author: Harry S. Medinets, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SYLVESTRO CANDITO, PETITIONER, v. FAIRMONT CONSTRUCTION & NICHOLSON ENGINEERING CO., LIBERTY MUTUAL INSURANCE CO., RESPONDENT.
    Decided July 22, 1941.
    For the petitioner, David Boskein.

    For the respondent, John W. Taylor.

   *******

The record in this court and the stipulation of counsel discloses that a determination of facts and rule for judgment was entered on June lJth, 1938, wherein it was determined and adjudicated that the petitioner suffered an accident arising out of and in the course of his employment with the respondent on December 18th, 1935, and for the ensuing disability was awarded temporary compensation for 20% of partial permanent total disability at the compensation rate of $20 a week.

The petitioner presently alleges that his disability has increased and progressed beyond the 20% of total found to exist at the last adjudication and that he is now suffering from a disability which is total in character and permanent in quality. The respondent’s medical experts conceded that the petitioner’s disability has increased since the last adjudication but contend that he is not totally and permanently disabled. Thus the issues to be determined are (1) whether or not there has been an increase in the petitioner’s disability since the adjudication of June 17th, 1938, and (2) if so, 'the extent of the petitioner’s present permanent disability as a result of the said accident.

In resolving the conflict thus presented by the evidence I have had an opportunity of not only hearing the testimony of the petitioner and his various witnesses, but have also observed them, particularly the petitioner, while in court during the several days that this case was tried before me.

A brief recital of the facts and circumstances disclosed by the evidence and the record is not amiss. The petitioner, whose apparent good health and capacity for laborious work prior to the accident in question is uncontroverted, was employed on December 19th, 1935, by the respondent in the performance of certain work on a tower about 75 feet high. A fellow workman who was stationed about 30 feet above him dropped a cement block, part of which block broke off and struck the petitioner on the left shoulder, while another portion grazed his head. He was at once sent to the respondent’s office and then referred to a doctor for first aid. The injuries which he thus suffered thereafter necessitated a continuous course of medical treatment by numerous physicians both in New Jersey and elsewhere including a Dr. Cotton of Boston, Massachusetts. From the date of that accident to the present time, the petitioner has been unable to resume his usual work or pursue any gainful occupation. There appears to be no serious medical dispute that in addition to the orthopedic injury, the petitioner also suffered a traumatic neurosis by reason of this accident.

On behalf of the petitioner the medical testimony of Doctors Max Hummel, Lewis Loeser and C. C. Beling was adduced. Both Dr. Kummel and Dr. Loeser had occasion to treat the petitioner for the injuries and their sequela which lie suffered in the aforesaid accident. By reason thereof these physicians were in a position to make comparisons between the physical condition of the petitioner both prior and subsequent to the last adjudication. They were of the opinion that his disability as a whole had markedly increased and while the injury to the petitioner’s left shoulder had shown some improvement from an orthopedic standpoint, it was very evident, that the post traumatic psychoneurosis had progressively become worse and was accompanied by a decided increase in the various symptoms. It was the opinion of the petitioner’s doctors that he is now totally and permanently disabled.

On behalf of the respondent there testified Dr. Jack Blumberg and Dr. Ambrose Dowd, neurologists, who examined the petitioner on numerous occasions. They, too, had seen the injured employe both before and after the last adjudication and their comparative findings disclosed that there was an increase in the petitioner’s disability. They conceded that he was suffering from a marked psychoneurosis of a hysterical conversion type and that the psychiatric disability had increased since the last hearing. However, they were of the opinion that his permanent disability at present does not exceed 60% to 65% of partial permanent total. In reaching this conclusion, the respondent’s experts theorize that the petitioner could perform some light work of a sedentary character such as for example a time-keeper or other work which requires little, if any, real physical energy.

Thus the issue which I am called upon to determine resolves itself into a question of whether I am to be governed by theoretical possibilities as to what the petitioner might or could do in the pursuit of some gainful work or whether a more practical rule should prevail. Viewing the petitioner as 1 have on the several days that this case had been before me, both on the witness stand and in the court room, it is inconceivable that a person having his appearance, his facial expression, his mannerisms, his unusual expression while speaking, and his lack of full control of his bodily motion is capable of employment anywhere.

In passing it is well to observe that there is no doubt in my mind that these symptoms and mannerisms are honest and bona fide, nor do I entertain any doubt that the symptoms which he manifests are of a severe hysteria or psychoneurosis.

It is true that while his external physical appearance and demeanor is not the absolute test of the existing disability, this factor is to be considered in arriving at a determination of his disability within the meaning of the Workmen’s Compensation Act, particularly in the light of his undoubted inability to sell his labor in the open market by reason of his repelling external demeanor, appearance and conduct. Eberhardt v. Newark Cleaning and Dyeing Co., 120 N. J. L. 474; 200 Atl. Rep. 759.

Irrespective of the repulsive feeling one experiences in the immediate presence of the petitioner, and considering him as a psychologic unit, keeping in mind the nature of his orthopedic disability,- and what is vitally more important his mental and neurotic condition, I am constrained to accept a practical conception of what constitutes total disability within the meaning of the act. This man as I have observed him, is useless to himself and to society as he is now physically and mentally constituted. I cannot conceive of any normal pursuit in life that he is capable of performing in a practical and systematic manner. In my opinion any man who cannot pick up an ordinary household utensil and retain same in his grasp properly in the performance of a relatively minor activity, does not possess the requisite physical qualifications to engage in the normal activities of life. I am thus constrained to arrive at no other conclusion than that he is presently permanently and totally disabled.

While we may theorize with respect to what work, if any, this man possibly could perform, a more practical and pursuasive approach to this question is consideration of .the hard and seemingly relentless factors which one encounters in everyday life. The thought that rehabilitation might be of some avail and that the petitioner may be restored to some degree of normalcy by reason of rehabilitation and re-education is commendable. However, that eventuality is problematical and with which, for the moment, we cannot be concerned. The findings of disability must be as they existed at the time of the hearing. The bureau must deal with the situation as then presented. Simpson v. New Jersey Stone and Tile Co., 93 N. J. L. 250; 107 Atl. Rep. 36. Kor can any weight be given to the suggestion that the petitioner might perform some work at some undetermined time in the future. It is for this court to determine what compensation is due to petitioner by reason of his existing disability. I can only be guided by the facts before me, and not by uncertain possibilities in the-future. The only proper course is to deal with the case exactly as it stands at the time of the hearing. Feldman v. Braunstein, 87 N. J. L. 20; 93 Atl. Rep. 679.

The medical experts of both sides have conceded that there has been an increase in the petitioner’s disability since the last adjudication. I am of the opinion thaf the testimony and surrounding circumstances are not only pursuasive but compelling of the conclusion that ho is totally and permanently disabled. In reaching this conclusion I cannot place much weight upon the contention of the respondent that the man is theoretically employable. The evidence is barren of even a suggestion that the petitioner is familiar with the type of clerical or sedentary work which the respondent’s physician suggests he may be able to perform. ISTor has there been any showing that he has engaged or attempted to engage in that type of work. I feel that the respondent has wholly failed to carry the burden of proving this contention. Atchinson v. Colgate, 120 N. J. L. 425; 131 Atl. Rep. 921.

Accordingly I find and determine that the petitioner has met the burden of proving that his disability, resulting from the admitted compensable accident of December 18th, 1935, has increased since the last adjudication and that he is now totally and permanently disabled. The jurisdictional facts in this case are undisputed.

# * ■ :¡< # ;¡: %

Harry S. Medinets, Deputy Commissioner.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM QUINN, PETITIONER, v. HENRY BECKER & SON, INC., AND NEW JERSEY MANUFACTURERS CASUALTY INSURANCE CO., RESPONDENT. WILLIAM QUINN, PETITIONER, v. HENRY BECKER & SON, INC., AND GENERAL ACCIDENT F. & L. ASSURANCE CORP., RESPONDENT.
    Decided July 28, 1941.
    For the petitioner, David Roslcein.

    For the respondent Henry Becker & Son, Inc., and General Accident F. & L. Assurance Co., for accident of July 17th, 1939, James J. Sheffiingkon.

    For the respondent Henry Becker & Son, Inc., and New Jersey Manufacturers’ Casualty Insurance Co., for accident of December 14th, 1937, George E. Meredith.

   *******

There appears to be no dispute with respect to the employment of the petitioner by the respondent on the dates of the respective occurrences, nor is there any serious controversy that he met with an accident that arose out of and in the course of his employment with the respondent, Henry Becker & Son, Inc., on December 14th, 1937. The primary question presented for determination is whether the petitioner’s disability, the extent of which does not find any substantia] difference of medical opinion, is due to said accident or whether the incident of July 17th, 1939, if it is to be legally construed as an accident within the meaning of the Workmen’s Compensation Act, is to be charged with the resultant disability. Ordinarily, the same employee and employer being involved, it would be of only academic importance to decide this question. However, separate compensation carriers, who were respectively on the risk on the two aforementioned dates, have been joined in the two petitions as party respondents, and it thus becomes essential in order to adequately adjudicate the rights and obligations of all the parties here involved, to resolve that issue.

The evidence discloses without dispute that on December 14th, 1937, the petitioner was engaged in his regular work with the respondent as a driver of a milk truck. At about 8:00 A. M. that morning, while descending from his truck carrying a case of milk, he missed his step and fell, striking and injuring his right hand. The petitioner’s hand became swollen, caused him considerable pain, and subsequently the injured member showed some ecehymosis. Ho was directed to the New Jersey Manufacturers’ Hospital Association, where X-rays were taken and medical treatment was administered until December 22d, 1937. At first, petitioner’s hand was bandaged and later a leather strap was applied to his wrist which he has worn regularly since. He returned to work with the aid of a helper for about ten days and thereafter performed his usual duties without assistance. The testimony indicated, however, that during the interval between December 14th, 1937, and July 17th, 1939, the hand would become stiff on occasions and that he suffered a considerable weakness and loss of power in that member, so much so that objects did from time to time slip out of his fingers. Moreover, he also experienced difficulty in grasping objects.

On July 17th, 1939, during the course of his employment with respondent, the petitioner, while attempting to pick up several empty milk bottles, suddenly felt his right hand “give out,” after which further medical treatment was required. Upon reporting said incident to his employer, he was again directed by the respondent to the New Jersey Manufacturers' Hospital pursuant to the terms of his compensation policy with the New Jersey Manufacturers' Casualty Insurance Go. in force on December 14th, 1937. The physicians in that hospital took an X-ray of petitioner’s hand, and then refused to treat the petitioner, claiming that the said injury was not due to or associated with the accident of December 14th, 1937. The respondent thereupon referred the employee to the Géneral Accident F. & L. Assurance Corp. under the terms of compensation policy in force on July 17th, 1939. This carrier, after an investigation and a physical examination by its physician, Dr. L. A. Cahill, refused to consider the injury as compensable as the result of an accident under the terms of its policy and contended that the condition was due to the accident of December 14th, 1937.

The petitioner was thus refused medical treatment by both insurance carriers, and the respondent, mindful of the statutory duty of the employer to furnish medical treatment to an injured employee, assumed that burden, and directed him to several hospitals, as well as physicians and specialists, who rendered various and extended medical services in an endeavor to relieve him of the disability from which he was suffering and restore normal function to the injured member. The respondent also undertook to and did pay compensation during the period of temporary disability from October 22d, 1939, to February 26th, 1940, a period of 24 weeks, at the compensation rate of $20 per week. Furthermore, the employer, at the termination of the fiscal year, reimbursed the petitioner for the difference between Ms compensation and his full wages. This excess is tó be considered as a voluntary payment on the part of the respondent.

Ill short, we are confronted with two incidents, wherein a direct trauma was inflicted upon the petitioner’s right hand and wrist when he fell, and the other, also called “giving away” and generalized weakness of the same wrist while in the performance of an act similar in every respect to the work which he had been accustomed to do, namely the carrying of several milk bottles. As to the latter occurrence, there appears to be no accompanying untoward event or unusual exertion or effort. There is no question in my mind that the petitioner did sustain a compensable accident on December 14th, 1937. The undisputed fact that he fell on that date while carrying a case of milk and injured his wrist and hand following which he was treated by the New Jersey Manufacturers’ Casualty Insurance Co. at its hospital, in Newark, New Jersey, for that injury, and that thereafter he was obliged to wear a leather strap or support for liis wrist continually', renders this conclusion inescapable. It seems fairly evident from the testimony that the petitioner’s right hand, thus rendered weakened by the accident aforesaid, continued in that state up to the time of occurrence on July 17th, 1939. This is demonstrated by the necessity of his wearing a leather strap or support on that member in order to he able to perform the work required of him by the respondent. Without taking into consideration at this point the medical evidence, there is nothing in the testimony relating to the occurrence of July 17th, 1939, yvhich is capable of being construed an accident within the meaning of the Workmen’s Compensation Act. There was no unusual incident, no fall, nor striking of the member against any object, or for that matter any untoward event which took place on the latter date. There was nothing which could reasonably justify that occurrence as the cause of tin; fracture of the scofoid bone. It was not different in any respect from his ordinary usual work which he had been accustomed to perform. He was merely in the act of picking up some milk bottles in the ordinary and accustomed manner, when his wrist and hand “gave out.”

The medical testimony leaves no doubt in my mind that the petitioner’s hand at the time of the incident of July 17th, 1939, was in a weakened condition. This was undoubtedly due to the accident of December 14th, 1937. X-rays taken subsequent to July 17th, 1939, disclose an ununited fracture of the scofoid bone of the right wrist which was medically described as an old fracture of long standing. This fact alone in my opinion is persuasive of the thought that the occurrence of July 17th, 1939, did not cause that fracture. But more compelling is the medical testimony that the activities of the petitioner on July 17th, 1939, as described by the witness, could not, by any stretch of the imagination, produce the fracture found to exist. Only a direct trauma such as a specific striking the scofoid bone or the hand being bent backwards forcefully or some other violent occurrence could cause such a fracture. The incident of July 17th, 1939, could hardly have produced such a condition. On the other hand, the testimony clearly indicates that the accident of December 14th, 1937, was the very type to produce the fracture as found in the X-ray films.

It is my opinion and I so find that the petitioner sustained an accident arising out of and in the course of his employment with the respondent on December 14th, 1937, wherein the scofoid bone of the right wrist was fractured. It further appears that either by reason of inadequate medical treatment or otherwise, the injured wrist and hand of the petitioner was thereafter left in a weakened condition and required continuous support of a leather strap or appliance in order that he be enabled to make use of that member. Evidently this type of relief was not wholly effectual as witnessed by recurring periods of stiffness and loss of grasping and retaining power during the entire period until July 17th, 1939. The incident that took place on that latter date, in my opinion, was nothing more than a recurring experience in which the symptoms of the injury again'manifested themselves. It is reasonable to assume that had the petitioner not worn the leather supporting strap, an occurrence similar to the incident of July 17th, 1939, would have taken place at some earlier date. I accordingly find and determine that the petitioner did not suffer a compensable accident within the meaning of the Workmen’s Compensation Act on July 17th, 1939.

The respondent attempted to inject in its medical testimony the suggestion that the fracture as found was due to some causes unrelated to the petitioner’s employment. Basic in our procedure under the Workmen’s Compensation Act is the principal that a respondent who attempts to ascribe the disability of an employee to some other causes than the compensable accident, has the burden of proving that contention. Atchison v. Colgate, 102 N. J. L. 425; 131 Atl. Rep. 921. Mere conjecture by a medical witness, unsupported by any proven fact does not meet and overcome that burden. The proofs of the petitioner are uncontradicted with respect to the events beginning with the accident of December 14th, 1937, and continuing thereafter to the date of the hearing. He has specifically denied any other occurrence to which the injury and disability could be attributed. The undisputed evidence shows that the petitioner continued to work with the respondent during the entire period in question, which employment required his working seven days a week and that he performed his duties in an apparently satisfactory manner. The factual testimony is barren of any suggestion or intimation that any event other than that established by the petitioner’s testimony occurred to which his disability could be ascribed. The respondent has offered no factual proof whatsoever of any extraneous occurrence in support of the medical suggestion of its doctor. 1 find that the respondent has failed to carry the burden in this regard.

Where a primary industrial accident causes a fracture which does not unite or results in poor bony union and therefore a weakened condition exists so that a secondary or subsequent event causes the disability to be prolonged, the original accident is responsible for the ultimate resultant condition. Selak v. Murray Rubber Co., 8 N. J. Mis. R. 838; 152 Atl. Rep. 78; affirmed, 108 N. J. L. 548; 159 Atl. Rep. 93. There the petitioner fractured his left forearm in a compensable accident. Approximately six months after his return to work and while on his way home, he slipped and fell in the public highway and broke his left forearm in the same place where it had been previously broken. The appellate courts affirmed the deputy commissioner’s finding that the bony union in the injured member had been incomplete and because of this weakness due to the original accident, a condition existed which caused the subsequent occurrence to prolong the disability. It was held that the proximate cause of the injury was the first accident and compensation for all the ensuing disability resulting from the second accident was properly allowed. Where a reasonably prudent person innocently aggravates the harmful effect of the original injury, the original wrongful cause continues to the end, and accomplishes the final result. Balton v. Public Service Corp., 75 N. J. L. 847; 69 Atl. Rep. 164; 18 L. R. A. (N. S.) 640; 127 Am. St. Rep. 853; Kelly v. Lembeck & Betz Eagle Brewing Co., 86 N. J. L. 471; 92 Atl. Rep. 282; Lazzio v. Prime Silk Co., 114 N. J. L. 450; 177 Atl. Rep. 251.

The authorities above cited are controlling in the case at bar. Even if we assume, for the purpose of discussion, that the incident of July 17th, 1939, was an accident, these adjudications, in my opinion, are dispositive of the issue to be determined in this cause. However, having determined that what occurred on that date was not an accident within the meaning of our statute, it becomes quite, evident that the accident of December 14th, 1937, is responsible for the petitioner’s present condition and disability and I so find. This determination requires the dismissal of the petition as to the respondent General Accident F. & L. Assurance Corp. and it is so ordered.

The respondent New Jersey Manufacturers’ Casualty Insurance Company has also interposed the defense of the statute of limitations. The undisputed testimony is that the employer paid compensation for temporary disability from October 22d, 1939, to February 26th, 1940. This clearly is a payment of compensation within two years of the date of the filing of the petition. Similarly it is a payment of compensation within two years of the date of the accident of December 14th, 1937. The requirement of the statute R. S. 34:15-51; N. J. S. A. 34:15-51, is that “every claimant for compensation * * * shall * * * file a petition * * * within two years after the date on which the accident occurred * * * or in ease a part of the compensation has been paid by the employer, then within two years after the last payment of compensation * * Not only has the petitioner received payments of compensation for temporary disability from the respondent employer within the two-year limitation period, but it also appears that the respondent employer has paid considerable moneys to doctors and hospitals for the treatment of the petitioner in an effort to obtain relief of his symptoms. These payments also were made well within the limitation period prescribed by the act and are to be considered as payments of compensation within the meaning of the section of the statute above cited. They have the effect of extending the limitation period for two years from the date of the last payment. The very recently decided case of Greif v. Betsy Ross Ice Cream Co., 19 N. J. Mis. R. 397; 20 Atl. Rep. (2d) 597, is authority for this interpretation. I therefore find and determine that the payments heretofore made by the respondent employer for temporary compensation and medical and hospital treatment were payments of compensation within the perview of the statute R. S. 34:15-51; N. J. S. A. 34:15-51, and that the petitions for compensation were filed within time. ❖ * * * * * *

It is, therefore, * * * ordered that judgment be entered in favor of the petitioner and against the respondent Henry Becker & Son, Inc., and New Jersey Manufacturers’ Casualty Insurance Co., its workmen’s compensation insurance carrier on December 14th, 1937.

****** *.

And it is further ordered that the petition No. 48817 filed against Henry Becker & Son, and the General Accident F. & L. Assurance Corp. with respect to the alleged accident of July 17th, 1939, be and the same is hereby dismissed without costs to either party as against the other.

Harry S. Medinets, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN HICKEY, PETITIONER, v. HOFFMAN BEVERAGE CO., RESPONDENT.
    Decided July 17, 1941.
    Por the petitioner, Alexander Permison (David Boslcein, of counsel).
    Por the respondent, John W. Taylor.

   *******

Two issues are presented to me for determination: Pirst did the petitioner sustain an accident arising out of and in the course of his employment with the respondent, and second, the nature and extent of temporary and permanent disability attributable to said accident. The testimony discloses that on December 17th, 1940, and for a considerable time prior thereto, petitioner had been employed in the employ of the respondent as a laborer. • At about 2:00 in the afternoon of that date, he was engaged in lifting wooden boxes filled with tin foil from the floor to the bench on which he worked, which boxes weighed between 100 and 150 pounds each. The petitioner had already raised several boxes and while in the act of lifting the box in question, he felt a sudden sharp cramp-like pain in his abdomen; he felt faint and nauseous which sensation was followed by one of weakness and dizziness. He remained at his employment with difficulty until about 3 :00 p. m. when his condition became so acute that he was compelletl to cease work and return to his home. On arriving at his home he had several fainting spells and when examined by a physician who was summoned the same day, he was found to be suffering from internal bleeding due to a ruptured duodenal ulcer. He was removed to the Irvington General Hospital, where he remained until January 6th, 1941, under the care of Dr. Susserman. Petitioner subsequently returned to work on February 28th, 1941. He still has periods of weakness, is unable to do the heavy work of his employment, is required to remain on a diet prescribed by his physician and has other symptoms and findings which cause him to deviate from the normal person.

In addition to the testimony of his treating physician, Dr. Susserman, there appeared Dr. Max Singer, a surgeon, and Dr. Kobert II. Stockfish, who testified in detail as to the petitioner’s present condition and their opinion as to the relationship between his present condition and the occurrence of December 17th, 1940. On behalf of the respondent there appeared and testified Dr. A. Yaguda, Dr. Leon Lewis and Dr. Jack Blumberg.

After carefully considering all the evidence adduced before me I have reached the conclusion and find that the petitioner, on December 17th, 1940, sustained an injury by reason of an accident which arose out of and in the course of his employment with the respondent. The testimony indicates that nine months prior to said accident, he had been examined by a physician for a possible peptic ulcer. The evidence is such that there is no doubt that the petitioner possessed a pre-existing peptic ulcer prior to the occurrence of December 17th, 1940. I find from the testimony that the strenuous effort required in the li Eting of the carton of tin foil from the floor to the work bench was a competent producing cause of the rupture of peptic ulcer. I am satisfied that the symptoms immediately followed the lifting effort, the hemorrhage and the subsequent sequela were caused by the rupture of the said ulcer. My opinion in this regard is further supported by the fact that the petitioner had been examined by the respondent’s physician only an hour or so prior to the accident, during a routine examination of the employes of the said plant, and at that time he appeared in normal good health. It was only after the lifting ■ effort in question occurred that the symptoms developed. This more than justifies on my part a rational inference of causal relationship. It is quite evident that the lifting effort and strain accompanying same resulted in an increase of abdominal pressure. The presence of the underlying peptic ulcer which was subjected .to this strain and pressure supports the conclusion that in all reasonable probability the ensuing hemorrhage and distressing symptoms were causally related to the lifting effort. Holzwarth v. Hedden & Co., 1 N. J. Mis. R. 381. In the determination of controverted questions within our act, reasonable probability and not the ultimate degree of certainty is the test. Auten v. Johnston, 115 N. J. L. 71; 178 Atl. Rep. 187; Jackson v. New York Shipbuilding Corp., 119 N. J. L. 542; 197 Atl. Rep. 284.

As to whether the respondent had notice or knowledge of the occurrence, the testimony discloses that the petitioner ceased work on the date the' accident occurred prior to his usual quitting hour, which information was conveyed to several of his fellow employes and, the respondent’s timekeeper. The evidence also indicates without contradiction that during his hospitalization, notices were posted on the employer’s bulletin board requesting blood donors for the petitioner. Trom a consideration of all of the testimony, I ahi satisfied that the petitioner has met the-burden of establishing that the respondent had notice of the occurrence in question and I so find. Holzwarth v. Hedden & Co., supra. General Cable Corp. v. Levins, 122 N. J. L. 383; 5 Atl. Rep. (2d) 731; 124 N. J. L. 223; 11 Atl. Rep. (2d) 61.

The evidence before me indicates that the petitioner, as a result of the injuries suffered in said accident and their sequela, manifests symptoms of a slightly active duodenal ulcer which requires him to continue to adhere to a diet prescribed by his physician. He also exhibits an incapacity .to do any laborious work, especially heavy lifting. His present subjective symptoms, which among other things, consist of hot flashes up his back, generalized weakness, especially after exertion and occasional discomfort after eating, are reasonably attributable to this accident. Superimposed upon these symptoms, and as the result of said accident, the petitioner is afflicted with a mild neurosis which is evidenced by generalized tremors, and a genuine apprehension that any lifting effort on his part will result in a recurrence of the hemorrhage. These all limit his working capacity and produce a disability which causes him to deviate from the normal.

In addition to hearing his testimony, I have had an opportunity to observe the petitioner during the several days that this matter was before me. He impresses me as one whose testimony is worthy of belief and credence and I so accept it.

It is, therefore ordered that judgment be and the same is hereby entered in favor of the petitioner and against the respondent. * * *

Harry S. Medinets, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD T. ACKERMAN, PETITIONER, v. H. B. WIGGINS SONS CO., RESPONDENT.
    Decided August 4, 1941.

      Dor the petitioner, David Hilowitz.

    Dor the respondent, George E. Meredith.

   *******

Owing to the petitioner’s condition, his testimony was taken at his home de bene esse in the presence of Jacob Baer, a Supreme Court Examiner of New Jersey. The testimony so adduced was transcribed and offered in evidence at the trial. Dollowing this the condition of the petitioner improved to the extent that he was permitted to come to court by his physician, and he, accordingly, testified in his own behalf at a later date.

í}{ iji # & &

The petitioner’s testimonjr indicates that on January 1st, 1940, while wheeling a wheelbarrow loaded with ashes up an incline, he felt a sharp pain in his chest. He stated that he rested for a while, then went back to the wheelbarrow, continued to wheel it outside to an ash pile where he dumped it, and then returned to the boiler room, threw several shovelsful of coal on the fire and attended to the rest of his -duties until he was relieved by the day watchman. The petitioner testified also that the acts above described were routine duties, and he had done the same thing nightly for a period of approximately four years while employed by this respondent. After being relieved by the day watchman, the petitioner testified that he walked some considerable distance to a bus stop where he had to wait a long period of time in the cold before the bus arrived. It was necessary for him to change buses in Bloomfield Center, and he had another long wait for the bus that would take him to his home. After leaving the second bus he had a walk of approximately one-eighth of a mile to his home. He testified that he just got in the doorway of his home when he collapsed and was taken upstairs to bed, and a doctor was called. The petitioner admitted in his testimony that he had said nothing to the day watchman who had relieved him regarding an accident or regarding the fact that he did not feel well, and that he did not at any time report an accident to his superiors.

Dr. I. A. Meeker, who was called by the petitioner, testified that he was called to the petitioner’s home on January 1st, 1940, and he found the patient suffering from a severe pain in the chest and observed that his breathing was difficult, his pulse rapid, and that he had treated the patient continuously for a heart condition. It was the doctor’s opinion that the petitioner was 100% totally disabled.

Although Dr. Meeker testified on direct examination as to a history which he received which indicated that the petitioner was engaged in strenuous labor on the night in question, which was harder than usual, and that the petitioner had suffered a pain while hauling out ashes, and that he had to get someone to help him on the job, he was asked on cross-examination to produce his treatment card. The significant part of the treatment card which was marked P-1 in evidence, is the history as indicated thereon, and which read as follows: “Stood in cold for 2 hrs. this A. M. Later developed severe pain over heart, in pit of stomach & around toward axilla.” This history appears on the treatment card opposite the date January 1st, 1940, and above it in similar writing, some of it written between the lines of the card, appears the following, which obviously was written at a different time: “Did not feel well during night while working. Had to sit down & get his breath. Pain began as soon as he got out in cold.”

The lay witnesses who appeared for the respondent denied any knowledge or notice of an alleged accident or injury by accident until about April loth, 1941, when a letter was received from the petitioner’s attorney which stated in effect that the petitioner had met with an accident and that compensation would be claimed.

Mr. Sheele, an official of the .company, testified that he went to the petitioner’s house shortly after his original illness, and at that time neither the petitioner nor his wife gave any indication to him that the petitioner was suffering from an injury or illness by virtue of an accident or other conditions brought about by his work. Ou the contrary, the witness stated that he was advised that the petitioner’s trouble arose because of the fact that he had an unusually long wait out in the cold for a bus, and that it took the petitioner more than two hours to get home on the morning in question.

The fellow worker, Deering, who was a day watchman, and relieved the petitioner, testified that the petitioner looked all right on the morning in question, that he looked the same as he usually did, and that the petitioner made no complaint of any character to him.

The doctors appearing for the respondent testified that the petitioner presented a typical picture of an old arteriosclerotic condition with hypertension. It was their opinion that the condition was neither caused nor aggravated by trauma, and that if trauma had had any influence on the pre-existing condition, the results would have been immediate and not delayed for a matter of minutes or even hours as here.

On this testimony the respondent by its attorney moved for a dismissal of the petition on the grounds:

1. That the petitioner did not sustain the burden of proving that he met with an accident arising out of . and in the course of his employment.

2. - That there was no proof that an accident or an injury by accident was reported to anyone in authority within ninety days as required under the provisions of R. S. 34:15-17.

3. The petitioner did not sustain the burden of proving that his condition was the result of an accident.

I have given this matter unusual thought an'd consideration because of the gravity of the situation, it being conceded even by the respondent that the petitioner in this present condition is totally and permanently disabled.

From the evidence adduced I am constrained to grant the motion.

If I were to accept the petitioner’s testimony at its face value, I would have difficulty in finding that he met with an accident arising out of and in the course of his employment. On his own testimony it appears that the petitioner on the night in question was doing his regular work in the regular way, and it appears further from the evidence that his work was lighter rather than heavier on the date of the alleged accident because of the fact that only one boiler out of three was in operation, the plant having been closed down over a long week-end holiday.

There is not the slightest suggestion in any part of his testimony that the circumstances were different than usual, that the load was heavier, that the incline was steeper, that he slipped while pushing the wheelbarrow, that the wheelbarrow ran off the plank and subjected him to a strain, or any other fact which would point to the happening of an accident.

The facts seem quite similar to those which existed in the case of Johnson v. Ulster Iron Works, 9 N. J. Mis. R. 239; 153 Atl. Rep. 95, affirmed by the Court of Errors and Appeals, 109 N. J. L. 267; 160 Atl. Rep. 635. The court in that case, commenting upon a similar state of facts, stated in part at p. 239 of 9 N. J. Mis. R. and at p. 95 of 153 Atl. Rep.:

“There was nothing, unusual in the same or in the manner of the performance of his work. * * * There is no testimony that deceased was doing anything different from that which he was called upon to do, and the usual appliances appear to have been in order. There is nothing to suggest an accident save Johnson’s death.”

Aside from this, I find it helpful in determining where the truth lies in a disputed question of fact to consider the surrounding circumstances and the atmosphere of the case. As I indicated in the case of Clarke v. Ward Baking Co., 19 N. J. Mis. R. 268, it is only human nature for a person who has been subjected to an accident to make some complaint about it and to do so promptly following the happening. Where the results were so drastic as here, as to render a man totally disabled, it would seem that the complaint would come even sooner. As the testimony indicates, the first complaint or report of any accident or injury by accident was not made to the employer until some 3% months after the alleged occurrence, when the letter was addressed to the respondent by the petitioner’s present attorney. Until that time no demand was made for compensation payments, no request was made to supply medical services, and the petitioner and his family and his doctor seemed to treat the matter as a routine illness unassociated with the petitioner’s employment, as indeed I believe it was.

I have also in mind the fact that the petitioner’s testimony, even if I conclude that it spelled out an accident, is entirely uncorroborated. Some attempt at corroboration was made by asking the family physician for the history which he obtained. I am satisfied that the only history that the doctor secured from the petitioner during the course of treatment was that stated opposite the date, January 1st, on the exhibit marked P-1 in evidence, namely: “Stood in cold for 2 hrs. this A. M. Later developed severe pain over heart, in pit of stomach & around toward axilla.” This seems reasonable and probable, not only from the physical make-up of the card, which was marked in evidence, but I also have in mind the doctor’s attitude and demeanor on the stand, his attitude of belligerence, and his reluctance, which amounted almost to a refusal, to surrender the card when requested to do so. This thought is further supported by the fact that at no time during a period of well over a year did the attending physician make any report, verbal or otherwise, to the employer, nor did he call upon the employer for the payment of his bill.

Even if I were to resolve all doubts in favor of the petitioner, although there is no doubt in my mind as to his failure to prove the happening of an accident, I cannot conclude from the greater weight and quality of the evidence that the petitioner’s condition is the result of trauma.' It is quite evident from the testimony that the petitioner is and has been' suffering for a number of years from a condition of hypertensive arteriosclerosis. Because of the condition, and because of his age, he was due to collapse at almost any time, .with or without the intervention of trauma. I am satisfied from the more credible testimony that the man’s collapse took place not during working hours, but while standing out on the public highway waiting for a bus, and that this collapse was not due to any particular exertion, but to the natural end result of the disease from which he suffered.

Ill view of the foregoing, it becomes unnecessary for me to pass on the question as to whether or not an accident or an injury by accident was reported to the respondent within the statutory period.

#*$**$$

It is, accordingly, * * * ordered that the petition be and the same is hereby dismissed, without cost to either party.

Harry S. Medinets, Deputy Commissioner.


author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HARRY EISEN, PETITIONER, v. JACQUARD FABRICS, INC., RESPONDENT.
    Decided August 12, 1941.
    For the petitioner, Nathan Babinowitz.

    For the respondent, Landau & Mehler.

   *******

The sole question in controversy is whether the coronary thrombosis or occlusion — admittedly suffered by the petitioner on April 24th, 1939, was the result of an accident arising out of and in the course of his employment with the respondent, or was due to natural causes independent of his said employment.

From the evidence it appears that the petitioner had been employed as a weaver by the respondent for one and a half years before the day of the alleged injury, which, he testified, occurred between seven and eight o’clock on the morning of April 24th, 1939, when he collapsed as he was standing beside his machine or loom. According to the petitioner’s uncontradicted testimony, he arrived at the respondent’s plant at seven o’clock on the above morning in his usual state of good health, and, because of the absence of one of the workers due to illness, Eisen- was instructed by Max E. Bornstein, a superior, to replenish the quill pans with water. This task, which was not part of the petitioner’s regular duties, required the filling of a large galvanized iron pail with water from a sink located at the extreme end of the shop room, and then carrying the same to the various qnill pans throughout the room and replenishing them by pouring from the pail. Upon lifting the sixth or the seventh loaded pail from the sink and carrying it to the pans, petitioner testified that he experienced a peculiar feeling with a choking sensation in his throat; that he continued, nevertheless, to fill the last three quill pans and then returned to his regular duties as weaver, standing alongside his two looms; that the aforementioned peculiar feeling persisted; and that about one-half hour later he fell across one of his machines in a complete state of collapse, with extreme pain radiating over his chest and under his armpits, perspiring profusely and unable to talk. He was thereupon assisted to the plant office by several co-workers where attempts were made to revive him; and a short time thereafter he was taken by automobile to the office of Dr. David Bornstein. Upon examination the doctor was of the impression that Eisen was suffering from either stenocardia (constricture of the heart) or coronary thrombosis (closure of the coronary artery or one of its branches), based upon the following objective symptoms: pale in appearance; cold and clammy skin; unable to talk because of pain over the sternum and both arms and because of shock and nervousness; blood pressure of 110/78; inaudible heart sounds; and a distant pulse which could not be felt. Because of his seemingly grave condition, the petitioner was permitted to recline and rest on the examining table for a half hour or so, during which period heart and circulation stimulants were administered, following which he was driven to his home by a co-worker. Upon his arrival he repaired to bed where he remained for seven weeks under the care of Dr. Abraham 11. Apter — receiving conservative treatment for an ailment diagnosed by the doctor as coronary thrombosis. Later on when the petitioner became ambulatory he received several months’ treatment at the doctor’s office. He was first able to resume light work in December, 1939, when he entered the employ of the Platt Silk Co., operating but a single loom. At the present time he suffers from general weakness, shortness of breath, easily fatigued on walking or standing for any long period of time, a choking sensation in his throat and a feeling of fullness in and about the chest.

A review of the voluminous medical testimony of the various physicians appearing for the respective parties discloses a definite contrariety of opinion both as to diagnosis as well as to causal relation. The petitioner’s medical experts, viz., Drs. David Bornstein, Abraham H. Apter, Adolph Kroll and J. Allen Yager, the first two being treating physicians and the latter two being cardiologists, expressed the opinion that the petitioner suffered an attack of coronary thrombosis on the day in question and that there was a definite causal relation between the unusual lifting effort of the several pails of water and the resultant coronary thrombosis. They further expressed the opinion that the petitioner at the present time is suffering from the residual effects of this condition due to infarction and cardiac damage. On the other hand the respondent’s experts, namely, Drs. R. Burton Opitz, Arthur M. Master and Raphael Oilardy, internists and cardiologists, expressed the opposite view to the effect that the petitioner neither suffers nor suffered from a coronary thrombosis as the result of the lifting event on April 24th, 1939. They emphatically denied that coronary thrombosis is ever caused by trauma or precipitated by an act of physical exertion, insisting that such condition is solely the end result of the disease or arteriosclerosis in the coronary vessels.

In a situation such as this where the opinions of the various medical experts of the respective parties are so hopelessly conflicting and irreconcilable, it becomes necessary for me, in order to arrive at a decision in this case, to accept the view which seems to be the more credible, logical and weighty. In my considered judgment, I feel that the greater weight of medical testimony with respect to both diagnosis and causal relation, preponderates in favor of the petitioner.

Furthermore, the lay testimony establishes the fact of petitioner’s physical breakdown immediately after the accident. Prior thereto, according to his testimony and that of several co-workers he was a steady worker, in good health and who very rarely, if ever, lost any time from work by reason of illness; but that following the accident he has suffered with a gradual decline in health, short of breath on exertion, easily fatigued and with a fullness in and about his chest.

That physical overexertion or effort may be a competent cause in precipitating the development of coronary thrombosis 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 Wagner v. Lewis, 13 N. J. Mis. R. 807; 181 Atl. Rep. 394; Hentz v. Janssen Dairy Co., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409; 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. 417; Farrell v. M. C. Bagatz & Sons Co. (Minn.), 250 N. W. Rep. 454; Stier v. City of Derby (Conn.), 174 Atl. Rep. 332; Bacher v. Herschkowitz Bros. (N. Y.), 282 N. Y. Supp. 172.

A case which seems to be on all fours with the present one is that of Juhl v. Hussmann-Ligonier Co. et al., recently decided by the Court of Appeals of Missouri (January 4th, 1941), and not yet reported. Because oí the similar situation therein presented I deem it essential to briefly state the facts and the ruling of the court:

“Juhl had been in the employ of defendant for about two years. He had been laid off for a while in the fall. He returned to work a day or two before the accident, which occurred on December 22d, 1937. He was given a thorough medical examination before returning to work. The examination showed that his condition was satisfactory. Juhl testified : 'My first job in the morning was to get an empty five-gallon paint bucket and fill it with water at the faucet sixty feet away. On this particular morning * * * I filled the bucket full, and as I picked up the bucket of water it seemed like it strained me. I carried it about forty feet and as I turned into the glue room it was like a knife stuck me in the pit of my stomach. I then carried the bucket twenty feet and by that time the pain had me doubled up. * * * I am sixty-seven years old. * * *’ The record of the hospital, to which the employee was taken, shows that the diagnosis was coronary occlusion. Dr. Shrader who made an examination of the employee on March 1st, 1939, testified that in his opinion the lifting of the bucket of water and carrying it was a precipitating factor of the coronary occlusion. He further testified: ‘Blood does not clot in a normal blood vessel. Some injury or some disease is necessary to cause blood to start to clot. In arterial diseases of old age we often have nutritional disturbances in the walls of the blood vessels * * * increased blood flow * * * might dislodge a soft poorly attached mass on the side of the wall of the artery. In my opinion that is what happened in this case. The lifting of the bucket of water would increase the flow of blood more than walking. * * * In my opinion the strain of lifting a bucket of water loosened the blood clot and accounts for the occlusion. * * *’ The Commission denied compensation, and the court below affirmed the Commission’s order. Plaintiff has appealed.

“The Compensation law fixes liability for injury and death by accident, not for injury or death resulting from accidental means. If in this case the employee had broken his arm in lifting the bucket of water, all would agree that there was an injury by accident. What is the difference between breaking the arm and breaking a blood vessel? Hone in principle, of course. The difference is not one of law, but of the proof as to what happened. In the present case, evidence of the most positive and cogent character shows that the employee’s disability resulted from accident and not from natural causes. Judgment reversed and cause remanded to the court below with directions to reverse the order of the Commission and remand the cause to the Commission.

“On motion for a rehearing. Anxiety is exhibited by defendants, on motion for a rehearing, respecting what they think will be the direful consequences of this court’s opinion if it is permitted to stand. But decisions in other jurisdictions, as well as in this state, are in accord with this court’s view of the law. Motion for a rehearing overruled. Juhl v. Hussmann-Ligonier Co. et al., St. Louis Court of Appeals Mo., decided December 19th, 1940. Motion for rehearing overruled January 4th, 1941.”

In the present ease the burden of proof which rests upon the petitioner to establish his right to compensation has been met. Upon carefully considering the entire evidence, I find and determine as follows:

% Hi Hí * H* sfc #

That on April 24th, 1939, the petitioner suffered an injury as a result of an accident arising out of and in the course of his employment, involving the coronary vessels of his heart.

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

$ $ $ $ &

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CARMELLA D’AMORE, PETITIONER, v. CITY OF NEWARK, A CORPORATION, RESPONDENT.
    Decided August 7, 1941.
    For the petitioner, Perry JE. Belfatto (Harry Gohn, of pounsel).
    For the respondent, Raymond Schroeder (Thomas Par-sonnet., of counsel).
   An application has been made for an order allowing a credit to the respondent, the City of Newark, in reduction of its liability for compensation under and by virtue of the. judgment and award heretofore entered in the above entitled cause on the 3d day of August, 1938, in favor of Carmella D’Amore and four of her children (all of whom were determined to be total dependents of Fillipo D’Amore, deceased, within the meaning of the Workmen’s Compensation Act) by reason of a recovery obtained by the said Carmella D’Amore as general administratrix and administratrix ad prosequendum of the estate of Fillipo D’Amore, deceased, from the United Color & Pigment Co. and others, the third party tort feasors whose negligence is alleged to have been responsible for the death of the decedent.

While the deceased employee, Fillipo D’Amore, left him surviving his widow, Carmella D’Amore, the petitioner, and ten children, who were born of the marriage, the Workmen’s Compensation Bureau in the aforesaid judgment and award determined that only the widow and four of said surviving children, namely Natala D’Amore, James D’Amore and Antonio D’Amore, sons, and Margherita D’Amore, daughter, were total dependents within the meaning of the Workmen’s Compensation Act. Accordingly compensation to said total dependents was ordered to be paid.

The gross third party recovery of $6,000 obtained in this case is required, in accordance with the statute in such case made and provided, N. J. S. A. 2:47-4, to be distributed (after deduction of legal fees and expenses) to the said widow, and the ten surviving children. Therefore only that portion of the distributive share to which the aforesaid five total dependents are entitled, as limited by the amount of the compensation award, can be used as a base for the computation of the credit sought. The respondent can claim no credit for that portion of the third party recovery to which persons, other than the compensation dependents, are entitled. Nor can it claim credit for any part of the third party recovery obtained by the dependents which exceeds the amount of the compensation award to each of the said dependents.

The statute N. J. S. A. 34:15-13 (h) provides: “Distribution [of compensation] shall be made among the dependents, if more than one, according to order of the Workmen’s Compensation Bureau, which shall, when applied to for that purpose determine, upon the facts being presented to it, the proportion to be paid to or on behalf of each dependent according to the relative dependency. Payment on behalf of infants shall be made to the surviving parent, if any, or to the statutory or testamentary guardian.” The record in this case fails to disclose any application to the bureau for an order determining the proportion of compensation to be paid to or on behalf of each dependent.

Since under the provisions of the act N. J. S. A. 34:15-13 (g) dependency shall be conclusively presumed as to the decedent’s widow and natural children under sixteen years of age who were actually part of the decedent’s household at the time of his death, and since no application for an order of distribution of said compensation payments was made, it must be assumed that the several dependents were entitled to same, share and share alike for the respective periods provided in the determination and award. A reading of the applicable portion of the statute lends itself to no other conclusion, inasmuch as there is no specific statutory authority to pay one dependent more than the others unless it. is specifically so determined by the bureau, upon a proper application as aforesaid.

Thus the total amount of compensation payable under the award, until the dependent hTatale D’Amore attained the age of sixteen on February 26th, 1939, was the sum of $766.85. One-fifth of this amount or $153.37 represents the share to which said dependent is entitled. Consequently only so much of the distributive share of the third party recovery due to Natale D’Amore as equals the compensation due him can bo employed in arriving at the base for the computation of the credit sought. Employing the same method of computation, it appears that the other dependent .children, James D’Amore, Antonio D’Amore and Margherita D’Amore are each entitled to receive compensation in excess of the distributive share of $400 due each of them from the third party recovery. Therefore, their full distributive share is to be employed in computing the base for the credit. The amount of the dependency award to which the widow, Carmella D’Amore, would be entitled, computed on the basis above indicated, would be $1,476,67, and that sum is to be likewise included. Consequently the total amount of the .third party recovery obtained by these compensation dependents is the sum of $2,830.04.

In accordance with the statute, N. J. S. A. 34:15-40, as interpreted by the Court of Errors and Appeals in Savitt v. L. & F. Construction Co., 124 N. J. L. 173; 10 Atl. Rep. (2d) 728, the credit to which the respondent herein is entitled by reason of the third party recovery, on account of its compensation liability under the aforesaid award in the total amount of $4,625.14 (after making allowance for $100 expenses of suit as agreed upon by the parties hereto) is the sum of $1,188.31. In addition the respondent has heretofore paid to June 27th, 1941, on account of said award, the sum of $2,607.78. Thus it is to be credited in the total sum of $3,796.09, leaving a balance due as of June 27th, 1941, of $829.05, which the respondent is to pay in accordance with the terms and provisions of the Workmen’s Compensation Act.

It is, therefore, * * * ordered that-the compensation liability of the respondent, City of Newark, a corporation, as determined by the judgment and award of the Workmen’s Compensation Bureau dated August 3d, 1939, in the above entitled cause, be and the same is hereby credited with the sum of $1,188.31 the net statutory third party recovery of the petitioner and the other compensation dependents herein; and

It is further ordered and determined that after applying said credit and the payments heretofore made by the respondent to June 27th, 1941, in the amount of $2,607.78, there is still due from the respondent to the petitioner under the aforesaid award and judgment, the sum of $829.05, which the respondent is directed to pay in weekly installments of $12.80 each, beginning with June 27th, 1941, and continuing until the dependent Margherita D’Amore attains the age of sixteen years on June 2d, 1944, and thereafter at the rate of $11.20 per week until the said balance is fully paid.

Harry S. Medinets, Deputy Commissioner.


author: Jayne, C. C. J.

text:
    BETTY HEWITT, A MINOR, BY HER NEXT FRIEND, MARY HEWITT, PLAINTIFF, v. ATLANTIC CITY AND SHORE RAILROAD COMPANY, DEFENDANT.
    Decided August 11, 1941.
    For the plaintiff, David 8. Harrison and Gaslcill & Rosenberg (John B. Baratía, of counsel).
    For the defendant, George A. Bourgeois.

   Jayne, C. C. J.

At midnight on July 22d, 1935, at Virginia avenue and the Boardwalk at Atlantic City, the plaintiff became a passenger in an electric street car operated by the defendant. Her intended destination was Pleasantville. When the car in the course of the journey approached New York avenue a glow of artificial light suddenly and momentarily radiated brightly throughout the car. It seemed to originate in the rear vestibule of the car. Smoke immediately entered the car accompanied by an odor of burning rubber. The passengers, including 'the plaintiff, became instantly frightened and in an impulsive effort to escape from an apprehended danger, they or many of them hastened toward the front door of the car. In this catastrophe, the plaintiff suffered bodily injury, hence the prosecution of this action.

The trial resulted in a verdict in favor of the plaintiff with an award of $4,700 damages. The defendant has a rule to show cause why this verdict should not be annulled and a new trial allowed.

It is asserted that the verdict confirming the alleged liability of the defendant is discordant with the clear weight of the evidence. The plaintiff introduced proof establishing the facts to which reference has already been made, supplemented by the opinion of an electrician that the event had the normal characteristics of an arc of electricity due to faulty or defective insulation of energized wires at the rear of the car. Prophylactic obligations can not be lightly regarded by common carriers of passengers. Nevertheless no affirmative evidence was produced by the defendant to explain the cause and nature of this misadventure or to prove that any care whatever had been exercised to prevent its occurrence.

The settled rule is that when a passenger shows that he was injured through some defect in the appliances of the carrier, or through some act or omission of the carrier’s servant which might have been prevented by due care, then the jury have the right to infer negligence, unless the carrier proves that due care was exercised. Whalen v. Consolidated Traction Co., 61 N. J. L. 606; 40 Atl. Rep. 645; Dusenbury v. North Hudson County Railway Co., 66 N. J. L. 44; 48 Atl. Rep. 520; Mettler v. Delaware, Lackawanna and Western Railroad Co., 77 N. J. L. 97; 71 Atl. Rep. 111; Hughes v. Atlantic City, &c., Railroad Co., 85 N. J. L. 212; 89 Atl. Rep. 769; Russell v. Public Service Railway Co., 104 N. J. L. 34; 139 Atl. Rep. 322; Barney v. Hudson and Manhattan Railroad Co., 105 N. J. L. 274; 145 Atl. Rep. 5; Rogers v. New York Central Railroad Co., 106 N. J. L. 394; 150 Atl. Rep. 357. The application of this rule to the state of the evidence in the present case justifies the inference of negligence which was evidently drawn by the jury. At the close of the trial there remained a justifiable inference of negligence with no evidence whatever to overthrow it.

An additional reason proposed by the defendant is that the award of damages is exorbitant. This ground primarily implicates the divergent and contradictory evidence relating to . the pathological condition with which the plaintiff is afflicted and its cause.

It may be reasonably assumed that the jury concluded from the evidence that "in the consternation prevailing among the passengers upon the occurrence of the mishap, the plaintiff was propelled forward and her lower abdomen was forcibly pressed against the upper corner of a seat of the car. The plaintiff, then a girl of thirteen years of age, was menstruating at the time of this accident, having had her first menstrual period when she was eleven. Prior to the accident her menstrual periods had been regular and otherwise natural. Ever since the accident such periods have been irregular. Menstruation has been more profuse, exceedingly painful and accompanied by chills. Painful menstruation is known as dysmenorrhea.

The plaintiff consulted several physicians whose treatment did not afford her any appreciable relief and in May, 1940, she sought the services of Dr. William J. Carrington under whose observation and medical care she has remained during the entire year immediately preceding the trial of this case.

The jury, however, did encounter a most perplexing question concerning which the expert witnesses were not in accord. Dr. Carrington testified that after a very deliberate study of the symptomatology and as a result of physical examinations and approved scientific tests, he confidently reached the conclusion that the plaintiff is suffering from endometriosis caused by the accident.

Endometriosis is a condition characterized by the presence, outside the endometrial cavity, of endometrial tissue which is indistinguishable both pathologically and physiologically from normal endometrium. The endometrium from the womb becomes implanted in abnormal situations in the pelvic cavity. It seems to be acknowledged that the significant symptoms of endometriosis are pelvic pains associated with the menstrual period, severe acquired dysmenorrhea, nodules in the cul-desac, diminished mobility of the uterus, retroversion and the incidence of associated pelvic lesions.

Dr. Carrington disclosed -with particularity the various recognized diagnostic measures he pursued to ascertain the true cause oí the persistent dysmenorrhea. Bemedies administered for dysmenorrhea were ineffectual. He then suspected the cause to be endometriosis. He testified that by palpation by rectum, he discovered a first degree retroversion of the uterus and that the ligaments holding the back portion of the uterus were nodular. His testimony was made more intelligible to the jury by his use of illustrative drawings. Moreover Dr. Carrington is a very highly regarded citizen; a perspicacious and learned physician who has practiced his profession for more than thirty years and in recent years, he has specialized in gynecology. His opinion undoubtedly inspired the respect of the jury.

In disaccord with the diagnosis of Dr. Carrington were Dr. Clifford B. Lull, a gynecologist, Dr. Charles T. Bussell, assistant surgeon of the Department of Public Safety, both of Philadelphia, Dr. David B. Allman, a prominent surgeon and Dr. Bernard Crane, an obstetrician, the latter two of Atlantic City. These capable and experienced physicians had not attended the plaintiff professionally and were called by the defendant as expert witnesses. Dr. Lull and Dr. All-man had examined the plaintiff on one occasion and Dr. Crane on two occasions. Dr. Bufesell had not examined her. Those who had examined the plaintiff declared that they had not discovered by palpation the existence of the nodules to which Dr. Carrington referred. They stated that upon pressure there was evidence of tenderness in the region of the appendix and that in their opinion the dysmenorrhea was caused by a diseased appendix. They were not asked, however, to elucidate the causative relationship between a diseased appendix and a consequential dysmenorrhea. Informed of the diagnosis favored by the defendant’s experts, Dr. Carrington returned to testify in rebuttal that to definitely ascertain the condition of the plaintiff’s appendix he had with her consent subjected her to every test of authoritative recognition known to him, such as the Bastedo, the Chase, the Shilling tests, blood sedimentation count, a differential blood count, an X-ray of the appendix, all of which were negative. Moreover the doctors called by the defendant informed the jury that the vast majority of cases of endometriosis occur in the latter part of the third or early part of the fourth decades of life and that the pertinent authorities fail to reveal the report of a single case of endometriosis occasioned by trauma. In turn, it is claimed that the plaintiff probably would not be afflicted with endometriosis at her age from the usual causes, hence trauma was in the present case the competent and producing cause. Additionally it was pointed out that the uterus suspended in the pelvic cavity occupies a fortunate location against external force. Accordingfy, whether the situation of the plaintiff in the accident proximately originated the endometriosis became a controversial question for the solution of the jury.

On that branch of the case, Dr. Carrington emphasized the fact-that the plaintiff was menstruating at the time of the mishap and he proposed that an increased pressure on the uterus in the pelvis had forcibly expelled some endometrium from the endometrial channel upward through the Fallopian tube into the pelvic cavity. Principles of the Science of Physics were then invoked to enjoin the acceptance of such a supposition.- It was asserted that any such increased pressure would be equally distributed over the surfaces of every organ or part suspended in the pelvic cavity and that assuredly the endometrium residing in the uterus would not be ejected upward rather than downward.

How, this abridged recitation of the evidence serves to divulge the character and complexity of 'the problems submitted to the jury for determination. The subjects were beyond the field of common knowledge and experience. It will perhaps be acknowledged that endometriosis is to many physicians and surgeons an unfamiliar lesion and although it is now generally agreed that the transplants come originally from the endometrial cavity, yet the mode of transmission in all cases is far from established. Perhaps demonstrable evidence of endometriosis is only attainable by some clinical surgical exploration.

Therefore in determining these issues, the jurors were obliged to harvest their conclusions from the testimony of the export witnesses. It was, of course, appropriately the task of the jury to select from all of such testimony that which they deemed to be rational, plausible in view of the surrounding factual circumstances and worthy of their faith and belief. The power to nullify the verdict of a jury is essentially remedial in character. Its exercise is not to supplant the function of the jury. Bowen v. Healy’s, Inc., 16 N. J. Mis. R. 113, 115. In the final analysis the power invoked should be exercised reasonably and cautiously to promote the ends of justice in the individual case.

In the present case, the jury may have determined the facts to be in conformity with the opinion of Dr. Carrington. The circumstances that he is an experienced gynecologist who was afforded an opportunity to make an elaborate study of the condition of the plaintiff may have been an influential factor in elevating the weight of his opinion. The more comprehensive and inclusory tests of Dr. Carrington to ascertain the state of the plaintiff’s appendix may have added preponderant weight to his conclusion in that particular. Ho exhibited the links in his chain of reasoning. It can not be inferred that it required the force of sympathy, passion or prejudice to induce the jury to adopt his conclusions.

The verdict may be otherwise reconciled with the existing proof. Juries sometimes seem to discard fine spun technical and scientific hypotheses and attributions that are too lofty for their reach and by the application of common sense to the factual circumstances within the range of their understanding, arrive at a verdict. The jury may have concluded that through the negligence of the defendant this plaintiff truly sustained some bodily injury, whatever it may be, which, ever since the occurrence of the accident, has caused her to suffer severe pain at each menstrual period and that such suffering will, in view of the time that has already elapsed, continue for some indefinite span in the future. Expenses, both past and prospective, were undoubtedly considered. The jury resolved to award her $4,700.

If the plaintiff is in fact seized with endometriosis as a proximate result of this accident, then the award is exceedingly moderate. The plaintiff is a virgin, now only nineteen years of age, and the most assured relief of the symptoms of endometriosis is operative castration. More conservative treatment has been largely speculative and of uncertain relief. In any event the' award- is not so manifestly excessive as to justify the inference that the jury in deciding the sharply controversial issues of this case were actuated by sympathy, passion or prejudice. -

The rule is discharged.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    PREPARATORY TRAINING INSTITUTE, PETITIONER, v. CITY OF TRENTON, RESPONDENT.
    Decided September 9, 1941.
    Tor the petitioner, Joseph V. Zaccone.

    Tor the respondent, Louis Josephson.

   Quinn, President.

The City of Trenton assessed for local taxation for the year 1940 certain real property, possession of which has been exercised by petitioner under circumstances hereinafter related. The Mercer County Board of Taxation allowed a reduction in the assessed valuation of the property, but petitioner here seeks a cancellation of the assessment upon the ground that the property was owned by the state upon the assessing date, and is therefore exempt from local taxation, under R. S. 54:4-3.3; N. J. S. A. 54:4-3.3.

The property was purchased by petitioner from the Board of Education of the State of Eew Jersey on May 28th, 1937, under an executory contract of sale, the terms of which provided for a purchase price of $6,500, payable $500 down, and $6,000 on or prior to December 10th, 1937, at which it was to receive a deed. Immediate right of possession was granted the purchaser. On December 10th, 1937, petitioner was able to pay only $1,000, and an agreement was entered into extending the time for payment of the balance until December 8th, 1939. Nothing appears as to -how much, if anything, additional, was ever paid thereafter, but it is shown that petitioner has been in continuous default under its contract, and that it has never had any legal or equitable right to a conveyance of the legal title to the property, although it has been in continuous possession and use thereof for its private purposes. Distinguish the situation of the purchasers of government property in New Brunswick v. United States (1928), 276 U. S. 547, and in Hance v. New Brunswick (Supreme Court, 1929), 7 N. J. Mis. R. 610; 146 Atl. Rep. 763.

It does not follow from the foregoing, however, that petitioner is entitled to maintain a petition of appeal before this board for exemption of the property from taxation. If, under the facts, the property should be adjudged exempt as being owned by the state, the privilege of exemption is personal to the holder of the right of exemption, and cannot be transferred, Mausoleum Builders v. State Board (Court of Errors and Appeals, 1917), 90 N. J. L. 163, 164; 100 Atl. Rep. 236, and, under a prior ruling of this board in a similar situation, a petition of appeal praying exemption will be entertained only upon application of the party entitled thereto. In this case, so far as it exists, the right is vested in the Board of Education of the State of New Jersey. James Hance v. City of New Brunswick, New Jersey Tax Reports 1912-1934, 441 (at p. 444). That body has not chosen to assert a right to exemption for the property.

For the reason stated, the appeal will be dismissed and the judgment of the Mercer County Board of Taxation affirmed.


text:
    RECONSTRUCTION FINANCE CORPORATION, PLAINTIFF, v. ALFRED F. GOHL, FLORENCE JAMES, DEFENDANTS.
    Decided September 8, 1941.
    For the plaintiff, Thomas H. Munyan (Daniel Bell, Jr.)

    For the defendant Gohl, Edward I. Feinberg.

   Jayne, C. C. J.

The trial of this action resulted in the direction of a verdict in favor of the plaintiff against the defendant Alfred F. Gohl. An exception to the ruling was allowed hut the attorney of the defendant has desired a rule to show cause pursuant to which he assigns the substance of the exception as a reason for the allowance of a new trial.

A rapid summary of the significant facts will exhibit the subject debated. Antecedently, a promissory note made by Florence James and her father Albert Gohl and payable to Pauline Y. Gohl, the mother of Florence, had been discounted for value by the Chelsea-Second ’.National Bank and Trust Company of Atlantic City. The bank pledged this note among others with the Reconstruction Finance Corporation as collateral security for a loan made by the corporation to the bank. Before ihe maturity of the note, the co-maker Albert Gold died. The note was returned to the bank at maturity for presentation, collection or renewal and was protested for non-payment. Thereafter, on January 16th, 1933, a promissory note of like amount was made by Florence James and her brother Albert F. Gohl, the defendant, and delivered to and accepted by the bank. This is the note in suit. On January 27th, 1933, the bank was declared insolvent and a receiver was appointed to assume charge of its assets. The note became due on February 16th, 1933. Incidentally, it may be explanatory to disclose that this action to recover the principal and interest due on the note was instituted by Charles A. Faireloth, the receiver of the bank. The cause of action was thereafter assigned to the present plaintiff and an appropriate rule substituting the assignee as the party plaintiff was entered.

At the trial the essential proof of the execution, delivery and non-payment of the note was introduced by the plaintiff.

The defendant ventured to prove that he received no consideration for his execution of the note and signed the instrument solely to 'accommodate the bank. The testimony, however, presented by the defendant tended only to reveal that after the maturity of the former note, Mrs. James sought to éffectuate some arrangement with the bank to continue the obligation. Ultimately she was informed that the bank would accept a new note if her brother, the present defendant, would sign the note as co-maker with her. The defendant visited the bank at the request of his sister, Mrs. James, and it is said that he was there informed by the note teller and subsequently by the cashier that his signature was desired merely as a matter of form and that he would never be held responsible for the payment of the note. He subscribed to the instrument, he says, with that understanding. It must, of course, be acknowledged that as between the immediate parties and a party other than a holder in due course, the delivery of the note may be shown to have been conditional or fox a special purpose only and not for the purpose of transferring the property in the instrument. N. J. S. A. 7:2-16. Here, however, there was actual and intentional delivery of the note but allegedly no obligation, conditional or otherwise, to pay it. The agreement attempted to be shown here is not a condition attached to the delivery of the note. The statute is therefore inapplicable. In consideration of the execution and delivery of the note by the defendant, the bank refrained from demanding and enforcing the payment of the former note. The sister and mother of the defendant were thereby accommodated. The accommodated party in a legal sense is the party to whom the credit of the accommodating party is loaned not a third person who may receive an advantage by the loan of the credit. The oral agreement, if made, was rather an engagement in which the defendant knowingly embarked upon an excursion of deception. lie inserted among the ostensible assets of the bank an obligation in writing which, by reason of a contemporaneous oral agreement, he never expected to fulfill.

In Mount Vernon Trust Co. v. Bergoff, 5 N. E. Rep. (2d) 196, Judge Lehman, speaking for the Court of Appeals of New York, characterized such an engagement in this language: “A fictitious note delivered to a bank, intended to become part of its apparent assets, though not intended to be enforceable, is in itself a continuing falsehood calculated to deceive the public, and any person delivering such a note becomes a party to the falsehood.”

“In such case it is immaterial whether the note was based on good consideration or not. The stability of banks is a matter of such public concern that the state or federal government regulates the affairs of each bank and periodically examines its apparent condition. The state cannot sanction any device intended to give a false appearance to a transaction or increase the apparent stability of a bank. The defendant may not have intended to deceive any person, but, when she executed and delivered to the plaintiff bank an instrument in the form of a note, she was chargeable with knowledge that, for the accommodation of the bank, she was aiding the bank to conceal the actual transaction. Public policy requires that a person who, for the accommodation of the bank, executes an instrument which is in form a binding obligation, should be estopped from thereafter asserting that simultaneously the parties agreed that the instrument should not be enforced. Cf. Iglehart v. Todd, 203 Ind. 427; 178 N. E. Rep. 685; Denny v. Fishter, 238 Ky. 137; 36 S. W. Rep. (2d) 864; Bangor Trust Co. v. Christine, 297 Pa. 64; 146 Atl. Rep. 545; Cedar State Bank v. Olson, 116 Kan. 320; 226 Pac. Rep. 995; Mars National Bank v. Hughes, 256 Pa. 75; 100 Atl. Rep. 542.”

Moreover, the note teller and cashier in attempting to make such an agreement for the bank would be trespassing beyond the scope of their ordinary authority. It did not appear that the board of directors authorized or ratified or indeed had any knowledge of any such extraordinary bargain. First National Bank of Greencastle v. Baer, 277 Pa. 184; 120 Atl. Rep. 815. The borrowing or loaning of mere naked and ineffectual signatures on negotiable instruments would be a traffic inimical 'to sound public policy. The insolvency of the bank intervened.

The legal issues at the close of the trial were (1) whether parol evidence was admissible to prove such an oral contemporaneous agreement and (3) whether the defendant, assuming the circumstances to have existed as he related them, could interpose such a defense in an action prosecuted by a receiver for the benefit of the creditors of the insolvent bank.

One ground for the direction of the verdict was that the oral agreement, if made, was in the circumstances an illegal engagement and to permit it to be utilized by the defendant in the present action would be contrary to sound public policy. If it was an illegal compact, how, then, does the bank or its assignee, escape the principle — ex dolo malo non oritur actio. The answer is that the cause of action of the plaintiff does not arise ex turpi causa. The bank does not require the aid of the deceptive transaction to prove its alleged cause of action and the integrity of the established written contract (the note) could not be affected by what, if true, was an unauthorized collateral undertaking to practice deception. The defendant was the party who sought the benefit of the oral understanding. In view of all of the circumstances to which reference has been made he was estopped from invoking a failure of consideration as a defense.

A survey of the pertinent authorities sustains the propriety of the directed verdict. The doctrine applied was recognized by our Supreme Court in Beers v. Broad, &c., National Bank of Newark, 102 N. J. L. 5; 122 Atl. Rep. 105, and approved, on appeal, by the Court of Errors and Appeals, 107 N. J. L. 372: 151 Atl. Rep. 905. In Schmid v. Haines, 115 N. J. L. (at p. 274); 179 Atl. Rep. 801, the doctrine is discussed with a citation of authorities. Other cases illustrative of this principle of estoppel may be found cited in 64 A. L. R. 595; 95 Id. 543.

True, the testimony concerning the making of the oral agreement was in a contradictory state but the application of the principle of estoppel left no essential and indispensable factual question to be submitted to the jury.

The American editors in Notes to Duchess of Kingston’s Case, 3 Smith’s Lead. Cas. 729, stated: “A person who is so ill-advised as to execute a written contract in reliance upon an assurance that it shall not be literally enforced, must submit to the loss if he is deceived, and cannot ask that a principle of great moment to the community shall be made to yield for the sake of relieving him from the consequences of his indiscretion.” The so-called parol evidence rule applies within its qualified sphere with like rigor to negotiable instruments. Chaddock v. Vanness, 35 N. J. L. 517. It is, of course, a well settled rule that as between parties to a note the true consideration, the absence thereof or the accommodation character of the paper may be shown. To admit parol proof of a contemporaneous oral agreement that so contradicts a lawful, valid written contract as to render the latter absolutely impotent, would amount to a circumvention of the beneficial object of the parole evidence rule. To hold that parties made two contracts at the same time, one of which is in positive contradiction of the other is somewhat fantastic. In Wright v. Remington, 41 Id. 48, the third ground of defense was, that at the time of the execution of the notes, it was represented to Mrs. Kemington that the signing was a mere matter of form, and that she would not be held liable. It was held that evidence of such contemporaneous parol declarations was inadmissible. Reviewing the judgment in the Court of Errors and Appeals, 43 Id. (at p. 452), the Chancellor stated: “As to the other defense, it is enough to say, that to admit proof of a parol contemporaneous promise, on the part of the payees, that the wife should not be called upon to pay the notes, would be in violation of the familiar rule of evidence which excludes parol evidence to contradict the terms of written instruments.”

In the case of Gerli v. National Mill Supply Co., 78 N. J. L. 1; 73 Atl. Rep. 252; affirmed, 80 N. J. L. 464; 78 Atl. Rep. 1134, the question projected was whether the contract embodied in a promissory note, by which an accommodation maker obligates himself to pay a fixed amount -of money to the holder at a specified date, can be controlled by oral evidence that at the time of the delivery of the note by the maker to the holder it was understood between them that the note was to be paid by a third person for whose accommodation it was drawn and not by the maker. Such a defense was held to be inadmissible. In Middleton v. Griffith, 57 N. J. L. 442; 31 Atl. Rep. 405, it was declared in 57 N. J. L. (at p. 448): “Evidence of a parol contemporaneous agreement that the note should not be paid, in whole or in. part, is not admissible.”

The incompetency of proof to establish an oral contemporaneous agreement of similar import was discussed by Chief Justice Gummere in the Beers case previously cited. (Supreme Court opinion) and Mr. Justice Heher alludes to the subject in Schmid v. Haines, supra. In Giberson v. First National Bank, 100 N. J. Eq. 502; 136 Atl. Rep. 323, relief was sought in equity upon the assumption that an oral agreement of such import could not be proved in a court of law and it was held by the learned Vice-Chancellor that such a defense would not be available to the complainants at law.

ISTumerous cases, apparently the weight of authority, holding that such testimony is inadmissible are cited in 20 A. L. R. 490; 54 Id. 717; 75 Id. 1519.

■ A reconsideration of the grounds upon which the ruling was based leads to the conclusion that the direction of the verdict was proper.

Buie discharged.


author: Holland, C. P. J.

text:
    BESSIE LANCE, ADMINISTRATRIX OF THE ESTATE OF GEORGE LANCE, DECEASED, AND BESSIE LANCE, INDIVIDUALLY, PLAINTIFFS, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION, AND METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANTS.
    Decided July 31, 1941.
    For the plaintiff, Frank C. Scerbo.

    For the defendant The Prudential Insurance Company of America, Lindabury, Depue <& Faulks.

    For the defendant Metropolitan Life Insurance Company, McCarter, English & Egner (Augustus C. Sluder, Jr.).

   Holland, C. P. J.

Subsequent to the commencement of the suit as above entitled, a discontinuance was entered in behalf of one of the defendants, the Prudential Insurance Company of America. The action now concerns two industrial policies written by the remaining defendant, Metropolitan Life Insurance Company, on the life of the decedent, George Lance, the first issued November loth, 1937, and the second issued April 18th, 1938. George Lance, the insured, died August 10th, 1938. This suit was instituted August 19th, 1939. By stipulation, the case was tried without a jury.

The plaintiff contended that the policies were incontestable by virtue of the “incontestability clause.” This the defendant denied, and defended on the ground of breach of conditions of the policies; each policy provided, among other things, that, subject to the clause entitled incontestability, the policy was voidable by the Company if, within two years prior to the date of the issue the insured had been attended by a physician, unless it was not for a serious disease.

It was proved without contradiction that Dr. A. P. King had treated the decedent, George Lance, for cancer and jaundice, two concededly serious diseases, in April and May, 1937, within the two year period prior to the date of each policy. In open court it was admitted that the company had declared the policies void, that it had made a tender of a return of the premiums and that this had been refused. Whereupon the plaintiff moved for a directed verdict and thereupon the defendant moved for a judgment in its favor.

Each policy provides as follows:'

Incontestability

“This Policy shall be incontestable after it has been in force, during the lifetime of the Insured, for one year from its date of issue, except for nonpayment of premiums.”

This is in conformity with the language of the statute (formerly Pamph. L. 1925, ch. 179), now entitled R. S. 17:34-15 (c); N. J. S. A. 17:34-15(c)).

The plaintiff asserted that the only effective meaning which could be ascribed to this incontestability clause was that if the policy remained in force for one year from its date of issue without being overthrown or declared void by the defendant in some court action, proceeding or suit within that time of one year, that the defendant was thereby debarred from offering any defense, and thus the right to recover was absolute; and also argued that this right was not adversely affected either by the death of the insured within the one year period or by the inclusion in the incontestability clause of the phrase “during the lifetime of the insured.” This view was strongly resisted by the defendant.

The turning point at which the policies cease being contestable and become incontestable was never reached. This turning point would be one year from the date of issue during the lifetime of the insured.' The insured did not live for one year after the date of the issue of either policy. He died August 10th, 1938, a little less than nine months after November 15th, 1937, the date of issue of the first policy; and a little less than four months after April 18th, 1938, the date of issue of the second policy. Thus the policies remained contestable, and the defendant is entitled to assert its defense of breach of conditions.

The incontestability clause in these policies fixes the limitations of contestability as one year from the date of issue during the lifetime of the insured. This language has a normal and purposeful meaning; under this wording, the insured must live for at least one year after the policy is issued before it can mature into incontestability; if the insured dies before the end of that year has been reached, the policy remains contestable and never becomes incontestable against a valid defense. This type of clause (limited to a period during the lifetime of the insured) has an entirely different significance from that earlier type of incontestability clause in which the limitation of contestability is fixed by a definite period of time from the date of issue of the policy but without the requirement that such period of time must elapse during the lifetime of the insured; in this earlier type of incontestability clause, it makes no difference, generally speaking, when the insured dies, the criterions being the time when the contest is interposed and what constitutes a contest.

McAuliffe v. Metropolitan Life Insurance Co., 93 N. J. L. 189; 107 Atl. Rep. 258; Pisker v. Metropolitan Life Insurance Co., 115 N. J. L. 582; 181 Atl. Rep. 31; Orisini v. Metropolitan Life Insurance Co., 9 N. J. Mis. R. 407; 154 Atl. Rep. 201; Madama v. Metropolitan Life Insurance Co., 15 N. J. Mis. R. 545; 192 Atl. Rep. 830; Winter v. Metropolitan Life Insurance Co., 123 N. J. L. 568, are all cases which uphold the right of the defendant to interpose, under circumstances similar to those in this ease, the defense asserted here consisting of a breach, a declaration that the policy is void, and a tender of a return of the premiums.

The plaintiff urges the case of New York Life Insurance Co. v. Steinman, 103 N. J. Eq. 403; 143 Atl. Rep. 529, as controlling, but that case is concerned with the earlier type of clause (which did not necessitate a specified period of time to elapse during the lifetime of the insured) and consequently is not here applicable.

Also the case of Metropolitan Life Insurance Co. v. Magdalena Lodzinski, 121 N. J. Eq. 183; 188 Atl. Rep. 681, which deals with a similar earlier type clause (which did not require the insured to remain alive during the stated period);

Also the case of Foster v. Washington National Insurance Co., 118 N. J. L. 228; 192 Atl. Rep. 59, in that ease the incontestability clause contained not only a “during the lifetime of the insured” phrase, but in addition thereto it also contained two conditions broader than the statutory prescription, i. e., that the policy should be incontestable if it had been in force during the lifetime of the insured, for a period of two years from the date of issue except for nonpayment of premiums, fraud or misstatement of age; the policy in that case was issued November 14th, 1932, the insured died on August 5th, 1935, and Mr. Justice Heher, for the Supreme Court of New Jersey, held that the Company had no legal justification for diluting the incontestability clause by adding such conditions as fraud and misstatement of age, neither of which were authorized by the statute. With these two unwarranted conditions eliminated, the incontestability clause obviously had matured for two years during the lifetime of the insured; and thus the policy had becomfe incontestable, and accordingly a judgment for the plaintiff was decreed. That case does not turn on the meaning and intent of the lawfully included phrase “during the lifetime of the insured,” as is contended by the plaintiff, but upon the added phrase “fraud or misstatement of age,” conditions which are not permitted by law.

While there is no decision directly in point in our New Jersey courts, many cases in other jurisdictions recognize and construe the meaning of the phrase “during the lifetime of the insured” and give it an ordinal and easily understood meaning within the intent and purpose of the legislative edict. Sun Life v. Allen (Mich.), 259 N. W. Rep. 281; Carpentieri v. Metropolitan (Pa.), 10 Atl. Rep. (2d) 37; Palmer v. John Hancock, 265 N. Y. S. 796.

I hold in this case that the insured was required to survive the specified period of time, one year, before the policies could become incontestable. Since the insured did not survive, the policies are contestable and subject to the defense offered. The defense was valid and effective.

A verdict of no cause in favor of the defendant is rendered.