. Pfahler and Gilmore in Philadelphia, petitioner’s doctors, as he, petitioner’s attorney, had suggested to respondent’s attorney. Despondent’s attorney stated that two applications had been made to take the depositions of the missing doctors in Philadelphia and tentative arrangements made with a stenographer attached to this court to take the testimony de lene esse. Petitioner’s attorney stated that he was not going to take any depositions and thereupon respondent’s attorney called for the production of a letter sent by Dr. C. E. Pfahler of Philadelphia to petitioner’s attorney dated December 19th, 1940. The letter was produced and reads as follows :

“December 19, 1940.

Perry E. Belfatto, Atty.

790 Broad St.

Newark, N. J’.

Be: Miss Nellie Daniels

Dear Mr. Belfatto:—

I have your letter of December 18th. Before arranging for any deposition from me, I want you to know that I have never looked upon or diagnosed the case of Miss Daniels as an X-ray burn, and if I am called upon to testify, I will swear that it is not an X-ray burn and there is no evidence of an X-ray burn. She had tuberculosis of the skin proven both clinically and microscopically, and it is my opinion that X-ray exposure had nothing whatever to do with it.

It would seem that before you file any petition on the basis of an X-ray burn, you should have made some inquiry as to any such evidence.

Yours very truly,

P:M O. E. Peahlek (signed).”

Petitioner thereupon called for the production of a letter from Dr. Asher Yaguda to the Bankers Indemnity, which was produced and set forth that Dr. Yaguda could find no causal relationship but that in view of the fact that there might be neurological developments he would suggest that the matter be disposed. of as speedily as possible by way of settlement.

After listening to the testimony and carefully considering all the evidence adduced before me written as well as oral, and observing the witnesses, and their demeanor on the stand, as well as considering whether they were disinterested or biased, I have come to the following conclusion, and do hereby determine as a matter of fact,

(1) That the petitioner has failed to sustain the burden of proving by a preponderance of the evidence, that she sufferecl an X-ray burn (as alleged in the petition) and that the scarred condition oí her face came as the result of an X-ray burn,

(2) That the petitioner has failed to prove that a tuberculous lesion was engrafted or superimposed upon any primary X-ray burn, which conditions led to the scarimg as exhibited on petitioner’s face,

(3) The petitioner having failed to prove that she sustained an-X-ray burn as alleged on August 15th, 1938, or that such alleged X-ray burn was the underlying factor in the production of a tuberculosis lesion engrafted thereupon,

It is, therefore, on this 8th day of August, 1941, ordered that petition of petitioner be and the same is hereby dismissed.

John C. Wegner, Deputy Commissioner.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES COOKE, PETITIONER, v. COOKE & COLE SILK CO., INC., RESPONDENT.
    Decided September 16, 1941.

      For the petitioner, J. Vincent Barnitt.

    For the respondent, George E. Meredith (Walter W. Eiubley, of counsel).
   The following in substance are the undisputed facts developed by the evidence: On April 15th, 1939, and for nineteen years prior thereto, James Cooke, the petitioner herein, was regularly employed by the respondent at its plant in Paterson, Flew Jersey, as a silk twister, receiving for his said services wages at the rate of forty dollars ($40) per week. In addition thereto he served as one of the officers of the respondent-corporation in the capacity of president, performing merely perfunctory and nominal services for which he received no remuneration. While his duties as a silk twister consisted chiefly of preparing new warps to replenish the various looms from time to time, he would also assist the loom-fixer, John DePuyt, as occasion arose, in lifting and installing new warp beams into the frames of the looms. It so happened that Cooke was engaged in the latter capacity at the time of the mishap, which, according to his testimony, occurred about eleven o’clock on the above morning, when he was seized with a shooting pain across his upper left chest during the act of lifting a fresh warp beam, approximately 300 to 350 pounds in weight, and inserting it into the loom frame with aid of the loom-fixer. He testified that immediately thereafter he experienced a dizzy feeling; that “everything seemed to go black” (sic); and that he uttered to his companion, DePuyt, “By God, there is something; there is something funny, Jack.” At lunch time he felt too ill to eat and for the rest of the day he refrained from doing work of any kind, merely sitting around and resting until 3 :30 p. m., when he left for his home. He noted very little change in his condition, if any, upon his arrival at home; partook of no dinner that evening save for a cup of tea; and retired to bed around nine o’clock. Shortly after midnight- — -at approximately one o’clock the next morning, he was aroused from his sleep by sharp pains in the same area of the chest, accom-' panied by shortness of breath, which pains'appeared to be of greater severity than those of the day before and seemed to radiate upward into the region of the left armpit. In an effort to relieve himself of the pain, Cooke arose from bed and applied Tick’s salve to his chest, rubbing it in over the affected area but with no avail. Although resumption of work on April 14th, 1939, was cowfro-indicated because of his grave condition, he nevertheless reported for duty at the usual time between seven and eight o’clock. Shortly after eight o’clock it became necessary for him to ascend a ladder to a gantry — an elevated platform forming part of a Jacquard loom, to make an inspection of the machine, and upon descending the said ladder, he felt weak, dizzy and sick to his stomach with an urge to go to the toilet and defecate. Upon leaving the toilet, he appeared to stagger as he walked through the hallway, and only through the timely aid of a fellow worker was further injury averted when he grabbed Cooke just as he was about to collapse and fall. Because of his seemingly grave condition, he was lain prone on the floor so he might rest for awhile, and attempts were resorted to in an effort to revive him — one of the girl employees bathing his forehead with cold water. He was taken home in an automobile later in the morning by his son and daughter and was assisted to bed by them. Dr. Paul Kauschenbach, Jr., was thereupon summoned; he arrived at petitioner’s bedside shortly after 9 :00 A. st. and before making an examination he first obtained a history from the petitioner. Upon examination, he found petitioner in a state of collapse and acute shock; perspiring freely; cold and clammy; thready pulse; low blood pressure; subnormal temperature; distant heart sounds. Petitioner’s chief complaints were pains in left chest radiating to arm and down to the fingers. Dr. Kauschenbach diagnosed the condition as one of coronary occlusion, administered a hypodermic injection of morphine, and then turned the case over to Dr. John E. Leach, an internist and cardiologist. At 2:00 p. m. on the same day, the petitioner was attended by Dr. Leach who obtained a history and observed upon his examination findings similar to those obtained by Dr. Kauschenbach. He diagnosed the case as myocardial infarction caused by the lifting episode on April 13th, 1939, and subsequent collapse on April 14th, 1939. His treatment consisted of rest in bed for seven weeks, medication and restricted exercise. At the present time Cooke suffers from general weakness, pains in left chest and left arm, difficult breathing and tires easily especially upon ascending stairs or walking to the corner. Admittedly he is totally incapacitated at the present time and has never resumed work since the day of his collapse at the respondent’s plant.

Petitioner’s right to a recovery of compensation is challenged by the respondent upon the ground he has failed to sustain the burden of proving an accident arising out of and in the course of his employment; and upon the further ground that his present condition is due to natural causes, and not the result of a compensable accident.

$$**$$*

The principle that the Workmen’s Compensation Statute is remedial and should be broadly and liberally construed has been especially extended by the courts in interpreting and construing the word “accident” as used therein. The word “accident” should be interpreted in its usual, ordinary and popular sense as an event which takes place without one’s foresight or expectation; an undesigned, sudden and unexpected event, change, contingency; an occurrence which proceeds from an unknown cause, or which is an unusual effect of a known cause and hence unexpected and unforeseen. On the subject of what constitutes an “accident” within the intendment of the statute, it has been generally held that personal injury by accident may include strain. It seems hardly necessary to refer to citations and adjudications in support of a principle so universally accepted. And in the case of Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832, the principle was expanded to include cases involving strain of the heart, holding that an accidental strain of one’s heart, even though the heart was previously weakened by disease, is a compensable injury.

In Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409, the leading case in New Jersey dealing with coronary occlusion in which recovery was allowed, Mr. Justice Bodine, who delievered the opinion for the Court of Errors and Appeals, cites with approval the case of Clover, Clayton & Co. v. Hughes, 3 B. W. C. C. 284, in which Lord Loreburn stated the rule as follows: “I do not think we should attach any importance to the fact that there was no strain or exertion out of the ordinary. It is found by the county court judge that the strain in fact caused the rupture, meaning no doubt, that if it had not been for the strain, the rupture would not have occurred when it did. If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade. Ivor do I think we should attach any importance to the fact that this man’s health was as described * * *. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health.”

In Quay v. Brown Co., 83 N. H. 392; 142 Atl. Rep. 697, it was decided, first, that compensation may only be had for an accidental injury; and second, that the accidental feature may consist either of cause or effect. Chief Justice Peaslee, in delivering the opinion of the Supreme Court, said: “As stated in some of the cases, it is no less an accident when a man suddenly breaks down than when there is a like mishap to the machine he is operating. ETor is it a defense that the workman had some predisposing physical weakness, but for which he would not have broken down. If the employment was the cause of the collapse, in the sense that but for the work he was doing it would not have occurred when it did, the injury arises out of the employment. Citing cases * * *. If the design of the statute were merely to impose a new rule of liability for fault, there would be force in the contention that, where unusual physical weakness of the workman, not known to or reasonably discoverable by the employer, is a contributing cause for the injury, there should be no recovery. But the act has a very different object in view. Compensation is not dependent upon any fault of the employer, but is awarded whenever the fortuitous event overtakes the workman in the course of and out of his employment. Its object is alleviation of misfortune and not compensation for a legal wrong.”

And in the very recent case of McCormick Lumber Co. et al. v. Department of Labor and Industries et al. (Washingington Supreme Court, decided January 7th, 1941, and not yet reported), the court held: “An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of the workman’s health. To say now that some unusual effort or strain is necessary to render death compensable, would not only be in direct conflict with the language of this court’s holdings, but would also introduce an element of uncertainty and confusion, in that every case would present a problem as to the standard to be used in determining whether or not, in a given instance, the exertion was unusual, and whether or not the workman was expending only the ordinary exertion required in a particular employment.”

Applying these accepted principles to the present case, I feel reasonably satisfied that the proofs herein meet with the required tests. While it is true that, at the time of the accident on the morning of April 13th, 1939, Cooke was engaged in the performance of one of his usual tasks — that of assisting in the lifting of a 300 to 350 pound warp beam into a loom, which was part of his regular work, the resulting effect of such lifting on that occasion upon his heart was unusual and constituted an “unlooked-for mishap or untoward event which was not expected or designed.” It is of no consequence that the petitioner had lifted warp beams as a daily routine for many years prior to the day in question, some of which warps weighed considerably in excess of 350 pounds; what distinguishes the present lifting from the prior ones is the unusual and unexpected affect resulting therefrom; the physical -strain superinduced by the lifting at that precise moment was more than his heart could withstand. That which distinguishes an accident from other events is the element of being unforeseen and unexpected. An accident is an occurrence which proceeds from an unknown cause, or which is an unusual effect from a known cause, and hence unexpected and unforeseen.

As to the second and equally important question, dealing with causal relation, injury and disability, there is presented the usual conflict of opinion between the medical experts; but the weight of the medical testimony is plainly, if not indeed overwhelmingly, in favor of the petitioner. A review of the lengthy medical testimony of the various physicians offered in behalf of the respective parties discloses a definite contrariety of medical viewpoint both as to diagnosis as well as to causal relation.

% i\i # sj< sH

The respondent, in urging for a dismissal of the present claim, seems lo place undue stress upon the fact that Cooke was of advanced age, to wit sixty-nine years; that he was gradually nearing the end of his productive days as an industrial worker; and that a physical breakdown due to deterioration by age might be expected sooner or later irrespective of his employment. Such contention, of course, is wholly without substance. The act prescribes no standard of fitness or age to which an employee must conform. Compensation is not based upon any implied warranty of health or immunity from latent and unknown tendencies to disease, which may develop into positive ailments if excited into a state of activity by trauma. Mr. Justice Perskie, speaking for the Supreme Court in the case of Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554, enunciated the apposite rule, to wit: “Until such time as it may be provided to the contrary, by proper authority, the beneficent provisions of the act must and shall be extended alike to the weak and sick as well as to the strong and able, so long as those of either class, coming under the provisions of the act, sustain a compensable accident.”

The physical condition of the petitioner was not that of a young and vigorous man, but was comparable to a man of his years. He suffered from degenerative changes usually found in a person of his age, including arteriosclerosis of his vascular system. So, if he had been seized with a coronary attack while at home at rest or while at work doing a task requiring no physical effort, such occlusion would have been a natural and probable result of his impaired coronary vessels, and so would have possessed none of the essentials of an accident within the purview of the act. Coronary occlusion in a man of petitioner’s age and make-up could have been normally expected to occur at any time, yet its actual occurrence might have been long deferred. The disease or malady, however, did not run its natural course. The petitioner was precipitated into total incapacity because of cardiac impairment as the result of the trauma. To hasten one’s incapacity is to cause it.

Furthermore, the evidence establishes the fact that the petitioner’s physical breakdown began immediately after the accident. Prior thereto, according to his testimony, he was a steady worker, in good health, strong in body and one who rarely, if ever, lost any time from work by reason of illness; but since the accident he has suffered with a gradual decline in health, shortness of breath, general weakness and easily fatigued.

That physical strain or effort may be a competent cause in precipitating the development of coronary occlusion is no longer open to doubt. Like any other diseased condition, arteriosclerosis of the coronary vessels may, under certain circumstances, be aggravated by such trauma, resulting in a final occlusion. See Hertzberg v. Kapo Dyeing and Printing Co., 19 N. J. Mis. R. 201; 18 Atl. Rep. (2d) 736; Hentz v. Janssen Dairy Co., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409; Wagner v. Lewis, 13 N. J. Mis. R. 807; 181 Atl. Rep. 394; Geltman v. Reliable Linen Co., 18 N. J. Mis. R. 423; 13 Atl. Rep. (2d) 844; Hayes v. Bloomfield Church, 18 N. J. Mis. R. 139; 11 Atl. Rep. (2d) 417.

Hr Hi ❖ H* & # 3«

In the present case the burden of proof which rests upon the petitioner to establish his right to compensation has been met.

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It is, therefore * * * adjudged, determined and ordered, that judgment final be entered in favor of the petitioner and against the respondent.

3$ $ $ $ * $ $

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LONZY MAYBIN, PETITIONER, v. D. L. & W. COAL COMPANY, RESPONDENT.
    Decided September 2, 1941.
    For the petitioner, Herman M. Wilson.

    For the respondent, John W. Taylor (Everett Reinhardt, of counsel).
   This matter presents for determination the question of the extent and nature of certain disabilities suffered by the petitioner as a result of an accident which admittedly arose out of and within the course of his employment on August 8th, 1934.

It appears from the testimony that the petitioner on the above date fell from a scaffold and sustained injuries to his back and abdomen. He remained under treatment for a period of 48 5/7 weeks, a portion of which time he was confined to the St. Michael’s Hospital. As a result of the injuries sustained he suffered among other things from a compression fracture of the eleventh dorsal vertebrae, a laceration of the spleen and omentum.

Following the aforesaid period of temporary disability and more particularly on the 13th day of February, 1936, a settlement was consummated between the parties and approved by Deputy Commissioner John J. Stahl, under the terms of which the petitioner was allowed in addition to the temporary disability aforesaid, compensation for permanent disability for a period of 250 weeks or 50% of total.

Petitioner now alleges that the disability since such occasion has increased. He testified that he has at no time since this accident been able to return to any kind of work whatsoever and he suffers from considerable pain in his back, pain in his abdomen and has a dizzy and weak feeling.

It appears also from his testimony that prior to the accident of August 8th, 1934, he suffered other accidental injuries, among which was an injury to his head resulting in a large scar on his forehead; a fracture of the left wrist and amputation of a portion of the middle finger of his left hand and that he also suffered a luetic condition at about the age of 20 years.

There appeared on behalf of the petitioner Dr. Max Singer, and he testified that he examined the petitioner on several occasions prior to the disposition of this case and on two occasions since. He stated that petitioner was suffering from a compressed fracture of the eleventh dorsal vertebrae; that he still had a large abdominal scar, which was the result of surgical treatment rendered for the lacerated spleen. As a result of these conditions this witness felt that petitioner’s disability approximated 75% of total. There was, however, in addition to these, evidence of an existing luetic condition, a disability in petitoner’s wrist due to an old fracture, unrelated to the accident herein; an amputation of a portion of the middle finger of his left hand and a scar on his forehead, due to accidents occurring before the one involved in the case at bar.

These disabilities he stated, together with the injuries resulting from the accident herein, were such that the petitioner from a standpoint of a physiological unit was totally disabled.

Dr. William Ein, appearing as a witness on behalf of the petitioner, testified that he conducted physical and X-ray examinations of the petitioner; that he found in addition to the compressed fracture of the eleventh dorsal vertebrae there had occurred an osteo-arthritic bridging between the eleventh and its adjoining vertebral bodies. This he stated was due to the result of this accident. He also related in detail the abdominal scar and the general arthritic and surgical condition from which petitioner was suffering. In his opinion, the petitioner as a result of the accidental injuries sustained herein, was disabled to the extent of 66 2/3% of total, but that the many previous accidental injuries and his pre-existing luetic condition added to that disability, make him presently totally disabled.

Dr. Ambrose F. Dowd, testified that he had examined the petitioner. From a neurological standpoint petitioner was disabled approximately 30% of total; that this neurological disability was made up of the result of his previously existing luetic condition, which he felt was not aggravated by the accidental injuries, and certain neurological sequellae of the accidental injuries sustained herein.

There was also submitted to him a hypothetical question incorporating the essential factors of Dr. Ein’s and Dr. Singer’s testimony, taking all of these factors into consideration, together with his neurological study of the case, he felt that the petitioner was presently totally disabled; that this disability was made up of several pre-existing accidental injuries and pre-existing luetic diseases and such disability as has resulted in the accident of 1934.

On behalf of the respondent, Dr. Albert Harden appeared as a witness. He testified that he treated the petitioner for the injuries sustained as a result of his accident with the respondent herein. His enumeration of these conditions and his diagnosis was substantially the same as that testified to by Drs. Ein and Singer. He expressed the opinion that as a result of these accidental injuries the petitioner suffered a disability of 70% of total; that in addition thereto he was suffering from certain other disabilities which were not related to the accident; namely, scar on his forehead, a fractured wrist, an amputated finger and a luetic condition.

Dr. George Meehan testified as to his examinations both prior and subsequent to the previous disposition of this matter. He described in detail the various findings, in substance they indicated that the petitioner has sustained an increase disability and at present was disabled as a result of the injuries of 1934 to the extent of 66 2/3% of total. He stated also that petitioner was suffering from certain other disabilities which were unrelated to the accident and the accumulation of all of his disabilities were such that he was of the opinion that petitioner presently is totally disabled.

Dr. Jack Blumberg, testifying on behalf of the respondent, particularly stressing the neurological aspects of the case, testified that he was of the opinion that petitioner’s disability resulting from the accident herein disabled him to the extent of 70% of total. That in addition thereto, the other disabilities existed, which together with that 70% totally disabled him. He felt, however, that while petitioner was presently unable to do any work- that he might in some measure be rehabilitated and recommended that some form of occupational therapy be attempted, this concurred with the opinion as expressed by Drs. Dowd, Singer and Ein.

After carefully considering all of the evidence presented herein, I hereby find and determine as follows:

$ $ >!•

That as a result of the injuries sustained in said accident, the petitioner suffered a permanent disability to the extent of 70% of total for which he is entitled to receive compensation for a period of 350 weeks at the rate of $17.50 per week and on account of which compensation has heretofore been paid for a period of 250 weeks.

It is, therefore * * ■ * ordered that judgment be entered in favor of the petitioner and against the respondent for compensation for a period of 100 weeks to be paid at the rate of $17.50 per week.

$$$$$$$

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    FANNY B. ZEMEL, PETITIONER, v. THORNBY REALTY CO., INC., RESPONDENT.
    Decided August 6, 1941.
    For the petitioner, Edward J. O'Brien.

    For the respondent, Edward Keubler.

   *******

The petitioner alleges that she is the wife and a dependent of the decedent, Meyer Zemel, who was employed by the respondent on April 5th, 1940, as a rent collector and manager of a gasoline station. On that day, while performing his duties as manager of the gasoline station he was fatally wounded during a holdup.

The petitioner testified in her own behalf regarding her marriage and dependency and she called as witnesses her son, Louis Zemel, Police Officers Biker and Schimpf and Harold Feurerstock.

Louis Zemel testified that he was president of the respondent company and that on the day on which the decedent was shot he was employed by the respondent as a rent collector and manager of the gas station. Louis Zemel testified that the decedent, his father, was the rent collector for the Thornby Bealty Company which was running the gas station. He testified that the decedent was the day manager of the gasoline station run by the Thornby Bealty Company, and that the decedent’s $50 a week salary was paid to him and earmarked from the money of the gas station in question. He testified that his father, the decedent, opened the station at about five in the morning until about seven o’clock when the men came on and that thereafter he was around the station doing various jobs throughout the day. He testified that he, the witness, came there in the evening and assisted there in the evening. Louis Zemel testified that the Thornby Realty Company had to take over the gas station approximately 1934, and they have been operating it ever since. He further stated his father worked around the station approximately twelve hours a day, on the average, and that he had a social security number which he got from paying social security benefits as an active employee of the Thornby Realty Company. The social security number was offered in evidence and marked as an exhibit on behalf of the petitioner. The various books and records of the respondent which were produced by this witness and offered in evidence bore out his statement and the fact that the decedent was paid a salary of $50 a week on which social security benefits were paid.

Harold Reurerstock testified on behalf of the petitioner that he was employed at the gas station and that on April 5th, 1940, and for a long time prior-thereto the decedent had been the manager of the station.

Officers Rifeer and Schimpf testified on behalf of the petitioner regarding the circumstances in which they found the decedent after the holdup. They testified that they arrived at the scene shortly after the holdup and found the decedent in the station doorway where he had been shot during the 'holdup when the burglar attempted to rob the station.

The respondent offered as a witness one Martin Garret, connected with the Maryland Casualty Company, the insurance carrier for the respondent, in an endeavor to show that decedent was an inactive officer associated with the respondent, that he had gotten such an impression. There was no evidence on behalf of the respondent produced to show that the decedent was not in fact the rent collector and gas station manager of the gas station operated by the Thornby Realty Company, or that he had not received $50 a week as such manager of the gas station, earmarked from the funds of the gas station, at the time of his death and for some time prior thereto.

The greater weight of the testimony discloses that the petitioner has sustained the burden of proving that the decedent, Meyer Zemel, was on April 5th, 1940, employed by the respondent as manager of its gas station at 636 Springfield avenue, Newark, New Jersey, at a salary of $50 per week; that on the aforementioned date a holdup occurred during which the decedent was shot and from which wounds he sudsequently died; that the said holdup and shooting and the resulting injuries and death were the result of an accident arising out of and in the course of decedent’s employment with the respondent.

& Jj* if: % £ ❖

John C. Wegner, Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    ESBECO DISTILLING COMPANY, PETITIONER, v. J. H. THAYER MARTIN, STATE TAX COMMISSIONER, RESPONDENT.
    Decided September 9, 1941.
    For the petitioner, William F. Jordan.

    For the respondent, William H. Osborne, Jr.

   Quinn, President.

Petitioner appeals from an assessment by the Alcoholic Beverage Tax Division of the State Tax Department, of a sale or delivery of certain alcoholic beverages, made under circumstances hereinafter related, and in pursuance of N. J. S. A. 54:43-1. It is not clear whether petitioner’s appeal is based upon the theory that the transaction under review did not constitute a sale or delivery in this state, or whether it is contended that the disposition of the beverages is tax free, as intended for resale and consumption outside the state, under N. J. S. A. 54:43-2. The exclusionary provisions contained in the section last mentioned are available only in favor of a licensed manufacturer or licensed export wholesaler. Since petitioner is not in either of these categories, but only a licensed wholesaler, it cannot avail itself of that section, and our attention must be confined hereinafter to the question as to whether the transaction was or was not a “sale or delivery within this state of alcoholic beverages intended ultimately for consumption.” If it was, it is expressly subject to tax under N. J. S. A. 54:43-1.

On September 8th, 1939, Field’s Retail Liquor Store, of Schenectady, Yew York, hereinafter designated as Field’s, wrote to petitioner, at its Yew York office, expressing an interest in purchasing five barrels of rye whiskey of a type previously purchased, to be delivered bottled and labeled. Petitioner replied September 11th, 1939, to the effect that it could not supply the rye, but could possibly supply bourbon of the quantity requested. On September 15th, 1939, it wired Field’s, as follows: “Ours eleventh have option expiring tomorrow also received sample quality satisfactory wire if wanted;” to which Field’s wired: “We can use five barrels bourbon four years old.” The same day petitioner confirmed the exchange of wires, adding, “We will try and order five barrels of bourbon for you, if we can got it.”

On September 21st, 1939, petitioner wrote Field’s that it had “finally succeeded in obtaining the 5 Bbls. October ’35 Continental Bourbon, certificate Yo. 8648, barrels 525273/7,” and that it had the warehouse receipt. There then followed a request for information as to the type of label desired by the purchaser, so that the form could be officially approved and the goods bottled. Price ivas described as “a little less than the 5 Bbls of Old Mac Rye” (previously sold).

On October 5th, 1939, petitioner advised that the goods would be shipped through Henry Kelley & Sons, Inc., of Yew York. This, it appears from the proof, was necessary because of the expiration of petitioner’s Yew York license on October 1st, 1939.

On October 11th, 1939, petitioner wrote to Lehigh Warehouse and Transportation Co., Inc., in Elizabeth, New Jersey, enclosing warehouse receipt for the liquor in question, sit'uated in Philadelphia, and requested that the Lehigh company order the merchandise tax-paid and delivered to its warehouse for bottling in bond under a label attached, and thereafter to ship it to Field’s, freight collect. Finally, it advised, “Please forward your bills covering the charges incurred,” and, “the transit receipt should show that shipment is being made by Henry Kelley & Sons, Inc.”

It is conceded by petitioner that the Lehigh Company did obtain the goods from Philadelphia, bottled them in bond, and shipped them from Elizabeth to Schenectady, freight collect; that thereafter petitioner billed Henry Kelley & Sons, Inc., and the latter, in turn, billed Field’s at a higher price for the beverages. The cost of the bottling was paid by petitioner to the Lehigh Company, as billed. Petitioner did not bill Field’s for merchandise, services, or charges, nor was any payment ever made by Field’s to petitioner.

Petitioner contends that the foregoing facts establish a fully consummated sale to Field’s prior to the removal of the goods from Philadelphia to Elizabeth; that what it, petitioner, did thereafter, was as agent of Field’s, and at its risk, and that Field’s was not taxable under the New Jersey laws, in the premises. It appears to this board, however, (1) that title remained in petitioner until the goods were shipped at Elizabeth, and (2) that if, under the law of sales, the property in the merchandise passed to Field’s at some earlier point of time, there was nevertheless a taxable disposition of the alcoholic beverages in this state.

(1) We regard it as clear that Henry Kelley & Sons, Inc., never had title. Its intervention in the transaction was accepted by all parties as a convenient means for circumventing petitioner’s lack of a New York license, and it was'permitted to earn a fee for lending its name. The deal was always one between Esbeco and Field’s. We regard it as inescapable, furthermore, that Field’s was buying bottled, labeled, tax-paid liquor, not five barrels of liquor in bulk, and that until petitioner had had the beverages reduced to the deliverable state contemplated by the parties, it retained title. Under N. J. S. A. 46:30-25, unless a different intention appears, “where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done.” That rule of construction is plainly applicable here. Title passed, and the sale was consummated at Elizabeth, when the goods were put on board, freight collect, with the buyer’s acquiescence.

(2) Whether or not the foregoing views as to the passage of title, in a technical sense, are sound, there was a taxable “sale or delivery,” under the act. Under N. J. S. A. 54:41-2, containing definitions under the Alcoholic Beverage Tax Act:

“ 'Sale’ means and includes, in addition to its ordinary meaning, any exchange, gift, loss, theft, or other disposition.” (Italics supplied.)

We regard it as plain that every “disposition,” in a broad and literal sense, of alcoholic beverages, in this state, is intended by the legislature for taxation under the act, unless specifically excluded from taxation under one of the exclusionary provisions expressly provided therein. See, e. g., Schenley Distributors v. State Tax Commissioner (Stats Board, 1940), 18 N. J. Mis. R. 266; 12 Atl. Rep. (2d) 638. The history of the merchandise here in question during its plrvsieal presence in this state, was clearly a disposition or delivery of it, whether or not a legal sale transpired here. Petitioner points out no applicable exclusionary provision. The transaction was, therefore, for either of the reasons stated, taxable, and the assessment is affirmed. Appeal dismissed.


text:
    State Board of Tax Appeals.
    HOWARD G. TOONE, PETITIONER, v. CITY OF CAMDEN, RESPONDENT.
    Decided September 9, 1941.
    Por the petitioner, Samuel H. Richards.

    Por the respondent, John J. Crean and William J. Shepp.

   Quinn, President.

So far as this board is concerned, the only meritorious question involved upon this appeal is whether the assessed value' for the year 1938 of premises Ho. 455 to 461 Kaighn avenue, in the City of Camden, in the sum of $165,450 (land, $119,625, improvement, $45,825), is in excess of the true value of the property as of October 1st, 1937. R. S. 54:4-23; N. J. S. A. 54:4-23. As another aspect of this controversy has been before the Supreme Court on certiorari, however, and since that tribunal has stated that this board is competent to give whatever relief should be given, we herewith outline the full story of the matters in dispute. See Toone v. Camden (Supreme Court, 1940), 124 N. J. L. 339; 11 Atl. Rep. (2d) 839.

Three separate appeals from the assessment of the property for the year in question were taken to the Camden County Board of Taxation, one by McCrory Stores Corporation, lessee of the premises, one by McCrory Stores Corporation, as agent of Howard G. Toone, et al., owners, and the other by Howard G. Toone, owner. All three appeals were heard by the county board on October lltli, 1938. The record shows two couidy board judgments, dated November 3d, 1938, adjudging “no reduction,” another judgment dated December 5th, 1938, allowing a reduction of $20,000 on the improvement, and still another judgment, designated “corrected judgment,” dated December 13th, 1938, adjudging “no reduction.” On December 8th, 1938, at the request of the owner, the city comptroller refunded the sum of $860 to him upon the basis of the reduction granted by the December 5th judgment. Thereafter, upon receipt of the “corrected judgment,” the city entered a delinquency upon its tax records in the amount of the check, $860, with interest. On December 14th, 1938, the present appeal was filed with this board from the action of the county board in disallowing a reduction. In August, 1939, the Director of Bevenue and Finance of the city gave petitioner notice of intention to sell the property for unpaid taxes, whereupon it sued out a writ of certiorari in the Supreme Court to review the validity of the resolution of sale.

This board withheld action on the present appeal, pending disposition of the writ by the Supreme Court. As herein before indicated, the writ was dismissed, for the stated reason that this board is competent to give any proper relief in the premises. We suppose the court intended that the propriety of the tax sale would be directly affected by such determination as this board should make concerning the proper amount of assessment for the year 1938, and that the parties should therefore await such determination in advance of an application to the court, based upon actions resulting from the several county board determinations. This board has, of course, no authority to restrain the city from conducting a tax sale, or to review the validity of a resolution authorizing same. It can only review the actions or determinations of the county boards, N. J. S. A. 54:2-35, 54:2-39, but, in so doing it may review errors of jurisdiction as well as upon the merits. Borough of Oradell v. State Board of Tax Appeals (Court of Errors and Appeals, 1940), 123 N. J. L. 86; 8 Atl. Rep. (2d) 100.

Reviewing the several proceedings before the county board, it is clear that the only determinations of that tribunal which were within its jurisdiction to make were the judgments dated November 3d, 1938. The others, dated subsequent to November 15th, 1938, and presumably representing determinations arrived at upon the dates endorsed upon the judgments, were void as in violation, of R. S. 54:3-26, requiring the county board to determine all appeals within three months after the last day for filing such appeals (on or prior to November 15th). There is nothing before us to indicate that such determinations were made at any other time than the dates of the judgments. In view of the foregoing, we need not reflect upon the propriety of the reversals by the county board of its prior determinations. But see City of Newark v. Weyerhaeuser Timber Co., New Jersey Tax Reports, 1934-1939, p. 530.

We accordingly proceed to consider the appeal as being simply from a county board judgment denying any reduction in the assessed valuation. This we may do, either upon the hypothesis that the appeal is from the judgments dated November 3d, 1938, or, for the reason that if the county board made no determination whatever, coram judice, upon Mr. Toone’s appeal, then the appellant may nevertheless have his right of review of the assessment before this board.

The petition of appeal requests that the assessed value of the improvements be reduced from $45,825 to $11,456. However, the expert witness for the petitioner gave a valuation for improvements of $40,000. In our opinion, this is the valuation which should be adopted, giving due weight to the testimony of the owner of the property that the second and third floors of the building were not being used to any substantial extent, as of the assessing date, having been eonclemned as unsafe by the city building inspector, and to the uncontradicted testimony that the building was in process of demolition. We conclude that the true value of the building was not in excess of the $40,000 appraisal made by petitioner’s witness.

As to the land assessment, petitioner seeks a reduction from $119,625 to $80,000. The land in question is a corner property in a busy business section of the city, having 80 feet of frontage on Kaighn avenue and almost 100 feet of depth along Broadway, the main entrances being on Kaighn avenue. An expert witness for petitioner valued the land at $500 per front foot with 100% for corner influence, or a total of $80,000. The city’s witnesses divided the tract into parcels of varying unit value, one on Broadway frontage, the other on Kaighn avenue. The former is not properly subject to consideration, as founded on a hypothesis other than condition in which the property was actually being used and held by the owner. Stevens Institute v. State Board (Supreme Court, 1928), 105 N. J. L. 99; 143 Atl. Rep. 356; C. F. Mueller Co. v. State Board of Tax Appeals (Supreme Court, 1941), 126 N. J. L. 141; 18 Atl. Rep. (2d) 564. This expert valued the land at $131,200, as compared with a figure of $129,000 arrived at by the other city witness. Upon an analysis of the testimony of all the experts, and a personal inspection of the property, we determine the true value of the' land to be $112,000, which, added to the $40,000 valuation for improvements hereinabove determined, will result in a total assessment of $152,000. It will be so adjudged.

In view of this conclusion, resulting in a reduction of the original assessment by the sum of $13,450, it is to be expected that the city will amend its record of delinquency as to this property, to the extent of such reduction.