text:
    CHARLES ALBERT, PETITIONER-RESPONDENT, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, RESPONDENT-PROSECUTOR.
    Submitted October term, 1936
    Decided March 31, 1937.
    Before Justices Paetceb and Lloyd.
    For the prosecutor, William, F. Hanlon.

    For the respondent, Gebhardt & Gebhardt.

   Lloyd, J.

This is a workmen’s compensation case. There was an award to the petitioner and this award was affirmed in the Common Pleas. The question presented is whether at the time the injuries were received by the petitioner he was engaged in intrastate or in interstate employment.

The accident for which the claim was made happened early on Sunday morning, January 14th, 1934, while the employe was repairing a locomotive of the defendant company at Hampton, New Jersey. The engine, No. 765, had on the previous day hauled train No. 351 from Jersey City to Hampton. When the train reached Hampton it was discovered that many of the engine’s flues were leaking. The engine was uncoupled from the train at Hampton, the fire drawn and repairs of the leaks undertaken by the petitioner early on the morning of the 14th. In performing this service, which took six hours, he was injured in the eye, and for this claim was made.

The engine involved remained at Hampton until Monday morning, the 15th, when it was coupled to train No. 300 leaving Hampton that morning. This train had passengers for New York. There was elo proof as to whether Fo. 251 (Saturday’s train) had interstate passengers. There was some proof that the engine had been assigned to make the double run on Fo. 251 from Jersey City to Hampton on the 13th and to return with Fo. 200 on Monday morning.

The question in the case is of course whether the engine was withdrawn from service or whether it was simply an interruption of a continuing service for the purpose of repair. The commissioner found the former and the Common Pleas found likewise. Whatever may have been the intent, the actual fact seems to have been a definite withdrawal from the service in which it was engaged. It was not temporarily taken out of an interrupted interstate haul. Its service had definitely ended with the completion of its day’s run from Jersey City to Hampton. While it might have been intended that it should enter interstate service on the following Monday, there was nothing to determine that it would do so. It depended on the nature and estent of the repairs.

We think the case is controlled by such decisions as those in Bissett v. Lehigh Valley Railroad Co., 102 N. J. L. 283; 132 Atl. Rep. 302; affirmed, 103 N. J. L. 172; 134 Atl. Rep. 915; Brewer v. Pennsylvania Railroad Co., 14 N. J. Mis. R. 130; 182 Atl. Rep. 818, where, as here, the car had been withdrawn from, though intended to continue in interstate service. Minneapolis and St. Louis Railroad Co. v. Winters, 242 U. S. 353.

The test is whether at the moment the instrument of service and the work being done on it are actually in interstate transportation. We think it was not in this case.

The judgment is affirmed, with costs.


source: Caselaw Access Project

author: Lloyd, J.

license: Public Domain

text:
    THE CITY OF ASBURY PARK, PROSECUTOR, v. WALTER R. DARBY, DAVID T. WILENTZ AND W. H. THAYERMARTIN, THE MUNICIPAL FINANCE COMMISSION OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Submitted October term, 1936
    Decided March 31, 1937.
    Before Justices Parker and Lloyd.
    Por the prosecutor, Ward Kremer and Harry Cassman.

    Pot the respondents, William A. Stevens, E. J. Dimock and Arnold Frye.

   Lloyd, J.

The writ was issued to review a resolution of the municipal finance comjnission providing a budget for the city of Asbnry Park and directing the state auditor to certify to the city council tax levies for debt service in the amount of $861,253.86.

The prosecutor contends that the commission possesses no such power. We think it has.

The general purposes and powers of the commission are discussed in the case of Hourigan v. North Bergen Township, 113 N. J. L. 143; 172 Atl. Rep. 193, and it was there said that “The act confers upon the finance commission in respect to the municipality’s financial affairs, powers somewhat akin to those exercised by receivers of insolvent corporations.”

Chapter 292, laws of 1935, page 926 (N. J. Stat. Annual 1935, § *136-4700(355), provides that “whenever * * * the Municipal Finance Commission * * * shall function in any municipality, the auditor appointed by the Commission in and for such municipality shall, upon the adoption by the Commission of a resolution providing therefor, have, with respect to such municipality, authority to recommend the tentative annual budget to the governing body and to the Commission.”

Section 2 providing that the commission may suspend or remove a public official failing to comply with the provision of any law, was repealed by chapter 10 of the laws of 1936, page 21. Section 6, however, provides that any resolution adopted by the commission pursuant to the act shall be binding on the municipality. N. J. Stat. Annual 1935, § *136-4700(360).

The auditor appointed by the commission for Asbury Park was authorized by it to prepare and recommend the tentative annual budget to the commission and to the city. This budget was approved by the commission and that body directed that the state auditor certify mandatory debt service appropriations as above set forth. It would seem that the statute contemplated that these recommendations when made should have binding force on the municipality. Such indeed we think is the plain effect of section 6 of the act, and if, as declared in the Hourigan case, supra, the act confers powers over the municipality’s financial affairs somewhat akin to those exercised by receivers of insolvent corporations, it would be idle to treat the resolution of the commission touching the budget as a mere gesture.

The writ is dismissed, with costs.


author: Ely, D. C. J.

text:
    Second Judicial District Court, Bergen County.
    WALTER BEIERLEIN, PLAINTIFF, v. SARAH FAULKNER AND CATHERINE ALSTEN, DEFENDANTS.
    Decided March 21, 1937.
    For the plaintiff, Martin Klughaupt.

    For the defendant, Charles F. Black.

   Ely, D. C. J.

This matter comes before me on rule to show cause why certain moneys levied under execution, and on deposit in the Citizens First National Bank and Trust Company of llidgewood, to the credit of the defendant Catherine Alston should not be turned over to the plaintiff in execution. The defendant offered testimony that there was on deposit in the bank the sum of $38, but stated that $28 of the $38 was part of the proceeds of a check which she received from the Travelers Insurance Company for compensation. Although there was no actual proof of an award under the Now Jersey Workmen’s Compensation act, the plaintiff, on the rule to show cause, has not raised the question, but contends that it makes no difference, and I will assume that the particular check in question was a payment under the Workmen’s Compensation act.

The particular check in question was of an amount of $40, and it appears from the testimony that the check was cashed and the defendant in execution, deposited on the day of the cashing of the check, the sum of $28 in the account which was levied upon later by the officer holding the execution.

The defendant contends that section 22 of the Workmen’s Compensation act, which reads as follows: “Claims or payments due under this act shall not be assignable, and shall be exempt from all claims of creditors and from levy, execution or attachment,” makes at least $28 of the savings account of the defendant exempt from levy under this execution.

I do not think so. On this particular question there seems to be no authority quoted in New Jersey. The defendant has cited to me a New York case under the New York statute. However,, the New York statute is worded differently and the circumstances surrounding the New York case are not the same.

The rule, with reference to exemptions, is one which must be strictly followed. The statute says “claims or payments due.” Had the legislature intended that these moneys should be exempt after receipt thereof, they would have eliminated the word “due.” Counsel for the defendant makes much of the fact that the purpose of the legislature in passing this exemption, was to save the recipient from becoming destitute by reason of an ancient debt. The debt on which this action is founded is one for rent, one of the living expenses of the defendant, and I cannot feel that it was the purpose of the legislature to allow the recipient of compensation payments to receive them and place them in a savings account, and then keep them beyond the reach of the just creditors for living expenses of that same recipient. It would seem to me that the purpose of the legislature was rather to avoid confusion in the administration of the workmen’s compensation bureau and to relieve that bureau of any extra bookkeeping and resultant confusion which might be caused by execution levies made against an employer and give an employer any excuse or reason for delay in making their payments “due” promptly.

In the case at bar the moneys were paid and received by the defendant, and mingled with her funds, and as a result I cannot find that these moneys on deposit in the savings account are any longer a claim, nor a payment “due” under the act.

Further, if I were to adopt the defendants’ contention, it would be to allow a permanent exemption to any recipient of payments under the Workmen’s Compensation act, of all moneys received under that act, for at any later date a defendant might come in and state that his savings account consisted of payments which he had received under the Workmen’s Compensation act, and that therefore his savings account is exempt.

I will allow an order on the bank to turn over the moneys to the officer holding the execution.


author: John C. Wegnek, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HENRY POROWSKI, PETITIONER, v. AMERICAN CAN COMPANY, RESPONDENT.
    Decided March 30, 1937.
    For the petitioner, Alfred Brenner.

    For the respondent, Carl S. Kuebler.

   % % ^ ífc % ífc #

In the case sub judice facts as to employment and nature, thereof are admitted.

Petitioner alleges that he was required to play baseball on a team which represented the respondent and was injured while in that capacity.

The evidence reflects the fact that while respondent company was represented by a ball team that practice was conducted after working hours and that games were played out of working hours. FTo uniforms were supplied by the company.

The respondent obtained no advantage due to the efforts of the team either as an advertising medium or monetarily.

Briefs were submitted by both sides after the hearing which I have carefully studied and considered.

In Byrant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, it was held that an accident arises out of the employment when it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to an employment when it belongs or is connected with what the workman has to do in fulfilling his obligation, it may be an extraordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.

In Panacona v. Vulcanite Portland Cement Co., 37 N. J. L. J. 75, it was held that a risk is not incidental to the employment when it is not due to the nature of the employment, or when it is a new or added peril to which a workman by his own conduct exposes himself, a peril which his contract of service neither directly or indirectly involves or obliges him to consider.

In Ryan v. State Industrial Commission, 261 Pac. Rep. 181, it appeared that petitioner’s regular employment was that of meter reader. It also appeared, without dispute, that the principal reason petitioner was employed by the company was that he was a good ball player, and therefore a valuable member of a team representing the employes of the company in a local baseball league. It further appeared that the employer in no way participated in supporting the team which represented the company. In this case it was held that the accident did not arise out of and in the course of employment.

I am of the opinion in the case sub judice that petitioner has not sustained the burden of proving his injury due to an accident arising out of and in the course of employment. I am, therefore, granting the respondent’s motion dismissing petition.

% J¡! ÍJÍ SjC

John C. Wegnek, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY BEERMAN, PETITIONER, v. PUBLIC SERVICE COORDINATED TRANSPORT, RESPONDENT.
    Decided April 1, 1937.
    Por the petitioner, Abram A. Lebson.

    Por the respondent, Elmer Romine.

   ❖ ❖ ❖ ❖ ❖ ❖

This is a dependency claim filed by petitioner as the wife of one Henry Beerman alleging that under date of September 22d and September 29th decedent strained the recti and lumbar muscles. Decedent died on November 4th, 1935, and the undisputed cause of death is lympho-sarcoma. Petitioner, alleges that there is a causal relationship between the trauma and death either a direct cause or by aggravation.

Eespondent denied the occurrence of the accident in their answer to amended petition. Mention may he made of the fact that an original petition was filed December 16th, 1935, alleging that on September 29th, 1935, decedent in endeavoring to prevent a large double wheel from falling strained the recti and lumbar muscles. An amended petition was filed April 27th, 1936, alleging occurrence on or about September 22d and September 29th. Both petitions were filed within the statutory time. In the later amended petition it is alleged that decedent on or. about September 22d while installing or removing a clutch or transmission in endeavoring to prevent same from falling strained his recti and lumbar muscles.

At the conclusion of the petitioner’s case, attorney for respondent moved for a dismissal of petition on various grounds, briefs were submitted and under date of November 10th, 1936, I denied the motion by order holding that petitioner had presented a prima, facie case as to the accidents.

In again analyzing the testimony of both petitioner and respondent 1 am still of the opinion that decedent met with an accident arising out of and in the course of his employment. Exhibits marked R-l and R-2 — -12-18-36, are the original and copy of an accident report issued September 29th, 1935, by one W. Jesson, foreman, who testified and approved by J. W. Whetham, division superintendent of bus maintenance October 1st, 1935. This report described accident as follows: “while lifting tire off floor and setting it in an upright position on bus 6224 I felt a sudden strain in my abdomen I stopped the work I was doing and as I straightened up a severe pain continued through my back and abdomen. After doctor’s examination he said I strained muscles in my back and stomach.”

Testimony is also offered as to the previous occurrence including the fact that on September 25th, 1935, decedent was treated by Dr. Kroll for an acute myositis of traumatic origin as well as that of a fellow worker who decedent complained to immediately following the accident.

I am therefore holding that decedent met with an accident arising out of and in the course of his employment.

As to the question of the date the ease of Elio v. Singer Manufacturing Co., 160 Atl. Rep. 325, holds as follows: A

petition for compensation appearing to have been filed in time should not be dismissed because no definite date of accident was alleged.

The question now to be determined is, if there was any causal relationship either directly or by aggravation between decedent’s death and the trauma.

Decedent, age twenty-four, about six feet tall, weighing one hundred and eighty to one hundred and ninety pounds was in good health and had never been sick with the exception of an occasional cold for ten years preceding his death and had been employed by respondent company for several years as a repairman, injures himself on September 22d causing according to diagnosis of Dr. Kroll “an acute myositis of traumatic origin” — “strained muscles — fiber in abdominal wall”- — “erector muscles strain- — -lower part of abdomen.” Dr. Kroll treated decedent once and advised him to see respondent’s Dr. Pratzman.

Dr. Pratzman first saw decedent on September 29th, 1935, and diagnosed condition as “sprain of recti muscles and sprained lumbar muscle.”

Decedent stopped work on October 6th, 1935, and died November 4th, 1935. Autopsy revealed decedent died from a lympho-sarcoma.

On October 7th, 1935, decedent admitted to Englewood Hospital for treatment, being sent by Dr. Pratzman. At the time of his death his weight was approximately one hundred pounds.

In considering the medical testimony I am confronted with the usual situation prevalent in issues of this type. A widow on one side whose resources have been cut off by the death of her husband, left with three children of tender age, dependent now on others for support relying upon the knowledge of practitioners who had examined and treated decedent unable to disburse any funds to engage experts who from their experience would be of assistance to her in testifying, and the respondent with unlimited funds at their command placing them in a position to engage medical experts who belonging to a school of thought in that particular field are definite in their statements to the effect that decedent’s death could not have been in any way connected with the alleged trauma. Dr. Kroll and Dr. Pratzman, men of high standing and repute in their community, general practitioners, familiar with decedent’s physical condition immediately after the accident were of the opinion that condition could have been aggravated by the trauma. Dr. Giladi, county physician of Bergen, who did not examine decedent, but in answer to a hypothetical question was of the opinion that injury could aggravate a pre-existing condition of sarcoma.

That the trauma as described could not have caused or aggravated lympho-sarcoma was the definite testimony of Dr. Francis Carter Wood, Dr. Leila C. Knox, Dr. James Ewing, Dr. Edgar A. Ill, Dr. James J. Duffy and Dr. Harrison L. Maitland. I need not comment upon the reputation and ability of the aforementioned physicians. Their reputations in the field of neoplastic surgery and their study of cancer in all its forms have won for them world-wide recognition.

Dr. Leila Knox, whose theory is generally agreed to by her associates did testify “that massaging — too much massaging would aggravate but this must be by opening up a larger number of blood vessels than those involved.”

Medicine it is generally agreed is not a positive science. As in every field we find medical men divided in their opinions as to tiie cause, reaction and final termination of many diseases. In cancer the same situation applies. I have carefully reviewed the literature applicable.

What is cancer? The English word cancer comes from the Latin word “cancer” meaning “crab.” The Romans used the word also to name the disease with which they were familiar. The general term “cancer” is often used to describe various kinds of malignant growths which strictly speaking are not really “cancers” in the sense that a physician may use the word.

Although the nature of cancer is not at present fully understood, there is a large amount of practical knowledge now available regarding its causation.

Authorities at present hold the opinion that cancers are caused, in a practical sense, by various forms of chronic irritation, to which the human body is exposed from the cradle to the grave.

Exactly how such irritation, or inflammation, operate to produce cancer or to favor its development, is the great question in cancer research to-day. For the average person, however, it is sufficient at present to know that some form of chronic irritation or chronic inflammation appears to play a most important part in the causation of all cancers.

There are many kinds of cancers, differing widely in their make-up and behavior. Some are external, some internal. Some grow rapidly, some slowly. Some spread quickly through the body, others do not. Some are very dangerous, others are less harmful. All possess the common habit of disorderly growth.

There are two main reasons for this neglect of the prophylaxis of cancer. In order to prevent a disease one must know its causes, and every one has been told again and again that the ultimate cause of cancer is unknown. There is a very venerable and widespread belief, in and out of the medical profession, that cancer is caused by some mysterious microscopic parasite. To-day, however, the scientific evidence is against the parasite theory of cancer.

A review of the opinion of the authorities reveal that following Dr. William Seaman Bainbridge in his paper entitled “The Bole of Trauma in the Production of Cancer” refers to many authorities who hold that trauma can incite or cause cancer.

His conclusion after citing the opinion of various authorities is as follows

“The relation between trauma and cancer production is a medicolegal question of considerable interest and importance from the standpoint of industrial and other compensation.
“It also has a bearing on the study of cancer etiology and is of real concern to the patient.
“While there is wide divergence of opinion as to a causal relationship, the majority of those who contend to the contrary are pathologists who rarely deal with the patients directly, during life.
“It is conceded by many that the surgeon, with the full facts assembled before him — clinical history, signs, symptoms, and laboratory reports — is the one to make the decision in a given case, as to whether a neoplasm which follows a trauma is the direct result of the injury.
“It seems evident that no definite time limit can be set between the receipt,of a trauma and the onset of neoplastic formation. •
“While a latent tumor may be brought into symptomatic prominence by a blow, it cannot be adduced that all tumors which appear following an injury have merely been waiting for an opportunity to announce themselves.
“When there is clear sequence of events — normal individual, injury, neoplasm, and the French postulates are met — the burden of proof rests directly with the trauma as the exciting cause of the cancer.”

In a paper entitled “Injury as a Causative Factor in the Development of Malignant Tumors,” by William B. Coley, M.D., and Herman L. Iginbotham, M.D., the following conclusion is arrived at after expressing the view of many outstanding authorities:

“A careful study of our own series of cases personally observed, we believe, warrants the following conclusions:
“(1) That a single local trauma may be important factor, probably the determining factor, in the development of malignant tumors of all types.
“(2) That trauma is a causative factor in a larger proportion of cases of sarcoma than carcinoma, and in a larger proportion of bone sarcomas than soft-part sarcomas.
“(3) That the interval of time elapsing between the injury and the appearance of the tumor is often much shorter than is recognized by most writers. In the majority of cases the tumor develops within the first month or six weeks of the injury but in a considerable number of cases it may develop within one or two weeks. The latter cases justify the classification of acute traumatic malignancy originally suggested by the English surgeons. The examples herein report furnish convincing evidence of the actuality of such a condition.
“(4) While courts and compensation bureaus both in this country and in Europe have very generally recognized single trauma as a competent producing cause of all types of malignant tumors, it is only fair to the insurance carriers that each ease be studied and judged on its own merits.
“(5) If the case in question fulfills all the conditions laid down by Segond then a causal relationship between the injury and the tumor must be admitted.”

A search of the cases develops one analogous to the case in question. R. H. Simpson v. Industrial Commission (1929), 169 N. E. Rep. 225. The facts are as follows: Decedent endeavored to help two fellow employes lift a weight of approximately five hundred pounds and had just pulled rope when his hand “crunched down” and slipped. He immediately complained of a pain in his back on right side. The evidence reflected decedent prior to the incident had been a strong, vigorous, active man in good health. He never was well after the accident and died six months thereafter. Decedent died as the result of a lympho-sarcoma. It was held compensable on the ground that accident either caused, aggravated or accelerated a pre-existing sarcoma. Gaetz v. City of Melrose (1923), 193 N. W. Rep. 691; Lucas v. Haas Coal Co., 179 Atl. Rep. 876; Lewis v. Port of London, 7 B. W. C. C. 577 C. A.; McElligott v. Franford General Insurance Co., 2 Mass. Ind. Acc. Bd. 521; Smith v. Primose Tapestry Co., 131 Atl. Rep. 703; Winchester Milling Corp. v. Sencindiver, 138 S. E. Rep. 479.

The above are cases in which it was held injury either caused or aggravated cancer. An extract from the later case reads as follows:

“The general rule clearly to be adduced from the decisions in this type of case, is that if the facts show a causal connection between the injury and the development of cancer, then the two cannot be separated and the victim of cancer is entitled to compensation. It frequently appears in the reports of these cases that doctors disagree as to the proper connection between the blow and the development of cancer, but from the standpoint of the Compensation act, where a workman is apparently healthy, as was the case here, and able to perform his regular work, and immediately following a severe blow a condition sets up which later turns out to be cancerous, the commissioner believes that the connection between the blow and such development is clear.”

In conclusion I quote Dr. Ewing in “Modern Attitude Toward Traumatic Cancer Archives of Pathology 19 :690— 728 — May, 1935:

“The interpretation of compensation laws should recognize that a trauma is never the sole cause of a cancer and is often only a subordinate, although determining, cause, that the probability of coincidence is great, that aggravation by injury is rare and difficult to establish, and that many difficulties and uncertainties will surround this subject for a long time to come. Some form or recognition of partial liability seems necessary to meet these conditions. Without it the compensation law becomes a form of sickness insurance against the natural occurrence and ordinary consequence of one of the major causes of disability and the cause of ten per cent of the deaths.”

In Lundy v. Brown, 106 Atl. Rep. 362, the late Mr. Justice Kalisch, for the Supreme Court stated:

“We think there was evidence which fully justified the finding of the court below on the mooted inquiry. It is true that the medical testimony in the case is in sharp conflict on the question whether the decedent died as a result of his injuries or from an entirely independent cause.”

In my opinion there is sufficient evidence to warrant a finding that the sarcoma was aggravated by trauma and hastened decedent’s death. I am therefore finding for the petitioner.

sí: s¡í í¡í í’í &

John C. Wegnek, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ARCHIE BROWER, PETITIONER, v. FRANKLIN TOWNSHIP AND FRANKLIN TOWNSHIP FIRE DEPARTMENT NO. 1, RESPONDENTS.
    Decided April 1, 1937.

      Por the petitioner, Theodore Strong & Son.

    Por the respondent, Clarkson A. Cranmer.

   In the above entitled matter question has arisen as to the liability of the respondent to wit: Township of Pranklin in Somerset county.

Petitioner was injured August 3d, 1936, while driving a fire truck which turned over, injuring him, necessitating hospitalization and medical treatment.

Prom the testimony, petitioner was a member of Pranklin Pire Company No. 1. He also acted in the capacity of secretary to the company.

Sufficient evidence was produced by petitioner to substantiate his membership in the said company as well as to prove said company consisted of volunteer firemen fully recognized as such by law under a granted charter and under the control of respondent’s common council. It was further adduced by evidence that fire company received the sum of $100 per year which was annually budgeted by the authorities of such township for that purpose and for fire protection.

Chapter 355, laws of 1931 (N. J. Stat. Annual 1931, § **236-37) which amends the original Compensation act includes in section 1 as to those covered by the act “every volunteer fireman doing public fire duty under the control or supervision of any commission, council, or any other governing body of any municipality or of any fire district within the state, who may hereafter be injured, &c.”

It further reads that “he shall be compensated under and by virtue of section 2 of the act, &e.”

The amendment itself does not provide upon what basis compensation is to be determined.

It is a primary rule of construction that all statutes should be so construed as to carry into effect the true intent of the legislature. We believe this rule of following the intention of the -legislature applies as well to the construction of several statutes, considered together, as it does to the interpretation of a single statute, considered above. See Thorpe v. Schooling, 7 Nev. 17. The object in either case is to ascertain what is the law.

Chapter 172, laws of 1931 (N. J. Stat. Annual 1931, § :::*236-38a(l), which requires and authorizes municipalities, &c., to provide compensation insurance for volunteer firemen provides under paragraph 2 the basis which compensation is to be paid under the elective schedule of the Compensation act. The basis is the weekly salary or compensation received in private employment.

Franklin township carries no compensation insurance and therefore holds this schedule does not apply to them.

I feel that the intent of the legislature is apparent when both chapter 355 and chapter 172, laws of 1931 {supra) are considered together. I cannot conceive of any circumstance under which the legislature would provide for a lower or higher basis for compensation for volunteer firemen when a provision is already established when municipalities are insured.

I am, therefore, holding that:

1. Petitioner under the term of the act is an employe of Franklin township.

2. That he met with an accident arising out of and in the course of employment.

3. That he is entitled to compensation based upon his weekly wage in private employment. $$$$$$$

John C. Wegnek, Referee.


author: Herr, A. M.

text:
    Helen E. T. Kelly, petitioner, v. William J. Kelly, defendant.
    [Decided July 8th, 1936.]
    This opinion was affirmed by the Court of Errors and Appeals and reported at 121 N. J. Eq. 255.

      Messrs. Theodore Strong & Son (Mr. Stephen V. R. Strong, of counsel), for the petitioner.

      Mr. Louis L. Hendler, for the defendant.
   Herr, A. M.

This is a suit for divorce from the bond of matrimony on the ground of extreme cruelty, under the Blackwell act. P. L. 1923 ch. 187 p. 494; Cum. Supp. Comp. Stat. 1911-1924 p. 989 § -62-3a.

On the facts the case of the petitioner is well proved and amply corroborated, and is met only by the uncorroborated and unconvincing denials of the defendant. The brutal conduct of the defendant toward his wife is proved to have been such as to justify the court in believing that if the defendant is allowed to retain his power over the petitioner, and she is compelled to remain subject to him, her life or her health will be endangered, or that he will render her life one of sneh extreme discomfort and wretchedness as to incapacitate her to discharge the duties of a wife. The petitioner has made out a ease of extreme cruelty entitling her to a decree of divorce. Sachse v. Sachse, 107 N. J. Eq. 41; 151 Atl. Rep. 744

The defendant argues, however, that all of the evidence of acts of cruelty committed prior to January, 1933, should have been excluded because on that date there was a reconciliation between the parties. The answer is that evidence of the husband’s subsequent conduct was presented for the purpose of proving, and does in fact prove, that he was guilty of a breach of the condition of the condonation. Michels v. Michels, 110 N. J. Eq. 393; 160 Atl. Rep. 518.

The defendant further insists that the court wrongly admitted evidence of defendant’s conduct toward the petitioner within the period of six months immediately preceding the filing of the petition and within the period during which this suit has been pending. Such evidence was offered and admitted not as constituting in whole or in part the cause of action sued upon, but to show a breach of the condition of the condonation and to give character to the earlier acts complained of as constituting the cause of action. Tor both of these purposes such evidence was relevant. Soos v. Soos, 14 N. J. Mis. R. 381; 185 Atl. Rep. 386.

The petitioner is entitled to a decree.


author: Per Curiam.

text:
    BOROUGH OF HAWTHORNE, PLAINTIFF, v. HOWARD WILLIAMS ET AL., DEFENDANTS.
    Decided April 7, 1937.
    Before Justices Parker, Lloyd and Donges.
    Por the motion, Stephen P. Piga.

      Contra, John D. Masterton.

   Per Curiam.

This is a motion to quash a writ of attachment issued on order of a Supreme Court commissioner on the ground of fraud (a) in incurring the obligation, and (b) in disposing of property with intent to defraud. The motion was originally denied by a Circuit Court judge, who, however, was without jurisdiction. It was again denied by Mr. Justice Heher, and is renewed before the court. Key v. Paul, 61 N. J. L. 133; 38 Atl. Pep. 823.

The grounds of the motion stated in the petition are that the alleged facts are based entirely on hearsay and information, and also the affidavit contains conclusions not based on facts set forth. The grounds stated in the notice are to the same effect, although somewhat further particularized.

The motion is founded solely on the face of the affidavit, which we have read with care and find it is not ifbased entirely on hearsay and information,” and there is nothing on its face to show that the averments are not within the knowledge of the affiant. As to containing conclusions of fact, to a minor extent this may be conceded. But eliminating these, there is quite enough remaining to support the writ.

The motion to vacate is denied, with costs.