author: John J. Stahl, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ABRAHAM HERTZBERG, PETITIONER, v. KAPO DYEING AND PRINTING CO., RESPONDENT.
    Decided January 6, 1941.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, George E. Meredith (Walter W. Hubley, of counsel).
   *******

The petitioner was regularly employed by the respondent as production manager of its dyeing and printing plant at Haledon, New Jersey. His weekly wages were fixed at the rate of $75, and his duties, while dealing primarily with production over which he had full and complete charge, required him, among other things, to expedite all special rush orders. It so happened that on the morning of March 9th, 1939, the petitioner was fulfilling a special rush order for one of its important New York customers, Ciro Fabrics, Inc., which order had been promised for ten o’clock delivery by Ciro’s motor truck. However, when the Ciro truck arrived at the respondents plant at the appointed hour, the said order was not quite ready, and amid much confusion and excitement on behalf of the petitioner and in an effort to prevent any unnecessary delay, Hertzberg grasped the particular roll' of silk as it came from the machine, and, holding it upright against his chest, proceeded to carry it to a nearby elevator whence it was to be taken to an upper floor for further processing. While the precise weight of the roll is not known —various witnesses estimating its weight from 25 pounds to 125 pounds — I am satisfied it was of considerable weight, weighing approximately 75 pounds; After walking only a few feet in the direction of the' elevator, he was seized with severe pains in the region of the heart, chest and shoulder blades, and upon reaching the elevator, he was compelled to drop the roll because of the said pains and general weakness. A moment or. so later he collapsed, followed by a short period of unconsciousness and complete prostration. Several co-employes, working nearby, came to his assistance and carried him to an outer office where, after being revived, he rested for nearly three-quarters of an hour, although to all observers, he appeared pale, weak and acutely ill. He was thereupon taken home in an automobile of a company official; and upon his arrival there he was put to bed and was treated by Dr. Morris S. Joelson. On examination the doctor found petitioner pale and cj^anotic, with a weak pulse and weak heart sounds, complaining of pain in the region of his heart, which pain seemed to radiate to the left arm; in general he appeared weak and gravely ill, with a blood pressure of 108/66. Dr. Joelson diagnosed the condition as one of coronary occlusion or coronary thrombosis, and prescribed rest and hypo-injections as the mode of treatment. The petitioner was confined in bed at his home for five weeks, receiving daily treatment by Dr. Joelson, and was thereafter removed to the Barnert Hospital, Paterson, New Jersey, where he remained a patient for four weeks under the care of the said physician. He was first able to leave his home for short convalescent walks during the early part of June, 1939, and was able to resume light clerical duties about the middle of December, 1939. At the present time he suffers from general debility and weakness, cardial pains, and pains in shoulder blades, becoming fatigued and tired upon the slightest form of exertion.

A decision in this case rests upon the determination of two main questions, to wit: (1) Has the petitioner sustained the burden of establishing proof of an accident arising out of and in the course of employment, and if so, (2) has the said accident caused a personal injury resulting in permanent cardiac impairment?

The first question, obviously, must be resolved in favor of the petitioner. Since our act is a remedial statute which must be construed liberally in order to carry out its beneficent purposes, the popular and ordinary definition of the word “accident,” and not the stricter definition used in construing health and accident insurance policies, is to be used in compensation cases.

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In Zappala v. Industrial Accident Commission, 82 Wash. 314; 144 Pac. Rep. 54, Judge Morris placed injuries by strain on the same footing as injuries by direct force when he stated: “To hold with the commission that, if a machine breaks, any resulting injury to a workman is within the act, but, if the man breaks, any resulting injury is not within the act, is too refined to come within the policy of the act as announced by the legislature in its adoption and the language of the court in its interpretation. The machine and the man are within the same class as producing causes, and any injury resulting from the sudden giving way of one, while used as part of any industry within the act, is as much within the contemplation of the act as the other.”

To a similar effect, in a case arising under the British act upon which our act is patterned, it was held that an internal injury caused to a person in a normal state of health was a fortuitous and unforeseen event, where the workman suddenly tore several fibres of the muscles of his back while lifting a heavy beam. Boardman v. Whitworth, 3 W. C. C. 33. The court’s reasoning is succinctly stated as follows: “To me it is the same as if he (workman) had been using a rope strong enough for the purpose, and by overstrain or sudden jerk the rope had snapped and the beam had fallen upon him. That ■would be an accident. In one case the work is done by a rope; in the other, by a set of muscles. In each case the machinery is normally fit for the work, but the unexpected happens, the rope or muscle snaps and there is an accident. To my thinking, there is' in the word “accident” always an element of injury.” Boardman v. Whitworth, supra.

So under our own act, in VanMeter v. E. R. Morehouse, Inc., 13 N. J. Mis. R. 558; 179 Atl. Rep. 678, a sprain of a back which started up an old arthritic condition, suffered by a farm laborer while clearing the field by pulling’out weeds and bushes, was held to be a compensable “accident” arising out of and in the course of employment. Mr. Justice Bodine speaking for the Supreme Court, stated: “A sprain of the back, and such it was pronounced by competent medical opinion, is obviously an accident, and as it arose out of and in the course of the employment, the prosecutor was entitled to compensation. This is not a case where the result was accidental but otherwise the means. Lawrence v. Massachusetts Bonding Co., 113 N. J. L. 265; 174 Atl. Rep. 226. Had the employe broken his leg or sprained an ankle while at work, it clearly would have been called an accident. A sprain of the back falls in the same category. * * *”

Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832, extends the principle of strain to cases involving the heart, holding that an accidental strain of one’s heart, even though the heart was previously weakened by disease, is a compensable injury.

In Rother v. Merchants Refrigerating Co., 122 N. J. L. 347; 6 Atl. Rep. (2d) 404, compensation was allowed'for the death of an employe who had been afflicted with heart trouble for several years and who died during the first hour of work unloading a freight car containing crates of oranges and while placing crates, weighing sixty to eighty-five pounds, on a hand truck. * * *

And in the very recent case of Geltman v. Reliable Linen Supply Co., 18 N. J. Mis. R. 423; 13 Atl. Rep. (2d) 844, death of an employe who was driving an automobile in the performance of his duties as a salesman for his employer, and who became involved in a heated altercation with another motorist over a traffic incident, was held to be the result of a compensable “personal injury” by “accident.” Deputy Commissioner Medinets, in a well reasoned opinion, amplified the rule by stating: “It is not essential that there be a physical injury. The Workmen’s Compensation act imposes no such requirement. The clearly expressed legislative intent is to provide compensation when disability results from “personal injuries” suffered by accident arising out of and in the course of the services required by the contract of employment. A mental, emotional or nervous shock has been held to be a direct injury for which compensation was properly awarded. Hall v. Doremus, 12 N. J. Mis. R. 319; 171 Atl. Rep. 78; affirmed in 114 N. J. L. 47; 175 Atl. Rep. 369. So here, the extreme emotional excitement ensuing from the traffic incident which precipitated an acute anoxemia and resulted in the instantaneous death of the employe, is a “personal injury” by accident, as contemplated by the statute.”

Thus viewed in the light of these decisions, the present case, it would appear, comes squarely within the rule enunciated therein. * * * I am satisfied, too, that the proofs here meet the test recently applied by Mr. Justice Perskie, speaking for the Court of Errors and Appeals in Ciocca v. National Sugar Refining Co., 124 N. J. L. 329; 12 Atl. Rep. (2d) 130, holding: “A compensable accident arises out of the employment when the proofs show (1) that the employment was one of the contributing causes without which the accident would not have happened, and (2) that the accident was one of the. contributing causes without which the injury or death would not have resulted. Fuferi v. Pennsylvania Railroad, Co., 117 N. J. L. 508; 189 Atl. Rep. 126. * * *”

In passing upon the second and equally vital question, as to whether or not the said accident caused a “personal injury” resulting in permanent cardiac impairment, considerable medical testimony was adduced by both petitioner and respondent, much of which contained a definite contrariety of opinion.

Erom the undisputed evidence, it appears that Hertzberg for many years enjoyed health somewhat below par, having undergone several surgical operations during the past decade, consisting of an appendectomy, herniatomy and an operation for removal of his gall bladder. It also appears from the .evidence that prior to the said accident, the petitioner, although unaware of the fact, suffered from a moderately advanced vascular disease, known as arteriosclerosis, with certain sclerotic changes in his coronary arteries; that the trauma or injury as a consequence of the accident consisted of a strain, by reason of a sudden and transitory rise in the blood pressure,' superimposed upon these weakened vessels; and that as a result thereof these already diseased vessels were exposed to further insult and alteration. However, it is a fundamental principle under this broad and remedial statute that the employer takes the employe subject to his physical condition when he enters his employment. Compensation losses are not made solely for the protection of employes in normal physical condition, but for those also Who are subnormal. The rule has been aptly stated by Mr. Justice Perskie in Bernstein Furniture Co. v. Kelly, supra, that “until such time as it may be provided to the contrary, by proper authority, the beneficent provisions of the act must and shall be extended alike to the weak and sick as well as to the strong and able, so long as those of either class, coming under the provisions of the act, sustain a compensable accident.”

To warrant a recovery under the act, it is not necessary that the injury flowing from the accident be the primary cause in initiating the disability; the requirements of the statute are satisfied if, from the evidence, it appears that the said injury, acting as an exciting or provocative cause, aggravates a pre-existing diseased condition, and thereby contributes in hastening its culmination in disability or death. Voorhees v. Smith Schoonmaker, 86 N. J. L. 500; 92 Atl. Rep. 280; Winter v. Atkinson Frizelle, 68 N. J. L. 401; 96 Atl. Rep. 360; Lundy v. George Brown & Co., 93 N. J. L. 107; 108 Atl. Rep. 252, and Geizel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328.

# % # # ‘k #

Much time was consumed at the trial on the subject of whether or not coronary thrombosis or occlusion is ever the result of trauma, disclosing that there exists a radical difference of opinion between the so-called medical authorities. It developed from the evidence that there are two separate and distinct schools oí thought; the one, sponsored by Dr. Ernst B. Boas, holding that there is a direct causal relation between trauma (strain and physical exertion) and the development of a coronary occlusion; and the other, championed by Dr. Arthur Masters, adopting the opposite view.

Conceding, therefore, that the petitioner in the present case suffered from a predisposing condition, to wit, arteriosclerosis of his coronary vessels, the controlling question dis-positive of the case is whether the injury was the exciting cause in setting up or contributing to a coronary occlusion at the time of his collapse, or whether the coronary occlusion was the natural result of the disease (arteriosclerosis) alone, progressing in its normal course and eventually leading to an ultimate closure of one of the branches of the coronary artery.

Dr. Morris S. Joelson, the treating physician, Dr. J. Allen Yager, a cardiologist, and Dr. Ernst B. Boas, a highly recognized specialist in diseases of the heart, testified in behalf of the petitioner and expressed the opinion that there was a definite causal connection between the trauma and the coronary occlusion. * * * They further stated in their testimony that the petitioner was suffering from the residual effects of a coronary occlusion, notwithstanding that the electro-cardiographs were negative — a not uncommon incident in cases of coronary disease because of the many silent areas in the heart; and that the permanent impairment or damage to the heart, in their opinion, produced a disability, ranging from fifty to seventy-five per cent, of the total.

On the other hand, Dr. Aaron Parson net, a specialist in cardiology, Dr. Francis fi. Meyers, a cardiologist, and Dr. Andrew C. Buoff, a specialist in the diagnosis and treatment of traumatic injuries, appeared in behalf of the respondent and testified, in substance, diametrically opposite to the views expressed by the petitioner’s medical experts. They testified that in their opinions the petitioner never suffered an attack of coronary thrombosis; nor is he suffering at the present time from the residual effects of such a condition; and that negative electro-cardiographs are confirmatory in ruling out such condition. * * *

There is thus presented for determination a closely balanced question of fact involving the conflicting views of the medical experts of the respective parties. I am not unmindful that I .am placed in the very difficult position of having to decide a rather technical question of medicine which has to some extent baffled the efforts of the leading medical authorities. The issue, however, is not whether certain medical authorities accept or reject trauma as a competent cause in the development of coronary occlusion; but rather, the question is whether there is in this case sufficient evidence to conclude that the petitioner suffered from a coronary occlusion and whether the said accident was an excitatory and contributing factor in its development; and I am satisfied that there is ample support in the evidence to sustain such conclusion. By the greater weight of the evidence, I am unable to perceive why the medical testimony which finds no causal connection between the accident and petitioner’s present disability should predominate over the testimony of equally competent medical experts (one of whom was the treating physician) who have no hesitancy in determining that the accident of March 9th, 1939, did in fact cause or precipitate a coronary thrombosis with resulting cardiac impairment. Neither can I disregard the testimony of the petitioner and his wife to the effect that prior to the day of the accident, he was free of cardiac symptoms and had never suffered any previous coronary attacks; and that since the accident there has been noted and detected a marked and decided decline in health, characterized by general weakness; recurrent cardial pains, pains in shoulder blades, and physical distress on exertion. Considering the sclerotic condition of the petitioner’s coronary vessels, it hardly requires the testimony of medical experts to establish that his coronary attack and collapse could have been, and, indeed, in all probability was precipitated by the degree of physical strain and exertion required by his work on the morning in question. True, he could have suffered such an attack in bed or during rest at home. But he did not experience such an attack in bed nor during a period of relaxation away from his job. The evidence points definitely to the fact that he was so stricken while engaged in the work of his employer at a task which subjected his heart and the coronary vessels to a strain beyond their capacity to withstand.

A search oí the decisions of this and other jurisdictions shows that recoveries for coronary thrombosis or occlusion have been made under the Workmen’s Compensation act. 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; Hughes v. Bloomfield Church, 18 N. J. Mis. R. 139; 11 Atl. Rep. (2d) 417; Farrell v. M. C. Ragatz & Sons Co. (Minn.), 250 N. W. Rep. 454; Stier v. City of Derby (Conn.), 174 Atl. Rep. 332; Becher v. Herschkowitz Bros. (N. Y.), 262 N. Y. Supp. 172; Barnes v. Department of Labor and Industries et al., (Washington Supreme Court, decided November 6th, 1940, and not vet reported in the official reports.

The facts in the case of Wagner v. Lewis, supra, are as follows : “Decedent, aged thirty-one, was employed as a laborer on a road construction job. He was in apparent good health, was robust, and was used to hard work. On the day in question he arrived at work before seven A. m. He immediately commenced doing heavy labor, dragging heavy limbs from the side of the road to a nearby field, digging upa heavy iron stop-sign with a concrete base and dragging this into the field, and then, with the aid of a fellow worker, he began cutting a large tree trunk with a saw. After sawing for about fifteen minutes, decedent’s companion noticed that he appeared ill and told him to rest, but decedent insisted on continuing with his work. Within a minute or so, he collapsed and died. The cause of death was disclosed by autopsy to be a “complete but temporary occlusion or blocking of the coronary artery of the heart. In entering an award of compensation Kef oree Wegner said: “The medical testimony all pointed to the fact that the occlusion was caused by an increase in blood pressure due to the laborious work which decedent was performing at the time, which increased blood pressure, acting upon an already diseased and weakened heart and arteries, caused the death as the result of an accident arising out of and in the course of the employment.”

In the Hentz case, supra, compensation was awarded because of a coronary thrombosis resulting in the death of a milk truck driver, suffering accidental heart strain in the course of and as the result of his employment while ascending hill after making milk deliveries to the place where he left his truck, though his heart had been weakened by strain of work over a long period of time. Mr. Justice Bodine, speaking for the Court of Errors and Appeals stated as follows: “The rule of law which we deem applicable to the situation was stated in Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832, as follows: “Suffice it to say that an accidental strain of a heart, even though the heart was previously weakened by disease, may be a compensable injury under our statute when as in this case, the accident arose out of and in the course of the employment.”

In the Geltman case, supra, death was found to have followed a coronary attack as the result of extreme emotional excitement ensuing from a traffic incident. The pertinent language used by Deputy Commissioner Medinets in his opinion is as follows: “The proofs in this case clearly indicate, and I so find, that but for the state of emotional strain, agitation and excitement, and the increased demand for coronary blood attendant therewith, the employe’s death would not have taken place at the. time, manner and place that it did occur. The uncontroverted medical testimony adduced by the petitioner adequately supports this conclusion. I find that the incident was the precipitating cause of the decedent’s death and produced the acute anoxemia causing a change in the anatomical structure of the decedent’s heart and extinguishing his life.”

In the Hayes case, supra, an award of compensation for 100 per cent, of total and permanent disability was granted to the workman, a janitor of the respondent church. The evidence revealed that he had a pre-existing arteriosclerotic heart but which caused no disability or discomfort. On the day in question he strained his heart muscles by lifting a heavy board in the course of his employment, precipitating a coronary thrombosis.

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In the case of Stier v. City of Derby, supra, the decedent was employed as a street foreman by the defendant gas and electric company and as supernumerary policeman by the city of Derby. It appeared that the defendant company owned an inhalator which it had long advertised as available for public use in emergencies. Decedent was one of its most efficient employes in the use of the inhalator and he had a telephone in his home which was paid for by the defendant company. He also had a key to the building in which the inhalator was kept. The inhalator was the only one available in the town and the company instructed the police department that, when emergencies arose, one of the company’s employes familiar with the inhalator should be called. The company would not permit the apparatus to be given out except in custody of one of its employes. On the day in question, decedent had just returned home after attending a ball game when he received a call from the chief of police requiring use of the inhalator at a drowning. Decedent hurried in his car, drove to the ball park for a fellow worker to help him, drove to the place where the inhalator was kept, then to the police station where he got a police car with a siren. Then he drove to the scene of the drowning as rapidly as traffic would permit, using the siren enroute. Upon arriving at the scene he seized the inhalator, which weighed about seventy pounds, lifted it out of the ear and ran down hill toward the river. Before arriving he was informed another inhalator had just arrived. He then carried the instrument back to the car. During most of the trip to the scene decedent was very nervous ánd excited, and complained of pain in his chest. Decedent became pale and covered with sweat. He was driven home but died before a doctor arrived. The cause of death was admittedly coronary occlusion or thrombosis, but medical testimony was conflicting as to whether there was a causal relation between the death and the hurried activity of the decedent immediately before his death. The compensation commissioner found that decedent’s death was the result of an accidental injury arising out of and in the course of his employment by the defendant company and made an award of compensation, but dismissed the claim as against the defendant city. In finding no error in judgment dismissing defendant company’s appeal from the award, the court held that the evidence was sufficient to sustain the award and said : “Death from this source (coronary thrombosis) if caused by unusual excitement and over exertion is an accidental injury within the compensation law.”

In Bacher v. Herschkowitz Bros., supra, the decedent was employed as foreman in the shipping department of jobbers in the “dried fruit and nuts” business. As he was helping some employes with their work, he strained himself in lifting a 110-pound bag of nuts. He immediately collapsed. He died two days later from coronary thrombosis. It appeared that such heavy lifting as occasioned the strain preceding his collapse was not part of his ordinary work. In affirming an award of compensation, the court said: “The evidence sustains the finding of accidental- injury, and the medical testimony establishes that death resulted therefrom.”

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So in the present case, 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:

That the petitioner was regularly employed by the respondent as a production manager, and that the said employment was subject to article II of the Workmen’s Compensation act.

Hj H« H* ❖ H« H«

That on March 9th, 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.

That the respondent had actual knowledge of the said accident and resulting injury on the very day of the occurrence.

That as a result of the accident and the injury sustained therein, the petitioner suffered a temporary disability from March 9th, 1939, to December 20th, 1939, inclusive, and a permanent disability of fifty per cent, of the total.

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

Hi Ht Hi ❖ ❖ Hi Hi

John J. Stahl, Deputy Commissioner.


source: Caselaw Access Project

author: Harry S. Medinets, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    DONATO CIRCELLI, PETITIONER, v. GASPER FALCO, RESPONDENT.
    Decided May 29, 1940.
    For the petitioner, Joseph C. Cassini.

    For the respondent, George E. Meredith.

   *******

Thereafter the matter came on for hearing and a compromise settlement was entered into without prejudice and without waiving any rights or defenses which the respondent had in the matter.

Subsequently, and on October 29th, 1937, a second petition was tiled alleging that the condition of the petitioner had become worse since the date of the settlement and alleging further that the petitioner’s right arm had been injured at the time of the accident. In its answer to this second petition, the respondent reiterated its denial of the happening of an accident and further alleged that the condition of the petitioner had not become worse since the previous determination and rule for judgment of this bureau.

The petitioner testified in his own behalf and also called Dr. J. M. Silverstein, Dr. Charles Reinscher, Dr. J. A. Porias and Dr. Max Kmnmel.

The respondent produced two lay witnesses and also two medical experts, Drs. Jack Blumberg and A. C. Ruoff.

While the history of the case is not a determination of the issues involved, it is of some interest in considering the entire picture of the case. Although a petition to reopen was filed on October 29th, 1937, the matter was at no time moved by the petitioner or the various attorneys who represented him during the course of these proceedings. It was only after the service of a notice in accordance with the provisions of R. S. 34:15-54 that the matter was finally brought to trial, the case having been adjourned eighteen times prior to the service of this notice.

It seems unnecessary to recite the testimony in detail. It is sufficient, in my opinion, to state the issues involved' and .my findings and conclusions based on the testimony.

■The issues presented by the evidence are:

1. Did the petitioner meet with an accident arising out of and in the course of his employment?

2. Did the accident occur in the manner and with the end result described by the petitioner and his witnesses ?

In deciding these questions, the credibility of the petitioner plays an important part. Both from the testimony and from my personal observation of the petitioner, I am not at all impressed with his credibility. Frankly, I do not believe the petitioner. That is a bold statement for a court to make and I do not often make it that emphatically. There are many reasons, however, which justify this conclusion. In the first place, the petitioner testified that he fell from a height while carrying a plank, and the plank, which he described as being sixteen feet long and twelve inches wide, fell upon him. Yet, when he was seen by the first attending physician on the date of his alleged accident, there were no visible evidences of injury to his elbow or back, the parts of his body which he claims to have hurts. It is of some significance, too, that the second attending physician who saw the petitioner five days later was unable to observe any visible signs of injury. Another fact which casts some doubt on the petitioner’s claim is the fact that his testimony is entirely uncorroborated. While others were on the job, the petitioner produced no one to substantiate his claim of injury, and two of his immediate superiors denied any knowledge or notice of the alleged happening.

I do not mean to imply that corroboration is necessary in all cases. The word of a petitioner alone, if believable, is sufficient to establish the happening of an accident; but, where corroboration is possible and the petitioner fails to produce such corroborative evidence, that fact must be considered together with the conduct of the petitioner, both following his accident and during the course of the trial. Roach v. Yellow Cab Co., 6 N. J. Mis. R. 386; 141 Atl. Rep. 767.

It is significant also that both the petitioner’s doctors and the respondent’s doctors in the case testified that the petitioner was prone to exaggerate his symptoms and complaints, which reflects badly on his credibility.

Another observation which I made during the course of trial was the petitioner’s apparent desire to impress the court with his total lack of understanding of the English language to the point that he insisted upon an interpreter in giving his testimony. I observed, however, that the petitioner on occasion gave his answers to questions propounded in English before the interpreter had an opportunity to translate the questions. Also, when the petitioner was called in rebuttal and at the suggestion of the court, his examination was carried on in English and it was obvious to me that he had a clear grasp of the questions put to him and gave prompt responsive answers. I particularly observed that the petitioner changed his seat during the course of testimony by the respondent’s witnesses so as to better hear the testimony, and liis attitude and expression led me to believe that he understood thoroughly what was going on and understood, too, the testimony given by these witnesses in English.

With these and many other examples of conflicting testimony in the petitioner’s own case, the evidence leaves me in the state of mind that I doubt that he even got hurt.

In spite of this serious doubt, I would be willing to go along on the theory that the petitioner did meet with an accident as he described, but in view of the evident insincerity of the petitioner, his medical testimony must fall of its own weight inasmuch as the doctor’s opinions were based in a large measure, if not entirely, on his subjective complaints.

During the course of argument the case of Circelli v. Falco, 17 N. J. Mis. R. 94; 5 Atl. Rep. (2d) 61, was called to my attention and it seems that the language of Deputy Commissioner Stahl in deciding that issue, which involved the same parties, is particularly pertinent and applicable to the facts presented in this trial: “I find that the weight and quality of the medical testimony presented by the respondent outweighs that of the petitioner’s medical testimony. In reaching this conclusion I do not wish to appear to be reflecting upon or criticizing the judgment or ability of the petitioner’s doctors. I feel that the petitioner by his course of action, inaccurate history and exaggeration of his complaints misled the doctors into reaching an incorrect conclusion.”

I, therefore, find, in spite of the serious doubt in my mind as to whether the petitioner did in fact meet with an accident arising out of and in the course of his employment, that he has been more than adequately compensated under the previous order of this bureau, and in all events that his disability at the present time as the result of the alleged accident does not exceed five per cent, of total permanent disability.

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

Harry S. Medinets, Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    1938 Case HACKENSACK WATER COMPANY, PETITIONER, v. BOROUGH OF HAWORTH, RESPONDENT. 1939 Case BOROUGH OF HAWORTH, PETITIONER, v. HACKENSACK WATER COMPANY, RESPONDENT.
    Decided February 4, 1941.
    For the Hackensack Water Company, Morrison, Lloyd <& Morrison (by William J. Morrison) and Milton, McNulty & Augelli (by John Milton and Joseph Keane).

    For the borough of Haworth, Hennessy ■.& Mowry (by Frank II. Hennessy).

   Quinn, President.

These appeals bring up the assessments levied by the taxing district of the borough of Haworth, for the years 1938 and 1939, on that portion of the Oradell Reservoir of the Hackensack Water Company which is situated in Haworth. The 1938 assessment was fixed at $300,000 for land, and was affirmed by the Bergen County Board of Taxation. The company’s petition before this board seeks a reduction to a valuation of $125,686. For the year 1939, the land assessment was set at $395,000, and an assessment was entered for improvements at $5,000. Upon appeal, the county board reduced the land valuation to the sum of $250,000. The improvement assessment was not disturbed, and is not in issue in these proceedings. The borough seeks to restore the land assessment for 1939 to the valuation originally fixed for. that year. The water company bears the burden of proof in the 1938 appeal, the taxing district that in the 1939 appeal.

The presumption of correctness which ordinarily attaches to judgments of county boards of taxation, upon review of local assessments, appears to conflict with the inconsistent results arrived at by the board in these cases, it being conceded by both of the parties that the condition and value of the property were the same for the two years under appeal. We shall therefore attempt to determine the true value of the property for ourselves, based upon the proof here adduced, our knowledge of the property gleaned in the appeal of the 1937 assessment in Haworth, and past appeals of other taxing districts in which parts of the reservoir are situated.

The only witness in these cases for the water company was Mr. Emile J. Flicker. He is, and has been for some time past, an executive officer of the company. He testified that the property in question consisted of 243 acres of land, most of which was under water. This area is an integral part of a reservoir situated in several taxing districts, approximating 655 acres in size, and created partly through excavation and partly through impounding by a large dam erected in Oradell. The reservoir stores water to supply the needs of the water company’s consumers, when the flow of the primary source, the Hackensack river, falls below normal. As noted above,. the acreage in Haworth is approximately one-third the total area of the reservoir under water. Mr. Fricker testified to a valuation of $134,000 for the land under appeal, basing his estimate on sales prices of other impounded reservoir lands purchased by him for the water company, and stating that he took into consideration the use which the company was making of the property, and that it was part of a going concern.

While we have high regard for Mr. Ericker’s practical qualifications for the valuation of property such as that under appeal, we must conclude that his estimate is extremely conservative. We regard the situation before us as one in which evidence of reproduction cost of the property would have more than its usual low probative weight, since the seller or purchaser of a successful and going water supply property, in a unique location, would necessarily place considerable reliance, in arriving at a fair sales price therefor, upon the cost of acquiring the land in its virgin state, and of fitting it for use as a water reservoir. Experts for the borough in this and other appeals have testified, and the company has not controverted the fact, that practically all, if not the entirety, of the flooded area of the reservoir, was dredged or excavated to increase the normal impounding capacity of the lands. What the cost of this operation upon the Haworth property was, does not appear, but a reasonable estimate could probably be more accurately made by Mr. Ericker than by any other person. The information is not given by Mr. Ericker, however, but only a final valuation for the land exceeding by only $9,000 an estimate made by a real estate expert offered by the water company in the 1937 appeal, for the value of the land as swamp land, without regard to its use as a water property. And the company concedes in its brief that the condition of the property has not changed within the past decade. A reputable witness for the borough in the present case gives a value of $140,000 for this property, considered apart from its character and use as reservoir land. Wo cannot help but conclude that Mr. Flicker’s estimate has reflected little or none of the special value attaching to this property because of the use to which it is put (Trustees of Stevens Institute v. State Board (Supreme Court, 1928), 105 N. J. L. 99; 143 Atl. Rep. 356; affirmed, 105 N. J. L. 655; 146 Atl. Rep. 919), or of the reasonable cost, depreciated, of fitting the land for the nse to which it was put upon the assessing dates. Emerson v. State Board of Tax Appeals (Supreme Court, 1928), 6 N. J. Mis. R. 326; 141 Atl. Rep. 23; Hackensack Water Co. v. Borough of Haworth, New Jersey Tax Reports, 1934-1939, p. 604. We do not mean to imply that replacement cost of this water reservoir property is controlling as to its taxable true value, but merely to indicate that that factor was given no attention by the taxpayer upon the hearing of these appeals.

On the other hand, we do not regard the proof adduced by the taxing district as sufficient to sustain its burden of proof in attacking the valuation fixed by the county board, for the year 1939, in the sum of $250,000. Newton Trust Co. v. Atwood (Supreme Court, 1908), 77 N. J. L. 141; 71 Atl. Rep. 110.

After offering a general real estate expert who' testified, as noted above, to a valuation of $140,000 for the land, were it ordinary, non-reservoir property, the borough produced a valuation engineer specializing in water utilities. We were impressed by the background of this witness, but not with his familiarity with the property under appeal, nor with certain assumptions as to the propertj’', underlying his calculations and conclusions as to value. This witness arrived at an estimate of $583,625 as the cost of adapting the Haworth lands to the purposes for which they are used, which, added to the other valuation of the property as ordinary land, of $140,554, was considered to result in a total fair value of $724,174. The witness further estimated that the operation of the reservoir as an entirety made it possible for the company to serve an additional population of such size as to yield an additional income to the company, which, capitalized at six per cent., would reflect a value apportionable to the Haworth property, of $1,500,000. This, however, was based upon gross, not net income. It is therefore not a fair approach to the issue. Nor is there any indication of how the total was apportioned to Haworth.

The estimate of replacement cost by the borough’s witness was based entirely upon an assumption of the truth of certain facts as to the extent and depth of the excavation upon the property, found by the witness in an article describing the reservoir, by a former president of the water company. These essential factors were not proven by direct testimony, and we are not at liberty', under the proofs in this case, to accept them as facts. And, although the witness based his valuation additionally upon general physical inspection of the reservoir, he was at the property upon only three ocsasions, for several hours each time. We are unable to place very great weight upon his estimates of cost, therefore, since he was not possessed of close first-hand knowledge of the quantity of dredging or excavating done upon the land, nor were his calculations connected by the borough with competent proof of such quantities.

In its argument, the borough lays great stress upon the hook value of the Oradell reservoir as an entirety, as shown by the company’s reports to the Public Utility Commission and to the Securities and Exchange Commission. These show roughly, a figure of $3,670,000, of which $3,370,000 represented the cost of fitting the land for use as a reservoir, and of the erection of the Oradell dam and other structures. Although it was admitted by the company that these figures represented book value for all purposes, not peculiarly for rate-making purposes, thereby obviating the applicability of court decisions rejecting rate-making valuations in a tax Valuation case (Woodcliff Lake v. State Board (Supreme Court, 1936), 14 N. J. Mis. R. 133; 183 Atl. Rep. 866; Hackensack Water Co. v. State Board (Supreme Court, 1939), 122 N. J. L. 596; 7 Atl. Rep. (2d) 628), nevertheless the borough fails to demonstrate that any particular part of the total book figure is appropriately apportionable to the Haworth land. The total includes the cost of the dam, all of which is situated in the borough of Oradell. This dam, with its accompanying structures, which are assessable as improvements (Hackensack Water Co. v. Borough of Woodcliff Lake, New Jersey Tax Reports, 1934-1939, p. 145), have been alone assessed for taxation by the borough of Oradell at a valuation in excess of $3,000,000. It is thus apparent that introduction of the book value of the whole reservoir has not been made probative of the true value of that portion thereof consisting of the land situated in Haworth.

In the 1937 case, we held that an assessment of $250,000 for the land was not excessive. From the proof herein, and our knowledge and inspection of this property in the past, we conclude that its true value was $250,000 for the years 1938 and 1939. The county board judgment for 1938 will therefore be modified so as to reduce the assessment of the land to $250,000, while the 1939 judgment will be affirmed in the same amount. The $5,000 assessment for improvements for 1939 will remain.

Judgments accordingly.


text:
    State Board of Tax Appeals.
    1935, 1936 and 1937 Cases CITY OF JERSEY CITY, PETITIONER, v. HARBORSIDE WAREHOUSE COMPANY, INC., RESPONDENTS. 1938 Case HARBORSIDE WAREHOUSE COMPANY, INC., PETITIONER, v. CITY OF JERSEY CITY, RESPONDENT.
    Decided January 21, 1941.

      For the city of Jersey City, James A. Hamill (by Frank P. McCarthy).

    For Harborside Warehouse Co., Inc., Wall, Haight; Carey & liar (pence (by John A. Hartpence).

   Quinn, President.

These cases were tried and argued together, since they involve assessments upon the same property, for different years. The subject-matter of the assessment is an improvement, consisting of an eight-story industrial structure located in Jersey City, adjacent to the north side of the Pennsylvania Kailroad station, designed as a warehouse and used for that purpose during the period presently under consideration and since its construction in 1930, except for a period at the outset when the operating company, was in bankruptcy. The building consists of three units. Unit 1, on the southerly end, measures 320 by 160 feet, and is constructed of reinforced concrete and structural steel framing, encased in concrete with concrete columns and brick and concrete side walls. Units 2 and 3 are pairs of eight-story industrial buildings, likewise of reinforced concrete with brick and concrete side walls and reinforced concrete columns, each in a ratio of approximately five to three, in size, as compared with Unit 1.

All three units are supported by a system of steel-jacketed concrete piles driven to rock, are heated by a central heating plant consisting of three boilers, are lighted by electricity throughout and are served throughout by fire sprinkler and fire house line systems. There is a total of twenty-eight freight and nine passenger elevators, and, there are sanitary facilities on every floor of each unit. Unit 1 incorporates a concrete roadway ramp into the building measuring 400 by 50 feet. The building is devoted principally to dry or common storage space and to a lesser extent, to cold storage and space rented for light manufacturing.

In connection with the method of proof relied upon by the taxpayer, it is important to note that the Harborside Warehouse Co., Inc., owner and operator of the building, holds only a leasehold interest in the land, the owner thereof being the Pennsylvania Kailroad Company, to which ownership the improvement will fall, under the terms of the lease, at its termination, either at the expiration of the basic term in 1975, or the renewal period in 1993.

Por each of the years presently in question the property was assessed by the taxing authorities of the city in the sum of $5.137,000, which was reduced, oil appeal, by the Hudson County Board of Taxation, to the amount of $3,000,000, for each of the years 1935, 1936 and 1937. In 1938 the taxpayer's appeal was dismissed. There appearing to be no rational explanation for the divergent results thus arrived at, there arises' an irreconcilable conflict in the presumptions of correctness which ordinarily attend determinations by the county boards of taxation. See Newton Trust Co. v. Atwood (Supreme Court, 1908), 77 N. J. L. 141; 71 Atl. Rep. 110; The Aeolian Co. v. Borough of Garwood, New Jersey Tax Reports, 1912-1934, p. 611; City of Newark v. Imperial Laundry Co., New Jersey Tax Reports, 1934-1939, p. 754.

The tax history of the property is further allegedly obscured by the facts that the judgment of this board reducing the assessment for the year 1933 from $5,137,000 to $3,000,000, was entered by consent of the city, that the city failed to appeal from a county board judgment making a like reduction in assessment for the year 1933, and by the act of the city in fixing the assessment for the year 1934 at $3,000,000, in the first instance. The history of the condition of the building, however, may furnish an explanation for the conduct of the assessing authorities. On October 1st, 1931, the construction of the improvement had reached a point of near completion, but the roof of Unit 3 was not complete on that date, nor were the main stairway from the second floor to the roof, the elevators and electrical work and glazing in Unit 3 installed. Because of the bankruptcy of the original projector of the enterprise, this condition of incompletion continued until the period of time between November, 1933, and May, 1934, when the building was completed at an additional cost of approximately $340,000. In the interim, there was considerable deterioration and damage caused by the influx of the weather through the incomplete roof. While there is no indication in the record as to the market value of the structure on the several assessing dates prior to those for the years presently under consideration, the difference in the true value of the building before and after the final expenditures for completion, may very well have been substantially in excess of the amount of such expenditures.

In any event, the tax history of this property and the proceedings thus far in the several appeals before us, present such inconsistencies and confusion that we have deemed it necessary to approach the valuation issues herein strictly upon the basis of the testimony adduced before us and a careful inspection of the property made by the board, without regard to presumptions respecting assessments and county board determinations, usually applicable.

It was stipulated that all the testimony adduced was to be deemed applicable to all four years under appeal.

The proof made by the city consisted primarily of the testimony of two construction engineers, as to the reproduction cost of the structure upon the several assessing dates. One of them approached the problem from the standpoint of cubic foot unit cost of replacement, based upon a physical inspection of the building, while the other adopted the more trustworthy method of detailed quantity and labor survey. Each allowed for depreciation and obsolescence at rates of approximately two per cent, per annum since the date of original construction in 1929. Because of rising construction costs, outweighing the effect of additional annual depreciation allowances, each of the witnesses arrived at an increasing scale of sound values for the structure for each of the tax periods before us. One, relying on cubic foot unit costs, found values ranging from $6,100,500 for 1935 to $7,226,800 for 1938. The other’s conclusions varied from $6,049,887.98 in 1935 to $7,063,742.84 in 1938. So far as reproduction costs, depreciated, may properly be taken into account as a guide to the determination of true value under the circum-' stances of this case, these figures do not appear excessive estimates of such replacement value, the witness being competent and qualified estimators whose conclusions were not rebutted by the taxpayer. The. estimates thus furnished are further corroborated by the provisions of the lease between the Pennsylvania Railroad Company, owner of the land upon which the improvement stands, and the predecessor of the taxpayer, Pennsylvania Dock and Warehouse Company, under which the lessee was obligated to erect structures described therein in terms corresponding to the buildings actually erected, calling for an expenditure of a total of $8,536,000. Nothing was olfeied by the taxpayer to indicate that the original cost of the structures was less than the sum thus specified. The book value of the building on the books of the taxpayer was shown at the hearing to be $7,350,000, which is not far out of line with the estimates of sound value arrived at by the experts for the city.

The taxpayer attacks the proof offered by the city in support of its assessments, upon the ground that it is confined exclusively to reproduction cost without regard to the selling value of the property, citing Central Railroad Co. v. State Board (Supreme Court, 1886), 49 N. J. L. 1; 7 Atl. Rep. 306; and see Turnley v. Elizabeth (Supreme Court 1908), 76 N. J. L. 42; 68 Atl. Rep. 1094; Theodore Schetty v. City of Jersey City (State Board, 1940), 18 N. J. Mis. R. 37; 11 Atl. Rep. (2d) 18. While these authorities are pertinent in this connection, it remains to be considered whether the taxpayer’s proofs are, in their turn, more accurately indicative of the true value of the structure, and whether the shortcomings of proof based upon replacement cost apply in ordinary force to the special valuation problem here presented.

Although the ultimate issue here involved was the true Value of structures, not land, the taxpayer based its case almost exclusively upon the testimony of two real estate, not building, experts, whose testimony moreover did not purport to bear upon the value of the improved parcel of realty as a whole or upon the land value, or upon any residual improvement value which might result from a deduction of the latter from the former, but was directed toward the ascertainment of a valuation of the particular enterprise housed in the building, as a business, based upon the capitalization of its ■earnings. The deficiencies of this latter type of proof in the special circumstances-presented by this case will be discussed presently. But we think it useful to point out our disagreement with the position taken by counsel for the city, representing a widespread construction by tax lawyers and officials of the ruling of this board in City of Newark v. Timer, New Jersey Tax Reports, 1912-1934, p. 587; affirmed, Newark v. Timer (Supreme Court, 1934), 12 N. J. Mis. R. 125; 170 Atl. Rep. 37, to the effect that no testimony whatsoever may be received from real estate experts, as distinguished from construction or building experts, in an appeal of improvement valuations alone, as in the present case.

We have heretofore recently stressed the view that the statutes of this state respecting the assessment of real property for taxation make selling or market price of parcels of realty, consisting of land together with such improvements as are situate thereon as a unit, the guiding criterion for the determination of the true or assessable value thereof. The Colonial Life Insurance Company of America v. City of Jersey City (State Board, 1940), 18 N. J. Mis. R. 60; 11 Atl. Rep. (2d) 14; Theodore Schetty v. City of Jersey City, supra. The further statutory requirement that the assessors separate land and improvement valuations in making up their lists was seen not to be inconsistet with the paramount requirement of determining the selling value of every improved parcel, as a unit, in fixing the assessment, since buildings have no real sales value apart from the land upon which situate. Id. It should therefore be apparent that in an appeal on improvements alone, while testimony as to reconstruction cost is always competent, and sometimes of considerable probative weight, the most cogent evidence of the true value of the improvement from the standpoint of its effect upon the selling value of the parcel as a unit, that being determinative under the statute, would under ordinary circumstances be proof of the extent to which the presence of the improvement on the plot has increased the selling value of the entire parcel over the selling or market value of the land, were it vacant. See Bonbright, Valuation of Property 485; Tremont and Suffolk Mills v. Lowell, 163 Mass. 283; 39 N. E. Rep. 1028. This can best be established through the testimony of a competent real estate expert, making the valuation of the improvement residual, after proof of the value of the whole parcel, and then of the land alone.

The Timer case, supra, properly understood, is not to the contrary. In .that case, after an appeal by a taxpayer to a county board of taxation from an assessment upon improve-merits only, and a reduction granted thereupon by such board, the taxing district appealed to this board, praying for restoration of the assessment as made. Upon the hearing, counsel for the taxing district sought to adduce the testimony of a real estate expert as to the value of the land and building as a unit, for the purpose of showing the land to be under-assessed. An objection to the question was sustained, it being apparent, as explained in the opinion of the board, supra, that the design of the petitioner was to change the issue from that raised by the petition of appeal, i. e., the value of the improvement alone, the assessed value of the land not being under appeal, to a question of the value of land and building, and to justify the original valuation of the improvements, by establishing that the assessment of the entire parcel was not in excess of the true value thereof. The affirmance by the Supreme Court, supra, of the ruling of this board in that case was based upon the same fundamental concept, that in an appeal concerning an assessment upon improvements, the ultimate issue may not be expanded to embrace the valuation of the land.

Proof of the character suggested hereinabove, however, would clearly not constitute a departure from the single ultimate issue as to the true value of the improvements. Interrogation of the real estate expert as to the value of the property as an entirety would be merely intermediate to the development of the value of the improvements as residual, after deduction of the land value.

But, as already noted, the taxpayer herein offered no proof intended or calculated to be directed to the selling value, as between a willing buyer and seller by fair contract at private sale, either of the parcel as an entirety or of the land alone. Nor was there any attempt to show, even by capitalization of income, the value of the improvement to a fee owner thereof. The conception avowedly held by its witnesses of the issue herein, was that of the value of the particular business enterprise housed in the improvement, based upon capitalization of net income, but charging against earnings a deduction for a sinking fund to recapture the value of the building during the term of leasehold, because of the reversion of the buildings to the lessor at the termination of the lease, as well as a deduction for rent paid to the landlord. The value thus arrived at for the improvement was $3,100,000. In other words, this valuation was that of the leasehold fo the business tenanting the building. This approach 'fundamentally misconceives the theory of valuation for property taxation under our statutes. The taxing districts are entitled to hold every parcel of realty accountable for taxes in its full true value to a fee owner, and in the amount for which the property could- be sold by fair sale, unfettered by leases or other restrictions created by private contract. See Becker v. Little Ferry (Supreme Court, 1940), 125 N. J. L. 141; 14 Atl. Rep. (2d) 493. And it does not matter that the assessment was levied against a named taxpayer holding less than a fee interest in the property. Id. (at p. 144).

Aside from the vitiating effect of its treatment of the lease factor, upon the conclusions for which the taxpayer contends, we must regard with circumspection the use in any valuation methodology, of the net income of the particular business here housed in the improvement. The customary approval of .the use of income as a factor in valuation is based upon the relative stability of rentals produced by ordinary income producing property, such as stores, apartments, &c. But where income is subject to a substantial extent in a particular case to the factor of effectiveness of management, as in the present case, the reliability of the net income factor for valuation purposes is sharply reduced. Low or no net income of a business because of poor management is no more an index of true value of realty than spectacular profits resulting from managerial perspicacity. The capitalized earnings of a business, in short, as distinguished from the normal rental yield of real estate, measure what the business enterprise is worth, and not what the realty housing the business is worth. Bonbright, op. cit., supra, p. 491.

And in the present case the income yield shown by the books of the taxpayer may very well be subject to qualification, because of the status of the taxpayer as a wholly owned and controlled subsidiary of the Pennsylvania Bailroad, owner of the land. There is evidence in the record of unwillingness of the taxpayer at times to accept certain business which might have reduced the extent of its vacancies and increased its net income. We are not entirely satisfied that its policies in this connection were not dictated by the interests of the railroad, rather than by those which would motivate an entirely independent warehouse company. Furthermore, there is evidence in the record of the use by the railroad of valuable space in, and connecting facilities of the building without any consideration paid therefor to the warehouse company, other than the allowance of a credit in the determination of the land rental. But, as seen above, the rent paid by the warehouse to the railroad was an improper charge against gross earnings for purposes of valuation of the improvement in the first instance. Therefore the failure of the taxpayer to have received and entered as a rceipt the value of the special facilities granted to the railroad militates further against the validity of the capitalization of earnings approach employed by its experts.

Evidence was introduced by the taxpayer showing a cycle of declining warehouse operations generally in the metropolitan area since the construction of the building, and this proof has been taken into account in our conclusions, as bearing upon the issue as to whether a prudent operator would have undertaken to reproduce this building as of the several assessing dates for the cost which the city’s witnesses satisfactorily showed would be involved 'in such replacement.

And finally, we have given some weight to the fact that taxpayer’s books show that the building is carried therein at a value of $7,350,000, in view of the importance which the Supreme Court has attached to book values for tax valuation purposes. Second National Bank and Trust Company of Red Bank v. State Board of Tax Appeals (Supreme Court, 1935), 114 N. J. L. 573; 178 Atl. Rep. 96; General Motors Corp. v. State Board of Tax Appeals (Supreme Court, 1940), 124 N. J. L. 212; 11 Atl. Rep. (2d) 314.

A review of the foregoing will indicate that the best proof, i. e., competent estimates of the sales value of the improvement in its relationship to the parcel of realty of which it is an integral component, is absent in this ease. We have therefore considered such other proof as was introduced for whatever weight it might have upon the statutory issue of true value, and made our own inspection of the property. Upon the basis thereof we are of the opinion that the property had a true value of $5,000,000 as of each of the assessing dates herein involved, and the assessments will be ordered fixed in said sum.

Judgment accordingly.


text:
    State Board of Tax Appeals.
    MT. OLIVET BAPTIST CHURCH, PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided March 4, 1941.
    For the petitioner, David Silver.

    For the respondent, James F. X. O'Brien (by Vincent J. Gasale).

   Quinn, President.

Petitioner is the owner of vacant lots, upon which it conducts open air religious services. It seeks exemption for the property under R. S. 54:4-3.6, for the year 1939, as used for religious purposes. The statute, however, exempts .only buildings used for such- purposes,'together with the tract of land upon which same may be erected, to the extent of five acres. It does not exempt land without buildings. Anchor Lodge, No. 218, I. O. O. F., v. Borough of Atlantic Highlands, New Jersey Tax Reports, 1912-1934, p. 33; First M. E. Church of Red Bank v. Borough of Red Bank, Id., p. 742. The application for exemption must therefore be denied.


author: Jayne, C. C. J.

text:
    JOSEPH PULITZER, PLAINTIFF, v. MARTIN S. RIBSAM AND SONS COMPANY, DEFENDANT.
    Decided March 17, 1941.
    For the plaintiff, James Mercer Davis, Jr.

    For the defendant, Powell & Ptwicer.

   Jayne, C. C. J.

“Ill blows the wind that profits nobody.” The jury exonerated the defendant. It is asserted, however, on behalf of the plaintiff that the frost ridden gales of a savage March refrigerated the jury room and took captive the restless and distracted minds of the jurors. “Lion like March coxneth in, hoarse, with tempestuous breath.” It may be inferred from the proof submitted that as the jurors rendered their verdict “coldness dwelt within their hearts and a cloud of wrath was on their brows.” Ushered from the hospitable warmth of the court room to the unsociable chill of the jury chamber, had been their sudden experience. Milton envisaged such a destiny in Paradise Lost:

“From beds of raging fire to starve in ice
Their soft, ethereal warmth, and there to pine
Immovable, infix’d, and frozen round,
Periods of time; thence hurried back to fire.”

The plaintiff seeks the allowance of a rule to show cause why a verdict fabricated in such vexatious circumstances should not be annulled. Assuredly the defendant was not at fault. .Neither should'the venerable and time-worn old court house remain undefended. Erected at Mount Holly in Í796 it is a priceless treasure of Burlington county. Unpretentious, it is nevertheless majestic. During nearly a century and a half its walls have gazed upon many memorable scenes. Within its doors, eminent jurists have presided, distinguished lawyers have debated, innocent prisoners have been liberated, felons have been condemned to death and the rights of thousands of citizens have been determined. Although now clothed with some modern garments which perhaps do not fit, its history and traditions remain and it is not yet to be presumed that it has outlived its usefulness in the administration of truth and justice.

It is suggested that the jury cogitated the weather rather than the controversial issues of the case.. As Cowper said, “Winter is the cruel ruler of the inverted year.” True, the weather habitually trespasses upon the thoughts of all of us almost daily, yet it is seldom a complete encroachment.

A general verdict is doubtless the merger of a variety of ideas, reflections and sentiments; a compound in which only the omniscient could identify the component parts and accurately ascribe to each its relative influence in generating the ultimate product. No one but the jurors can tell what was put into it and the jurors are not permitted to say. Lindauer v. Teeter, 41 N. J. L. 255; Peters v. Fogarty, 55 Id. 386; 26 Atl. Rep. 855; Queen v. Jennings, 93 N. J. L. 353; 108 Atl. Rep. 379; Bragg v. King, 104 N. J. L. 4; 139 Atl. Rep. 884; Marconi v. MacElliott, 8 N. J. Mis. R. 69; 148 Atl. Rep. 392. The closing scene of the trial is played behind the curtain. In practice, we first confront the verdict and consider its consistency with evidence which the jury may have reasonably deemed credible and trustworthy. If the verdict is manifestly discordant with the weight of the credible evidence, the effectiveness of some improper influences may then be logically inferred. The power to grant a new trial is essentially remedial. Bowen v. Healy’s, Inc., 16 N. J. Mis. R. 113. Where, after a thoughtful and deliberate review of the evidence it appears that the conclusion of the jury was legitimate and just, there is no occasion to surmise that it was the product of either the heat of passion or the chill of indifference.

Here, the affidavit reveals that the jurors embarked upon their deliberations at two-forty-five p. M. and at five-thirty p. m. some of them complained to the attending officer that the jury room was intolerably cold. An half hour thereafter elapsed before they announced their verdict. Whether the “heat was put on them” promptly is not divulged. However, it can not be supposed that throughout this span of time the jurors were unable to discuss and consider the issues of the case. Moreover, all the jurors, without protest, expressly assented to the verdict at the time it was rendered.

An application based upon a similar ground was denied in Woods v. Klein, 72 Atl. Rep. (Pa.) 523.

The verdict in the present case is abundantly supported by the evidence. Justice does not reasonably require its disturbance.

Application denied.


author: Rosecrans, C. P. J.

text:
    Warren County Orphans Court.
    IN THE MATTER OF THE ESTATE OF MARSHALL COOL, DECEASED.
    Decided March 12, 1941.
    Por the petitioner, Claude E. Cooh.

   Rosecrans, C. P. J.

The petitioner as executor has presented his account for confirmation and allowance, and proof has been submitted that due notice of settlement has-been given to the several interested parties of both sexes in conformity with the statute and rule. No appearance was made either personally or by proctor by any of the interested parties except the petitioner. Nor did the petitioner file an affidavit relative to the military service of the interested parties pursuant to the Soldiers’ and Sailors’ Civil Relief act of 1940. October 17th, 1940, chapter 888, section 1, 54 Stat. p. 1178. (See U. S. C. A., Tit. 50 App. § 501, pam. February, 1941.) The applicability of this federal legislation to proceedings in the Orphans Court is the question.

The act of 1940 closely follows the wording of an earlier act passed in 1918. Synopses of cases in which judicial construction was given the act of 1918 are collected in U. S. C. A. Tit. 50, p. 178, &c., but no cited case bears upon this question. See, also, 130 A. L. R. 774 anno. The helpful “Manual of Law” compiled by the Committee on National Defense of the American Bar Association discloses no precedent and Mr. Joseph H. Edgar, chairman of the Committee on National Defense of the New Jersey State Bar Association, acting as he does as an agency for clearing information with respect to the application of the act, has found the practice far from uniform. This matter affords opportunity to assemble the authorities and state the course which it seems should be followed.

By section 100, one purpose of the act in question is,

'Tor the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service.”

Article II — General Belief, section 200 (1) provides in its first sentence as follows:

“In any action or jiroeeeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service.”

Is an interested party in the Orphans Court embraced within the meaning of the word “defendant” and does the petitioner have the status of a “plaintiff?” The authorities hold that a plaintiff is a person asking any relief by any form of proceeding (48 C. J. 1218) and that the term “defendant” includes any other party as distinguished from the plaintiff or complaining party, and means anyone who is a necessary party to a complete determination of the action (18 C. J. 459); Cf. rules of the Court of Chancery of New Jersey, No. 6; section 100, English Judicature act, 1873. Mr. Justice Holmes, in Mason City, &c., v. Boynton, 204 U. S. 570; 51 L. Ed. 629, construed the word “defendant” to include the land owner in a condemnation proceeding, he stating:

“And it is obvious that the word 'defendant5 as there used is directed toward more important matters than the burden of proof or the right to open and close. * * * In condemnation proceedings the words 'plaintiff5 and 'defendant5 can be used only in an uncommon and liberal sense. The plaintiff complains of nothing. The defendant denies no past or threatened wrong. Both parties are actors: one to acquire title the other to get as large pay as he can.”

The definition of a “judgment” as a final determination of the rights of parties includes decrees of equity and probate courts. 30 Am. Jur. 822, tit. “Judgments", § 3. Since the federal act is for the purpose of protecting the rights of persons in military service and any judgment affecting the rights of such persons may be opened, stayed or vacated, a liberal construction should be accorded so that in probate court proceedings in default of any appearance by an interested party, either male or female, an affidavit as to military service should be filed or other action taken in accordance with the federal act. Only in that way will decrees import that finality to which all parties are entitled.

The required affidavit should as nearly as practical be made contemporaneously with the making and entry of the decree and set forth facts relating to the military service of the party as of the day of the judgment. Parenthetically, the decree should contain a recital as to the method of compliance with the act.

Consideration of the meaning of the phrase “any appearance” is sometimes required. The 1918 act used the words “an appearance” but in the 1940 act the phrase was broadened to read “my appearance.” The word “appearance is defined in Webster’s New International Dictionary (2d ed.) 1940, as meaning in law, “the coming into court of a party summoned in an action either by himself or by his attorney.” Technically there are several different kinds and methods of appearance. See Am. Jur. Appearances, § 1, &c. A default of any appearance by the defendant means a default in any one of several ways of making an appearance. “ 'Any’ applies to every individual part without distinction.” Styles v. Freeholders of Union, 50 N. J. L. 9, 11. A party’s conduct as well as other circumstances are to be considered in determining whether he has actually appeared.

The federal act further provides that under certain circumstances the court may appoint an attorney to represent a party entitled to relief and may make such other and further order as may be necessary to protect the rights of such party under the act. Section 200 (1) and (3). An appointment should be made whenever question arises, so that the rights of all parties may be protected. Ordinarily the services rendered by proctor and counsel so appointed are to be regarded as a patriotic duty for which no compensation would be expected by members of a profession deeply imbued by a sense of public responsibility. Certainly not as against a party in military service. However, in cases in which allowances are commonly made according to the usual probate practice, there seems no good reason why reasonable compensation should not be awarded. In equity practice counsel fees may be allowed independent of statutory authority “when the fund is in control of the court and is being there administered.” * Shaffer v. Shaffer, 129 N. J. Eq. 42, 44; 17 Atl. Rep. (2d) 780. It is recognized that “our probate practice is essentially equitable in character.” *In re Kellner, 121 N. J. Eq. 243, 247; 181 Atl. Rep. 91. And “the Orphans Court, within the sphere of its jurisdiction, is a court of equity.” In re Lonergan’s Estate, 303 Pa. 142; 154 Atl. Rep. 387. Some conflict of opinion prevails as to the extent of the statutory authority to allow counsel fees in the Orphans Court in other than will contests, but for a lucid analysis of the statute (R. S. 2:31-86) see the opinion of Vice-Ordinary Sooy, In re Loudenslager, 113 N. J. Eq. 418; 164 Atl. Rep. 426.

This matter will be held in abeyance pending compliance with the federal act in accordance with the views herein expressed.


author: Weber, C. P. J.

text:
    Bergen County Court of Common Pleas.
    HENRY USCIENSKI, PETITIONER-APPELLANT, v. NATIONAL SUGAR REFINING CO., SUCCESSOR TO WARNER SUGAR REFINING CO., RESPONDENT-APPELLEE.
    Decided February 17, 1941.
    Bor the petitioner-appellant, Nicholas A. Carella.

    Bor the respondent-appellee, McCarter, English ,& Egner.

   Weber, C. P. J.

One Bronislaw Uscienski was employed by the Warner Sugar Befining Company, now known as the National Sugar Befining Company, at its Edgewater plant and, on January 29th, 1918, while so employed, was injured as the result of an accident which arose out of and in the course of his employment. As a result of said injury, the employe died on Bebruary 4th, 1918, leaving him surviving his widow and an infant son, who was then five weeks old. The employer paid compensation payments to the -widow for a period of approximately three hundred (300) weeks. After the son, the petitioner herein, became of age, he filed this claim for compensation under the Workmen’s Compensation act.

At a hearing, before one of the deputy commissioners of the Compensation Bureau of this state, the petition was dismissed, because of the following reasons specified in the order of the deputy commissioner:

“It was not filed with the bureau within two years after the date on which the accident,' alleged in the petition, occurred or within two years after the failure of the respondent io make payment pursuant to the terms of any agreement, or within two years after the last payment of any compensation and that the claim for compensation on account of the death of the employe, as alleged in the.petition, was barred by reason of the failure to file the petition within the time required by law.”

Idle Workmen’s Compensation act of 1911, as amended by the laws of 1913, was, at the time of the happening of the accident, in full force and effect and any remedies and rights, which the petitioner herein may have, must be based upon the law as it was in effect at the time of the happening of the accident. The 1911 act, as amended by the 1913 act, provides:

“In case of personal injury or death, all claims for compensation on account thereof, shall be forever barred, unless within one year after the accident the parties shall have agreed upon the compensation payable under this act, or unless within one year after the accident, one of the parties shall have filed a petition for adjudication of compensation as provided herein.”

The same act further provides:

“An agreement or award for compensation may be modified at any time by a subsequent agreement, or at any time after one year from the time when the same became operative, it may be reviewed upon the application of either party on the ground that the incapacity of the injured has subsequently increased or diminished.”

The petitioner claims, first, that he was an infant at the time of the injury to his father; that he was under such disability that he was unable to protect his rights; and, that the statute of limitation, provided by the act, did not run against him during the period of his infancy. And, he further contends, that inasmuch as the respondent paid to his mother compensation for a period of approximately three hundred (300) weeks, such payment, under, the provisions of the 1913 act, removed any and all limitation of time upon the filing of a petition by the petitioner.

The term “limitation” has been defined to mean “The time which is prescribed by authority of the law, at the end of which, no action at law or suit in equity can be maintained.” By the common law there was no fixed time for the bringing of actions. Limitations are creatures of statute 'and derive their authority from statutes. “The exemptions from the operation of statutes of limitations commonly granted to infants do not rest upon any fundamental doctrine of the law, but upon the legislative will expressed in the statutes; infants could be put upon the same footing as adults in this respect, and unless excepted they so stand.” 37 Corp. Jur. 1018, § 423. “No exception can be claimed in favor of minors in a statutory provision limiting the time for commencing actions given by such statute, unless they are expressly mentioned by the statute as excepted. Thus a statute which contains a saving clause in favor of infants fin any of the personal actions before mentioned’ applies only to actions mentioned in such statutes. And where requirement as to time is a condition to the existence of liability in -a statute making no exception, infancy is no excuse for noncompliance with the requirement.” 37 Corp. Jur. 1021, § 424.

In Gelewski v. Cudile, 17 N. J. Mis. R. (at p. 49); 4 Atl. Rep. (2d) 9, the referee decided that the Compensation act is in derogation of the common law, and that all such statutes must be strictly construed. He further said that in the Compensation act there is a provision for the prosecution of a minor’s claim by a next friend or other representative; that the act provides that petitions for claims shall be filed within two years of the date of the alleged accident or the date of the last payment made by agreement; and, that as the petition in that case was filed on October 27th, 1938, for injuries sustained on February 9th, 1936, and, that as no payment has been made by the respondents, the petition should be dismissed.

Our Court of Errors and Appeals, in Gillette v. Delaware, Lackawanna and Western Railroad Co., 91 N. J. L. 220; 102 Atl. Rep. 673, decided that under the Federal Employers’ Liability act of 1908, suits for injuries must be begun within two years after the day when the cause of action accrued and, therefore, held that infancy was no excuse for failing to bring suit within two years after the injury was sustained. Mr. Justice Parker (at p. 221) said :

“Our statute of limitations contains a provision that infants entitled to any of the actions previously specified in that act shall have the respective periods of limitation after majority in which to bring suit. This, however, is on its face inapplicable to the federal act, which, as we have already said, lays down the conditions under which suits may be brought under it.”

In Bankers’ Trust Company of Detroit v. Tatti et al., 242 N. W. Rep. 777, the Supreme Court of Michigan held, that, as the statute (Workmen’s Compensation act) contained no exception in the ease of minors or persons under any physical or mental incapacity, in the case of dependents, as to the time within which claims on their behalf should be filed, such claims would be barred unless filed within the period provided by the statute.

“Where no exception is provided by statute, the requirement for the filing of a claim within a specified time applies to a minor dependent of an employe, whose failure to comply with the act precludes him from recovery.” 17 Corp. Jur. 1025, § 799.

In this connection, it is significant to note that the statutes of limitations in force in this state each contain an exception as to the period of infancy and that there is no such exception contained within the Workmen’s Compensation statute as it existed in the year 1917 and as it now exists.

In the case of Pike v. Delaware, Lackawanna and Western Railroad Co., 31 N. J. L. J. 81, the question was there raised as to whether or not there was any exception in effect extending the period of limitation in favor of an infant where the statute failed to provide any such exception. On page 83, the court said: “As the statute contains no exceptions, the court cannot import them into it.”

The case of Balsh v. Phineas Jones Co., 44 N. J. L. J. 208, is cited by petitioner as sustaining his position. In that case, the deputy commissioner decided that the operation of the statute of limitations incorporated within the Workmen’s Compensation act was suspended during a period of incompetency of the workman. While this case seems to sustain the contention of the petitioner, its holding is contrary to the provision of the Workmen’s Compensation act, the decision of our courts and the general rule that exceptions from the operation of the statute of limitations, by reason of infancy or incompetency, can only be created by statute.

The petitioner further contends that, if the petitioner’s claim was barred by reason of the fact that the petition was not filed within the period of one year after the happening of the accident, the statute of limitations does not apply because of the compensation payments made by the respondent to decedent’s widow, which payments, it is alleged, were made for a period of approximately three hundred (300) weeks. He further contends that the making of payments by the respondent was an agreement to pay compensation and that, therefore, the operation of the statute of limitations was, by the wording of the 1913 act, indefinitely suspended.

The respondent contends that the making of the payments was not an agreement to pay compensation and, further, that if the making of such payments did constitute making an agreement to pay compensation to the widow, such agreement was made with a person other than the petitioner and that, therefore, the petitioner herein cannot ask to have the matter reviewed.

The petition filed herein alleges no agreement, whatsoever. It states, in answer to Question 8, that compensation was paid; that the petitioner received no compensation from the employer and that the employer did not agree to pay to the petitioner any compensation and nothing further is alleged or submitted by way of proof, of any kind, that any agreement was ever made by the employer and the employe’s widow, either on her own behalf, or on behalf of herself and the petitioner herein. T have, therefore, before me only a petition which appears to be an original application and which does not, in any respect, allege, or show, that it is in the nature of one reviewing the alleged agreement.

The petitioner cites Wright v. Smith, 38 N. J. L. J. 231, as a case where the court decided -that the entry into of an agreement removed the bar of the statute. The facts, however, in that case were decidedly different from the instant case. There, the petitioner contended that the parties had agreed upon compensation payable under the act and the testimony was to the effect that the employer stated to decedent and to petitioner that he would do all he could for decedent and petitioner; that he would pay all her husband’s money until he was able to go to work; that, at the funeral, he said he would do anything he could. Furthermore, the agreement, if any, was made by the widow with the employer rather than by anyone on behalf of the petitioner.

In Breen Iron Works v. Richardson, 115 N. J. L. 305, the court dismissed a petition in the case where the person was injured on March 9th, 1931; filed a petition on May 9th, 1931; and, on October 3d, 1931, procured an order directing payment of compensation and where a new petition was filed by his widow on August 2d, 1933, claiming for the husband’s death by reason of the accident which occurred on May 9th, 1931. In that case, the court decided that the filing of the wife’s petition was the institution of a new proceeding and therefore did not come within the exception providing for a review because of increased disability.

Lusczy v. Seaboard By-Products Co., 101 N. J. L. 170; 127 Atl. Rep. 212, was a case in which compensation was paid to an employe for temporary disability which was alleged to be an agreement for compensation; that, thereafter, the employe died and the widow filed a petition on October 2d, 1923, approximately two years after the occurrence of the accident. On page 173, the court said:

“The respondent’s argument is that the payment of the compensation in November, 1921, for temporary disability, constituted an agreement between Lusczy and the By-Products Company to pay compensation; that the petition filed by the widow is an application to review such agreement; that a petition'of this nature can be filed at any time and is not subject to the statutory limitation stated in section 23(h). We think this contention unsound. The statutory provision is that the agreement can only be reviewed upon the application of a party to it. The agreement to pay compensation was an agreement to which only Lusczy and the By-Products Company were parties. The widow, who is the petitioner in this case, was not a party to the agreement. Any rights which she may have had for compensation for the death of her husband are rights which flow directly from the statute. ■ They are not rights to which she succeeds as the representative of her husband. The petitioner in this case, was not, in our opinion, a party to the agreement, and so is not in a position which entitles her to have it reviewed.”

The statute provided that actions were barred, unless, within one year after the accident, the parties shall have agreed upon the compensation payable under this act, which statute, presupposes that an agreement had been entered into providing for the payment of the compensation, in an amount as provided for by law. If, therefore, as in this case, there is no allegation or proof of any agreement, the bar of the statute cannot be considered as having been removed.

In view of the foregoing, the judgment, heretofore entered by the bureau, is affirmed.