text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JENNIE J. HEFFERN, PETITIONER, v. WOBURN DEGREAS-ING COMPANY, RESPONDENT.
    Por the petitioner, John L. Ridley.

    Por the respondent, Richard TP. Balcer.

   At that time it was stipulated and agreed between the parties that the facts in the case were as follows: That Martin J. Heffern was employed by the respondent, the Woburn Degreasing Company, on January 25th, 1928, and that he had been employed by said respondent for several j’ears past; that his wages were $51 per week; that on the day in question he left the place of his employment around noon and went to his home for lunch; that on said journey he had no errand to perform for the respondent. He drove his own car, a Dodge touring car, which had been parked at the plant. Upon returning and as he was about to turn into the driveway of the plant, in fact, his car -was partially in said driveway, the sidewalk extending to the driveway and curb and there is a center sidewalk of approximately six to eight feet wide, when, in that position, his car was hit on the left rear door by a Public Service bus. The petitioner’s car was thrown against the laboratory building which is located on the corner, six to eight feet from the curb. The accident resulted in the death of the said Martin J. Heffern on January 30th, 1928. Said Martin J. Heffern left the dependents upon him alleged in the petition.

It was further stipulated and agreed that the only question at issue is whether the accident arose out of and in the course of his employment and it was further stipulated that frequently during his noon hour when he went home to lunch he went on errands for his employer, but on this particular day he had no errand to perform.

On the stipulation as to facts given above it was agreed to submit the case on briefs and briefs were submitted both on behalf of the petitioner and the respondent.

After carefully reviewing the facts as stipulated in this case and after reading the briefs submitted in the matter, I have come to the conclusion that under the terms of the Workmen’s Compensation law of this state as set forth in the leading case of Bryant v. Fissel, 84 N. J. L. 72, the deceased did not meet with an injury by accident arising out of and in the course of his employment. I find that the deceased took himself out of the course of his employment when he went home for lunch in his own car and he had not placed himself in the position to resume work at the time of the accident and therefore he was not in the course of his employment at the time of the accident.

I further find that the accident, as well as not arising in the course of the employment, did not arise out of the employment as the employment did not require the petitioner to use his personal car to return to the place of employment after going to his own home for lunch, and therefore I find that the accident did not arise out of the employment.

Accordingly, I hereby order that the ease be dismissed without cost to either party.

Charles E. Corbin-, Deputy Commissioner.


source: Caselaw Access Project

author: Harry J. Goas, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CATHERINE DELTZ, PETITIONER, v. WESTON ELECTRIC COMPANY, RESPONDENT.
   A petition having been filed in the above proceedings praying for determination of compensation dne to the petitioner and other dependents under an act of the legislature of the State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts amendatory thereof and supplemental thereto, and the matter coming on to be heard before me on July 9th, 1928, in the presence of David Roskein, Esquire, solicitor for the petitioner, and Clarence B. Grippett, solicitor for the respondent, and having heard all the testimony, I hereby determine and find as follows :

1. On or about the 12th day of July, 1927, the petitioner, Ernest Deltz, was employed by the respondent herein in the manufacture of electric instruments and was employed as a solderer at a weekly wage of $25.95, and having commenced said, employment on or about February 17th, 1926, continued working as such for the said respondent until May 24th, 1927, when he was compelled to cease work until about July 9th, when he returned to his work and was then employed until July 12th, the last day of his employment with the said respondent.

2. From the medical and lay witnesses in the case it appears that the petitioner was working in good surroundings as far as the accessibility of light and air were concerned. The petitioner prior to coming to work for the said respondent had been employed in work other than that involving load and had been employed for the said respondent as a solderer in which he used a composition which was composed of tin and lead. His work consisted of soldering and uniting pieces of metal which he did at an average of approximately two thousand four hundred pieces per day. The testimony of the witnesses of both the petitioner and respondent is to the effect that the deceased was a man of frail nature, pale and of sallow complexion; that about May 24th, 1927, suffered from a nephritis affecting his kidney, and on July 30th, 1927, the said Ernest Deltz died. It also appears from the testimony that the petitioner was constantly handling this composition of lead solder in the way and manner used in the work of the petitioner, and that the same was being absorbed continually by the petitioner, which said lead was the exascerbated cause superimposed on the nephritis and otherwise weak condition that culminated and caused the death o£ the deceased.

3. Prom the medical testimony in this case it appears that the absorption into the body of small deposits of load over a period of time will raise havoc with a previously diseased kidney. Erom the testimony of Dr. Griffiths, who originally diagnosed the ease as one of lead poisoning, and from the physical signs which he found present, from the testimony of the lay witnesses for the petitioner and the hospital diagnosis and prognosis, and the witnesses of the respondent, and from all the testimony in the case the conclusion to be reached is that the absorption of these small deposits of lead with which this petitioner was constantly employed, superimposed on the frail nature and condition of the deceased resulted in his death.

4. At the time of the death of the deceased he was earning $25.95 per week and he left surviving a widow, Catherine Deltz, who is entitled to receive compensation, and two children, minor dependents upon the said decedent, Ernest Deltz and Thomas Deltz, who were born August 15th, 1923, and January 7th, 1925, respectively, who are entitled to receive compensation until they reach their eighteenth birthday as follows :

Catherine Deltz, widow, three hundred weeks, from 7/30/27 to 5/7/33, at fortjr-five per cent, of weekly wages, $11.68, $3,504; Ernest Deltz, son, born August 15th, 1923, three hundred and twenty-six weeks, from 5/7/33 to 8/15/39, at forty per cent, of weekly wages, $10.38, $3,383.88; Thomas Deltz, son, born Januarjr 7th, 1925, seventjr-two and three-sevenths weeks, from 8/15/39 to 1/7/41, at thirty-five per cent, of weekly wages, $9.08) $657.66; total, $7,545.54.

5. It is further ordered that the respondent shall pay on behalf of the counsel fee of the petitioner such sum as shall .be fixed on application to the compensation board on Monday, September 10th, 1928, to David Eoskein, Esquire, for services rendered by the said David Eoskein, Esquire, in preparation and trial of this case.

6. It is further ordered that respondent shall pay to Catherine Deltz the sum of $150 as funeral expenses, immediately upon the signing of this order.

7. It is further ordered that the respondent shall pay the medical expenses incurred by the petitioner in the trial of the said case the sum of $100 immediately upon the signing of this order, and shall pay the stenographer fees incurred herein.

8. It is further ordered that the expenses, counsel fee and weekly payments from July 30th, 1927, to the date of the signing of this order shall be due and owing and paid immediately upon the signing of this order, balance of payments to be made weekly as hereinabove set forth and in accordance with the terms and provisions of the Compensation act of New Jersey.

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbih, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANDREW KAPALO, PETITIONER, v. THREE STAR CAP COMPANY, RESPONDENT.
    Por the petitioner, Richard F. Potter.

    For the respondent, Carl S. Kuebler, of McDermott, En-right. & Carpenter.

   íjt $ í|í ^ i

I listened to the testimony carefully and I do find that on September 10th, 1927, between the hours of three and four p. it. the petitioner, while carrying a roll of cloth, slipped and fell; that he had a pain in his stomach; that he sat down and rested for fifteen or twenty minutes and after-wards was taken home. He testified that the following afternoon, Sunday, September 11th, his father called in a physician, Dr. Guttman, who came about three-thirty o’clock and examined him and prescribed medicine. He was confronted with a signed statement by the defense which ho admitted that he signed. He was not sure, however, whether the statement had been read to him before he signed it, and he denied the statement contained therein that Dr. Guttman called at seven p. it. The statement was marked for identification. He testified that the doctor returned Monday morning, found a lump on his right side and advised an operation, and that he went to the hospital and was operated on that day by Dr. Clarke, returning to work six weeks thereafter.

The petitioner was specifically asked by his attorney whether he saw or felt anything wrong with his stomach, and he said that he did not; that it hurt him terribfy but that there was nothing outside that he conld see until Monday morning, when he felt a lump come out on his right side.

His foreman was called and testified as to the assistance which he gave Mr. Kapalo. He saw Mr. Kapalo sign the statement, but was not present and did not know whether it was read to him or not.

Dr. Guttman ivas called and testified that he came sometime Sunday afternoon and that his best recollection was that he got there about three-thirty o’clock; that the petitioner was complaining of abdominal pain and vomiting; that he did not ascertain just what the trouble was at that time, but prescribed medicine; that he examined his abdomen but found no visible evidence; that he returned the following morning, found a small hernia on his right side and recommended immediate operation.

At the close of his testimony, respondent moved to dismiss the petition, because the descent of the hernia did not immediately follow the cause, because there was no prostration, because the attendance of a licensed physician was not required within twenty-four hours after the occurrence of the hernia.

After considering the testimony carefully, I do find that the descent of the hernia did not immediately follow the cause and do therefore find that the petition should be dismissed.

* i\t * * * * *

Charles E. Corbih, Deputy Commissioner.


author: Pee Ctieiam.

text:
    NORMAN POTTLE, PLAINTIFF, v. LINDE & GRIFFITH COMPANY, INCORPORATED, ET AL., DEFENDANTS.
    Argued May term, 1929
    Decided August 8, 1929.
    Before Justices Tkenciiaed, Kallscti and Lloyd.
    For the rule, Kellogg & Chance.

   Pee Ctieiam.

Defendant applies for a second rule for new trial; the first rule having been argued before the court and discharged. The present application is based on what is alleged to be newly-discovered evidence, bearing on the credibility of the plaintiff and the measure of damages. An examination of the affidavits upon which this application is based discloses, we think, that a new rule should not be granted. The averments therein are wholly hearsay based upon statements alleged to have been made by strangers to the litigation and are as we think wholly inadequate to invite further consideration of the case under a rule to show cause.

The application is denied.


author: Habby J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GUISEPPE GUARINO, PETITIONER, v. NEWARK PARAFFINE AND PARCHMENT PAPER COMPANY, RESPONDENT.
    Eor the petitioner, David, Roskein.

    Eor the respondent, Richard, W. Baker.

   The petitioner testified on his own behalf and also called to testify Dr. ICeppler, Dr. Ereedman and Dr. Shapiro. On behalf of the respondent, Drs. Lowenstein, Eoth, Griffith and Euoff testified and it was stipulated and agreed that the onfy question involved in this case was the extent of temporary and permanent disability, it being admitted that the petitioner received an injury by accident arising out of and in the course of his employment on April 15th, 1927, and that his wages were $24 per week.

After reviewing the testimony in this case I am of the opinion that the estimate of permanent disability given by Drs. Keppler and Shapiro were high in that their estimates were made on the basis of the petitioner’s being unable to flex ox extend his ann because of the injury to the elbow, claiming that the same was due to a bony and a fibrous com- . position at the joint. It was later shown, however, that there was no bon}*- or fibrous composition which prevented the flexing or extending of the arm, as twice under an anaesthetic, as testified bjr Drs. Lowenstein and Eoth, the petitioner’s arm ivas easily flexed and extended to its full extent.

After carefully considering the testimony in this case I hereby find and determine that the petitioner is entitled to receive teuiporary compensation from the date of the accident up to and including November 4th, a period of twenty-nine weeks, at the compensation rate of $16 per week, of which a period of nine weeks has already been paid, the balance of twenty weeks at the compensation rate of $16 per week is due and owing and is to he paid to the petitioner in a lump sum, upon the signing of this order.

I further find that the petitioner is entitled to an award for permanent disability based upon twenty per cent, permanent loss of the right arm, being forty weeks at the compensation rate of $16 per week, all of which has been duly paid by the respondent.

It is further ordered that the respondent shall pay the sum of $75 for medical testimony rendered in the above case and the petitioner shall pay the balance herein.

It is further ordered that David Eoskein, attorney for the petitioner, shall be entitled to a counsel fee of $50, which shall be paid by the petitioner.

Habby J. Goas, Deputy Commissioner.


author: Hakky J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK B. HAGAMAN, PETITIONER, v. HAHNE & COMPANY, A CORPORATION, RESPONDENT.

      For the respondent, Charles IF. Broadhursi, of Collins £ Corbin.

    For the petitioner, Mr. Lewis, of Osborne, Cornish & Scheclc.

   i\t H:

1. Sometime prior to August 10th, 1927, the petitioner sustained an injury to his right hand, which injury caused a permanent disability of said hand, the exact percentage of which it is at this time impossible to determine.

2. On August 10th, 1927, while employed by the respondent as a salesman in the hardware department, the petitioner, while lifting a lawn mower from the floor to a table, strained or twisted his right wrist. He continued to work, however, for a period of about ten days, at which time he was laid off because of lack of work. Although he notified his foreman within a few days after August 10th, 1927, that he had hurt his wrist, and although he was requested by the foreman to go to the nurse of the respondent for treatment, he did not do this and did not seek medical treatment until some little time after this accident.

3. When examined by Dr. Szerlip on behalf of the respondent October 27th, 1927, that doctor found a permanent disability at that time of fifteen per cent, of the hand, but was unable to determine exactly what percentage was due to the first accident and what percentage was due to the second accident.

4. The attorneys for the respective parties, with the approval of the petitioner, have agreed to adjust this matter by paying teii per cent, of the amount, or fifteen weeks at the rate of $17 per week. The petitioner did not have any temporary disability and no medical treatments. The respondent agrees to pay $50 to Osborne, Cornish & Scheck as counsel fee.

It is ordered and adjudged that judgment he and the same hereby is entered in the above matter as above stated.

Hakky J. Goas, Deputy Commissioner.


author: Habky J. Coas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    OTTO WAETGE, PETITIONER, v. INTERNATIONAL OXYGEN COMPANY, RESPONDENT.
    For the petitioner, John V. Laddey.

    For the respondent, McCarter £ English.

   That the petitioner was in the employ of the respondent on July 6th, 1927, with his weekly wages amounting to $33.60. On said day, petitioner met with an accident arising out of and in the course of his employment. The accident consisted in an air tank exploding; the force of the explosion, according to petitioner’s testimony, knocking him down with a few minute particles of metal lodging in one of his arms, and he receiving several minor burns from the soda the tank contained. Petitioner, at the time of the accident, and for sometime prior thereto, was suffering from a severe case of diabetes and shortly before his accident had just left the City Hospital, Newark, where lie had been under treatment for sometime for this diabetic condition and according to Dr. Teimer, who treated him in the hospital at that time, he was not cured at the time he left the hospital. He remained at the hospital until July 23d, 1927, and on or about August loth, 1927, went back to work for the respondent. He remained at work until on or about September 12th, 1927, at which time he had headaches and dizziness when he stooped over quickly, both of which are symptoms as testified to of diabetes. He left his work on September 12th, 1927, and thereafter went back to the hospital where he was again treated for diabetes. He left the hospital in April, 1928, and started working on May 17th, 1928, and has been working ever since.

Claim was made of a head injury due to this accident. It is most significant that the examination of the petitioner at the City Hospital immediately after the accident shows that both his head and scalp were negative. And further, the examination of him in September when he re-entered the hospital again shows the head and scalp negative. X-rays were taken of his head July 11th, 1927, within a week of his accident, and these were negative. X-rays were again taken in October, 1927, and showed no fracture. Dr. Hood testified that X-rays taken in March, 1928, showed what might be a depressed fracture but the hospital report on those X-rays, which was not before Dr. Hood at the time he testified, showed that these X-rays were also negative. There is no testimony in the case that petitioner’s head was struck at the time of his accident and certainly if there had been a severe blow on the head there would have been some evidence of it, on at least the examination immediately after the accident at the City Hospital. On the entire testimony, therefore, the alleged head injury in connection with this accident is eliminated from this case.

The petitioner sustained some minor temporary disability due to the accident. The period from July 6th, 1927, up to the time he resumed his work, .August 15th, 1927, has already been paid petitioner by the respondent as and for his temporary disability. I am not at all certain that the period from September 12tli, 1927, to May 17th, 1928, part of which time petitioner was again in the hospital for diabetes, has any connection whatsoever with his accident of July 6th, 1927. The testimony is that diabetes is never cured and that any number of things may bring it on again quite severely and it is to be remembered that petitioner had been in the hospital previous to any accident,for treatment for diabetes. However, in this case, as I stated at the hearing, I will give the petitioner the benefit of the doubt and allow him temporary disability covering the period from September 12th, 1927, to May 17th, 1928. This covers, and most liberally, any share the accident referred to may have had in the diabetes. The evidence in the petitioner’s case is that at the present time his condition as regards diabetes is at least as good as it was prior to the accident of July 6th, 1927, and it is, therefore, determined that whatever disability there was arising from this accident and affecting petitioner’s diabetes was entirely of a temporary nature and ceased May 17th, 1928.

It is, therefore, ordered that a judgment final' be entered in favor of the petitioner and against the respondent for temporary disability amounting to thirty-six weeks from September 12th, 1927, to May 17th, 1928, at $17 a week; and it is further ordered that respondent pay Dr. Tenner’s bill for medical services rendered to the petitioner, amounting to $110, and also fees for expert medical testimony to Dr. Theodor Teimer $50, and to Dr. Philip. C. Hood $25. Petitioner’s attorney, John Y. Laddey, Esquire, is allowed a counsel fee of $120, $60 to be paid by the respondent and $60 to be paid by the petitioner; Dr. Englander’s fee for testimony to be paid by the petitioner.

Habky J. Coas, Deputy Commissioner.


author: Hauky J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH E. KLING, PETITIONER, v. JOSEPH A. THORPE, RESPONDENT.

      For the petitioner, Ginsburg & Simon.

    For the respondent, McDermott, Enright & Carpenter.

   The petitioner testified and I find the facts to be as follows :

On November 5th, 1926, he was working on a job in East Orange for Joseph A. Thorpe, a plumber by whom he was employed, and claims that when he was leaving the job and descending an iron rear stairway he slipped and fell four or five steps.

He testifies that he struck his spine and buttock. He continued on another job and claims that he then felt bad and went home. He testified that he saw a doctor named Louder four or five times afterward and was treated by him for four weeks, after which he went to Dr. Eenzelle, and did not go back to work until the following January. He could not work and was obliged to quit and did not get any further work until a week before the hearing.

On cross-examination he testified that he felt weak after the fall and that, he had bruises on his spine. He later qualified this and said that they were not bruises, but it was a hurt.

He testified that Dr. Louder prescribed three types of medicine and that they were all internal. When he went to Dr. Louder he said he complained of his back and could not sit down, and he finally admitted that in addition to the complaints given before he had a swollen testicle and that it started to swell November 6th or 7th. He admitted also on cross-examination that eighteen years before he had similar trouble, which was pronounced light gonorrhoea, at which time he was pronounced cured after being treated three or four months.

He testified further that he was unconscious from Saturday until Wednesday, and also testified as follows:

“I didn’t know what was going on around me. I woke up on Wednesday morning and I heard my wife say, Tt is six o’clock, you have got to get up.’ - I turned around and I said, ‘What the heck are you getting up at six o’clock for on a Sunday morning?’ She said, ‘It isn’t Sunday, it is Wednesday,’ and I said, ‘Where have I been all this time?’ She said, ‘You have been here all right.’ ”

Although he was treated by both Dr. Louder and Dr. Eenzelle, neither one of these doctors were produced at the hearing. Instead the petitioner, introduced the testimony of Dr. William B. Ein, who merely examined him for the purpose of testifying.

Dr. Yanderhoef testified for the respondent and stated that he found an enlargement of the right testicle, an enlargement and thickening of the epiditymis, which was hard, such as is found in about ninety-nine per cent, of gonorrhoea eases, and that he was sure that the condition was gonorrhoeal epiditymitis.

Dr. Ein claimed that the petitioner had a bilateral sacroiliac strain and lumbar strain, but Dr. Vanderhoef testified that the spots where he complained of pain were all entirely apart from the saero-iliac joint. He further testified that there was no loss of function anywhere.

It seems preposterous to believe that if he had been sick and in bed unconscious during the period of time that he testifies that his wife would wake him up at six o’clock in the morning and tell him to get up.

It also seems to me that if Dr. Louder and Dr. Eenzelle had treated the petitioner for conditions arising from the accident that the petitioner would have produced either one of these two doctors, and the failure to produce either one of them is in my mind damaging to the petitioner’s case.

There was no witness to the alleged accident and I am of the opinion that an accident as he described, which enabled him to finish the job he was then engaged on, could not have been so severe as to have caused the alleged unconsciousness.

He admits having had gonorrhoea eighteen years ago and I note from the testimony that he is suffering from a similar condition or results of such a condition at the present time.

Considering all these facts and the testimony taken in the case I am of the opinion that the petitioner has not established that the condition from which he is suffering is a result of an accident arising out of and in the course of his employment, and I therefore find in favor of the respondent. ❖ *

Hauky J. Goas, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARIA VALKOVIC, PETITIONER, v. W. J. SLOANE MANUFACTURING COMPANY, RESPONDENT.
   This is a case coming on for determination under the provisions of paragraph 11 (z) of the Workmen’s Compensation act, in which the facts briefly stated are as follows:

On October loth, 1926, Joseph Yalkovic was in the employ of the respondent when he met with an accident arising out of and in the course of his employment, which resulted in temporary disability from the date of the accident until May 6th, 1927, and further caused the permanent loss of seventy-five per cent, of function of the left hand. An agreement for compensation on Eorm 3, a blank authorized by the workmen’s compensation bureau, which blank was prepared by the Globe Indemnity Company, acting for the respondent, was acknowledged by the said carrier and was signed hy the injured man. This blank when so signed constitutes, in accordance with the context thereof, an agreement between the parties as contemplated hy paragraphs 4 and 5 of chapter 149, laws of 1918, and paragraphs 20(b), 21(f) and 23(e) of the Workmen’s Compensation act, and also a compliance with the terms of the Accident Reporting law, chapter 187, laws of 1924.

According to the statements contained on this final report and agreement form, this man received compensation in the amount of $493, covering the twenty-nine weeks’ temporary disability, and was entitled to one hundred and twelve and one-half weeks at $17 a week on account of permanent injury, of which amount he had received payments covering ten weeks, leaving an unpaid balance of one hundred and two and one-half weeks as of August 1st, 1927, on which date this man came to his death as a result of conditions in nowise attributable to the accident.

The testimony at the trial developed the fact that this man at the time of his death had a wife who was residing in Choca in Czecho-Slovakia, and that he, at frequent intervals, sent his wife money for her support. Under the status of this ease as it appears aboATe, the petitioner is entitled to the unpaid balance of compensation for permanent injury in accordance Avith the agreement form as signed and filed with the bureau and approved by it on June 3d, 1927.

❖ * & # * ' Jv

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THOMAS S. WALLS, PETITIONER, v. NATIONAL BENEFIT LIFE INSURANCE COMPANY, RESPONDENT.
   The petitioner, Thomas S. Walls, was .employed by the respondent company as an'insurance collector, and on October 20th, 1927, while he was collecting insurance for the respondent company, and at the same time getting new business, he was struck by an automobile truck, rendered unconscious, and immediately removed to the City Hospital, Newark, New Jersey. It appeared without dispute that the petitioner, Thomas S. Walls, was employed by the respondent company for several years, and that it was his duty to collect insurance premiums for the said respondent company, and at the same time endeavor to obtain new business. It was while he was making several collections, and in crossing Belmont avenue, at or near the intersection of Avon avenue, in the city of Newark, county of Essex and State of New Jersey, he was struck by a truck and injured. He remained at the City Hospital from October 20th, 1927, to November 10th, 1927, when he was discharged. It further appears from the testimony that the petitioner, Thomas S. Walls, received a possible concussion of the brain, total blindness of the right eye, and a partial blindness of the left eye, to the sight of 20-20.

The respondent company was represented at the hearing by George W. Gregory. Testimony further shows that Thomas S. Walls, prior to the accident, had been a healthy, strong and well man, and had fairly good eye sight. It further appears that as a result of the accident, during the course and scope of Ms employment, he has not only lost the sight of his right eye, but his left eye has been affected thereby. It further appears that since the accident he has exhibited such symptoms as dizziness, headaches and vomiting.

Both doctors, William R. Silverstein and Maurice Klein, agree that as a result of the aforesaid accident, the petitioner, Thomas S. Walls, is totally blind on the right eye, and partially blind on the left eye, and has a disability of between thirty to thirty-five per cent. Dr. C. Wallace Hurl!', employed by the respondent concern, agrees with both doctors in the respect that he is totally blind on his right e_ye and partially blind on his left eye, and has shown evidence of a possible concussion of the orbit of the right eye, and has exhibited the usual symptoms of dizziness, headaches, &c.

ifi ifc s|í í|í ifr % *

It is therefore found and determined that the petitioner, Thomas S. Walls, suffered a total loss of his right eye and a partial loss of his left eye, on October 20th, 1927, as a result of the accident which arose out of and in the course and scope of his employment for the respondent company. It is further found that the employment of the petitioner, Thomas S. Walls, with the respondent company, is not disputed, and that his wages were between $40 and $50 a week.

I therefore find and determine that the petitioner, Thomas S. Walls, is entitled to compensation for temporary disability for a period of six weeks, none of which has been paid, and compensation for permanent disability for a period of one hundred and fifty weeks, based upon thirty per cent, of tota] disability, the compensation rate being $17. I further find that the petitioner, Thomas S. Walls, is entitled to the sum of $150 to cover his medical expenses, pajMfie by respondent, and that his counsel, Raymond H. Cohen, is entitled to a counsel fee of $5 for stenographic fee and $12 for subpoena fees.

❖ * * * * * jj;

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY RIDGE, PETITIONER, v. EDWARD J. GRASSMAN, RESPONDENT.
    Eor the petitioner, Connolly & Hueston.

    Eor the respondent, McDermott, Enright & Carpenter.

   This case came on for hearing before the workmen's compensation bureau at Elizabeth on Tuesday, August 21st. It was stipulated between the attorneys for the respective parties that the deceased, George Eidge, was employed by the respondent as a watchman and was in his employ on January 21st, 1928, at which time he received a wage of $36 per week, and that on the day in question, shortly after eight-thirty p. m., he was found dead with a bullet wound in his neck on North avenue, Elizabeth, where he had been working as a watchman for the respondent.

The attorneys for the respective parties * * * stipulated upon the record a stenographic transcript of the testimony of Yincenzo Carbone, another employe of the respondent, Edward J. Grassman, who was also employed as a watchman on North avenue at that time. The testimony of Yincenzo Carbone shows that he was asked to act as a watchman that night because thieves had been stealing parts of the steamshovel and tools; that there was a shanty which was used by the workmen in which there was a stove; that it was very cold and he took a bag at about eight-thirty p. m. and went over to the steamshovel to get some coal; that he went around the machine and a man came running and jumped over tlie fence; Ihat there were three or four other men screaming far away; that as he was picking np the bag that the coal was in, a man came and struck him with a razor on the band and on the neck where he still had scars; that he stepped back and fell over some pipes; that the man got hold of his neck and got on top of him; that he grabbed hold of the wrist that he had the razor in and with his other hand took a gun from his back pocket and shot in the rear to scare him, not at; him; that the other man heard a noise and turned around when Carbone shot him and he fell to the ground.

It appears from tlie testimony that Carbone returned to his room, taking the razor from the other man who happened to be Eidge, also taking his gun, which was empty, and throwing it away on his return home; that he reported what had happened to a friend of his and that they both reported to a foreman for Edward J. Grassman, after which Vincenzo Carbone disappeared for a period of time and later surrendered himself to a police officer, was fried for murder and acquitted.

The petitioner rested and the attorney for the respondent moved to dismiss the case on the ground that there was no proof of the happening of any accident arising out of and in the course of the employment of George Eidge by the respondent, and on the farther ground that if the said George; Eidge was acting to protect the property of the respondent, he had no authority or occasion and was not justified in using a razor upon Vincenzo Carbone; that his act in so doing was willful and malicious, by reason of which the respondent would not he responsible.

As the case involved a close question of law as to whether or not the respondent was responsible to the petitioner for compensation for the death of her husband, the parties agreed to and submitted a proposition of settlement, I called and examined Mrs. Mary Eidge and find that she is satisfied with tlie settlement submitted and thoroughly understands same. 1 find that the said George Eidge is survived by his wife, Mary Eidge, and by a son Paul Eidge, horn July 11th, 19'25, and a son John Ridge, born May 19th, 1927. I have considered the testimony carefully and believe that the amount offered by the respondent is a fair and, in fact, liberal offer in view of the questions involved.

It is therefore * * * ordered that a compromise judgment be entered in favor of the petitioner, Mary Ridge, and her children, Paul Ridge and John Ridge, against the respondent, Edward J. Grassman, for compensation for the death of George Ridge, for one hundred and fifty weeks at $16.20 per week, amounting to $2,430, for two hundred and one weeks at $14.40 per week, amounting to $2,894.40, and for an additional fifty-nine weeks at $12.60 per week, amounting to $743.40.

It is further ordered that judgment be entered against the respondent, Edward J. Grassman, and in favor of the petitioner, Mary Ridge, for funeral'expenses to the extent of $150.

It is further ordered that the respondent pay to the attorney for the petitioner a counsel fee of $400.

Charles E. Corbin, Deputy Commissioner.


author: Haeky J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MATTHEW PETONIAK, PETITIONER, v. ANDREW McLEAN COMPANY, RESPONDENT.

      For the petitioner, Irving L. Werhsman.

    For the respondent, Clarence B. Tippett.

   The petitioner herein testified, in brief, to an alleged occurrence on July 27th, 1927; that while lifting or carrying a heavy roll of cotton, which was his regular work and which he had been doing for some years, he felt suddenly “warm” in his eye; that he claimed he reported to his foreman, telling him and Mr. Werling, in charge of the first-aid, that he was “all red in the eye.” He gave no history of anything striking his eye or getting into his eye, merely alleging that this came upon him suddenly while doing his work.

A Mr. Banks, foreman, recalled an incident of the man stating his eye was much inflamed, but he received no history of any accident or of anything striking or injuring the eye. A Mr. McCaffrejr testified that he recalled the man’s eye looking red, but he knew of no accident or injury. Likewise, a witness, Stoben, knew of no accident or injury.

Mr. Werling, supervisor in charge of first-aid, recalled Petoniak coming to him with an eye inflamed and looking-bloodshot; he washed out his eye, received no history of injury or of anything ■ having struck him or gotten into his eye, and suggested he go to see Dr. Chase, which he understood the man did.

Throughout the petitioner’s testimony and that of Mr. Werling, the respondent questioned the witnesses with respect to history of petitioner having been troubled previous to July 27th, 1927, with some condition in this eye, and it disclosed that apparently the petitioner had been troubled with some condition before July 27th, 1927.

Upon the continuance of this case at Hackensack, July 12th, 1928, Dr. Chase was called by petitioner, who described his examination which he made on July 28th, 1927, finding the left eye much inflamed, describing an iritis with hemorrhages in the retina. He subsequently diagnosed the development of a glaucoma. He obtained a history that while this man was lifting a roll a day or two before, that he felt pain in the eye and it became red. The patient had also told him that his left eye had been inflamed for one week or at least some days before he saw him. He could not state whether or not any one alleged strain or act of lifting might or did cause a breaking of blood vessels; nor could he say whether or not it was due to a series of hard labors over a period of time, which might have been the cause for this condition.

. Dr. Hughes also testified to an examination made on January 9.th, 1928, at the instance of respondent, and he disassociated any causal connection between the alleged act of .lifting and the condition with which the man was suffering.

Without further comment upon the testimony, after hearing the entire evidence presented and the objections raised against an award by the respondent, I am satisfied that the petitioner failed to establish an accidental injury within the requirements of the statute and with the requisite proof necessary to merit an award; that there is lacking competent proof that this condition was the result of an accident while working for the employer on the date in question; and with the further fact that there was evidence that this man’s eye- had been troubling him previous to this date.

Mi $ * $ Mi Mi Mi

Haeky J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PANAGIOTIS HALKIAS, PETITIONER, v. STEVEN LACIES, RESPONDENT.
   This matter being opened to the court by McCarter & English, Esquires, the following facts appear:

The petition filed in'this cause December 33th, 1927, is based on an accident occurring December 13th, 1926. The accident happened in Jersey City, this state, and arose out of and in the course of petitioner’s employment with respondent. Both petitioner and respondent at the time of the hiring and thereafter were residents of New York. Respondent claimed, however, that the hiring of petitioner had taken place in this state and that this department had jurisdiction of the case. Petitioner claimed that the hiring had taken place in New York City and that the labor department of the State of New York had jurisdiction of the matter.

Petitioner was notified to appear at informal hearings here but failed to do so. However, meantime, petitioner had started an action for compensation in New York. The main disputed point in the New York suit was the question of jurisdiction and that ease was still pending as the end of the year from the date of the accident drew near. Quite apparently to protect petitioner’s rights in this state in the event New York failed to accept jurisdiction, a formal petition in the matter was filed here on December 13th, 3 927. This petition was never moved by petitioner and on February 16th, 1928, the New York Compensation Court held that the case was under the jurisdiction of that state and compensable there with temporary compensation allowed. No appeal was taken from that decision and the temporary compensation has been paid. The case is still before the New York labor department on the question of permanent disability and bears the number 2634779.

On the above state of facts it is obvious that the petition filed in this cause should be dismissed.

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Chakles E. Cobbiat, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK MELLOR, PETITIONER, v. NICHOLSON FILE COMPANY, RESPONDENT.
    Eor the petitioner, Arthur C. Dunn.

    Eor the respondent, Clarence B. Tippett.

   í¡í íJí íJí s¡; í|í £

The facts presented in this ease, in brief, were: That Frank Mellor, in the course of his regular employment for the respondent, on February 16th, 1923, was struck in the right eye by a piece of metal flying from a punching machine. He was treated by Dr. Joseph L. Dias, of Newark, New Jersey, from February 17th, 1923, to April 1st, 1923. The petitioner was paid temporary disability of five weeks and three daj's at $12 per week, amounting to $67.57, and also thirty-five per cent, permanent loss of use of the right eye, thirty-five weeks at $12 per week, amounting to $420. Dr. Dias was paid for his services by the respondent. On April 1st, 1923, petitioner returned to work for the respondent and thereafter continued his regular work until about January 1st, 1927.

It appears that the date of the last payment of compensation was December 2d, 1923.

This present petition, wherein it claimed “loss of usefulness of right eye,” was filed on April 30th, 1927. At th(e formal hearing held, it was also presented that the petitioner during January, 1927, appears to have had trouble again with the vision of his right eye and called upon Dr. Dias at his own instance for treatment. Dr. Dias afforded medical treatment but found it necessary to remove the right eye. When the employer learned that this man was going to Dr. Dias for treatments, his physician was notified that the employer wonld not he responsible for a bill for additional treatments, disclaiming liability or responsibility therefor.

The respondent opposed legal liability upon it for payment of additional compensation or obligation to afford further medical treatments or services, asserting further claim was barred under section 23 (h) of the statute.

After giving careful consideration to the facts and circumstances in this case, I decide as follows:

First.—That the claim of the petitioner for further compensation is barred under section 23 (h) of the statute, inasmuch as the date of last payment of compensation under the agreement to pay between the employer and the petitioner was December 2d, 1923, and the petition for further compensation was filed April 30tli, 1927, more than one year from the said date of last payment.

Second.—As to the claim for further medical services for reimbursement for medical expense, my opinion is that there is no legal liability under the statute in accord with the facts herein to charge the employer therefor. 1 have given consideration to the proof submitted by the respective attorneys herein. This claim for reimbursement for further medical treatments comes more than three years after the date of the last payment of compensation. The statute is interpreted to he a remedial statute and permits of quite broad construction in order that its purposes may be effectuated. The statute subjects the employe to the benefits therein provided and in the manner therein dsignated under section 2. Under section 14, it provides initially for medical, surgical and other treatments, and the employer is not liable for any further services in excess of the amount set forth therein in the absence of filing a petition for that purpose. Xo claim for additional compensation or medical costs was made until almost five years after the original accident.

In Ringwall Linoleum Works v. Liquor, 89 N. J. L. 453, our Supreme Court held that the compensation proceedings “are statutory in their origin and are intended to be summary in their nature and conduct.”

There must he a reasonable end of litigation in any case. I do not believe it the intention of the act to obligate an employer to be called upon to pay for medical treatments at so long a time after the last payment of compensation, on the facts in this ease. In Steers, Inc., v. Turner Construction Co. (Court of Errors and Appeals, October 17th, 1927), it was, among other things, viewed that expense of medical and hospital services furnished to the employe was comprehended within the “total compensation payments,” and from that case it would indicate a statutory bar was existent in the present case, for all purposes. I do not think medical services can be considered as compensation or within the provisions of the Compensation act for one purpose, and then in disregard of the act for another purpose.

>]; Hi

Harry J. Goas, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.. .

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SIMON BRUYERE, PETITIONER, v. GERTRUDE D. WALKER, RESPONDENT.

      For the petitioner, Jacob IF. Silverman.

    For the respondent, McDermott, Enright & Carpenter.

   The following appears from the testimony of the petitioner:

On the 10th day of May, 1927, while in the employ of the respondent as a handy man, janitor, and all-around man, he met with an accident arising out of and in the course of his employment.

On this day and for a period subsequent thereto, the petitioner was employed by the respondent in the aforesaid capacity, on her estate at Pompton Lakes, New Jersey, and his wages were $15 per week, including board and lodging. His sleeping quarters were over a garage forming part of the estate. He was a handy and all-around man, and a part of his duties were to take care of the furnaces and water pump on the premises. As such handy and all-around man, the petitioner was subject to call at all hours of the day and night, and in the entire day of twenty-four hours, he was subject to the call of his employer. On said 10th day of May, 1927, the petitioner had been cleaning one of the furnaces on the premises and as a result thereof became covered with soot and filth from had to foot. He went to his quarters in the garage, removed his clothing, and went to the bathroom in said quarters to take a bath, it being ten o’clock or then about, in the evening. Upon finishing his bath, he stepped on the bathroom floor and in the act of doing so, stepped on a piece of glass, on the sole of his left foot. The petitioner, with first-aid treatment, left the garage premises and repaired to another part of the premises to look after the water pump before going to bed. The petitioner kept on working but was compelled to stop on the 15th day of January, 1928. lie sustained a deep cut in the fifth left metatarsal region, infection subsequently setting in, causing petitioner to stop work and temporary and permanent disability. The petitioner was treated by Joseph J. Olini, a physician duly licensed to practice in the State of New Jersey, from Iho 11th day of May, 1927, to the 15th day of January, 1928.

The following appears from the testimony of Dr. Olini in behalf of the petitioner:

He was attended by Dr. Olini on the 11th day of May, 1927, for a cut on the left foot, in the fifth metatarsal region. The petitioner was able to work until August 15th, when his foot became infected and worse and he was unable to work from August 15th, 1927, to January 15th, 1928. The petitioner sustained a permanent injury amounting to five per cent, loss of the foot. Dr. Olini’s bill for services is the sum of $100, which is a reasonable charge for same. The respondent adduced no testimony at the trial.

Prom the foregoing facts as found by me, I am of the opinion that the petitioner, Simon Bruyere, met with an accident arising out of and in the course of the said employment. The petitioner received a'wage of $15 per week with board and lodging. Lodging includes meals, the privilege of personal hygiene and sleeping. It could hardly be expected that an employe who received lodging on the premises of the employer, and whose entire day of twenty-four hours was subject to call of his employer, would not have the privilege of washing himself and taking an occasional bath. This privilege is just as important as sleeping. Aside from this fact, ■ it appears from the evidence that the petitioner had been cleaning one of the furnaces on the premises, and was covered with soot and dirt. It was part of his duties to attend to the pump which supplied water to the entire premises. Due to his filthy condition, he was obliged to take a bath so as to properly discharge the duties for which he was hired by his employer. The accident arose out of and in the course of his employment for the following reasons:

(a) The accident occurred while the petitioner was taking a bath, which was part of the contract of hiring between the petitioner and respondent.

(b) The petitioner was taking the bath as a matter of necessity and for the proper discharge of his duties, for which he was engaged by the respondent.

' (c) The petitioner was subject to call by the respondent during the entire day of twenty-four hours.

Iii the case of Allan v. Glaser, 4. N. J. Mis. R. 754, the daughter of the petitioner was employed as a waitress, part of her compensation including lodging. She was burned to death while sleeping upon the premises of the employer. The court held that the lodging was part of the contract of employment and therefore her death arose in the course of her employment.

The case at bar is a much stronger case, for in the cited case there vras no evidence that the deceased was subject to call nor that her death arose while doing an act of necessity.

t’fi * jH i'fi ❖ *

Harry J. Goas, Deputy Commissioner.. .


author: Hakry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN TRUMM, PETITIONER, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, DEFENDANT.
    Eor the petitioner, Charles Becker.

    Eor the respondent, Edmond M. Moffett.

   * * * * * v *

At the hearing held in this matter, the petitioner testified that he was employed by the respondent as a ear repairer at its Elizabethport shops and that on November 1st or 2d, 1926, he lifted up a jack while working on a car and injured his back and right side. There also testified in behalf of the petitioner two witnesses who said that he complained to them of having strained his back, but their recollection of the date of this conversation appeared very hazy.

The evidence adduced on behalf of the respondent, Central Eailroad Company of New Jersey, showed that although petitioner had been in its employ, it had never received any notice of the accident alleged to have occurred on said dates and showed, furthermore, that the petitioner had- not appeared for work on either of the said dates on which the said accident is alleged to have occurred.

In view of the character of the evidence adduced at the hearing, as well as the credibility of the witnesses who appeared on behalf of the respective parties, I do find and determine as follows:

That petitioner did not sustain any injuries as a result of the accident alleged to have occurred on November 1st or 2d, while in the employ of the Central Eailroad Company of New Jersey, and that the said respondent, the Central Eailroad Company of New Jersey, never had any notice of the occurrence of said accident.

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Hakry J. Goas, Deputy Commissioner.


author: Unger, S. 0. C.

text:
    Essex County Court of Quarter Sessions.
    STATE OF NEW JERSEY, PLAINTIFF, v. ANTONIO VIRGILIO, DEFENDANT.
    Eor the defendant, Arthur B. Seymour.

   Unger, S. 0. C.

By virtue of the provisions of paragraph 9 of “An act concerning intoxicating liquor used or to he used for beverage purposes” (Pamph. L. 1922, ch. 255), Joseph Kaminsky and Yictor Hugo made complaints before me as a Supreme Court commissioner (who by the act is constituted a committing magistrate for that purpose) against a saloon at Ho. 61 S. Day street, Orange, Hew Jersey.

The defendant now moves to quash the search warrant, giving the following reasons which are dealt with as they appear.

1. Defendant contends there is nothing in the affidavit of Joseph Kaminsky and Yictor Hugo which shows that they have probable cause to suspect that the premises are kept, occupied and maintained for the storage and sale of liquor in violation of law. The affidavit is definite that the affiants ordered and were supplied with two drinks of whiskey poured from a bottle into two glasses, which the affiants paid for, tasted and found to be a poor grade of whiskey. This is sufficient to show that intoxicating liquor was kept in the premises.

2. The second point is that the Supreme Court commissioner did not find that the premises were kept and maintained for the storage and sale of intoxicating liquor. The warrant states that the commissioner has examined under oath and taken the affidavit of Hugo and Kaminsky, and that among other things it appears to him and he finds that liquor was purchased by Kaminsky in the premises and property. This is a sufficient finding in my opinion.

3. The warrant is said to be defective in that it does not run in the name of the State of New Jersey. In this case, the warrant reads, “County of Essex, State of New Jersey, To the Sheriff,” &c. I think this is a sufficient requirement that the writ run in the name of the State of New Jersey.-

4. It is contended that the warrant has not been executed as is required in that the search was not made forthwith. The warrant in this case was issued on Majr 18th, 1929, and was returned on May 27th, 1929, the return stating that it was executed on May 25th, 1929. I think this is a sufficient compliance with the word “forthwith.” In the case of State v. Baker, 3 N. J. Mis. R. 532, cited by the defendant, it appears that between the issuance of the warrant and the return there were a number of unauthorized acts by the clerk, and that obedience to the statute was essential in order to confer jurisdiction upon the magistrate; in the present case this situation did not exist.

5. It is contended that the execution of the warrant is void because the property searched was not brought before the Supreme Court commissioner or magistrate. In my opinion it is a sufficient compliance with the act that the officers turned the property over to the Supreme Court commissioner or magistrate, who ordered it returned to a proper custodian, and that was what was done in the present case. I do not think it is necessary for the Supreme Court commissioner to keep the liquor indefinitely.

6. It is contended that the 'execution of the warrant was void because no return was made within ten days as required by the warrant and by the statute. My records show that the return was made on May 27th, 1929, which was within ten da3rs of May 18tli, 1929, the date of the issuance of the warrant.

7. The execution of: the warrant is claimed to be void because no receipt was given to the defendant as required by the warrant and by the statute. Testimony was taken before me on this point and from this testimony it appears that the officers executing the warrant delivered to the defendant the original search warrant. Attached thereto is an inventory of all of the liquor taken by the officers with a statement that the same is a list of the property taken from the premises (describing them on the search warrant in question). At the bottom of this statement and list appears the following signature: “Patrolman William E. Bross.” The latter testifies that it contains a list of the liquor which he took under the warrant; that it is in his handwriting and that he gave it to the defendant. In my opinion this is a sufficient receipt, and even though it is not stated to be a receipt, it is, nevertheless, a full acknowledgment of the receipt of the liquor. This, in fact, constitutes a receipt and in my opinion it complies with the statute.

Eor these reasons, T will be obliged to deny the motion to quash the search warrant.


author: W. E. Stubbs, Deputy Gommissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN ANDERSON, PETITIONER, v. HOAGLAND & GREEN, RESPONDENT.
   This is a case coming on for determination under the provisions of the Workmen’s Compensation act, in which the facts briefly stated are as follows:

The petitioner, prior to and on May 7th, 1927, was in the employ of the respondent as a laborer in the lumbering business at a wage of $24. At about ten A. m. on that date, while working with logs.in the woods, he stepped on a piece of bark causing his foot to slip. In the strenuous effort to save himself from falling, it is claimed that his trousers and overalls were drawn against him so violently as to bruise or otherwise injure his testicles. A few minutes thereafter the resulting pain became severe, and on May 24th he was obliged to discontinue work. An operation followed, and the petitioner was in the hospital nine days, incurring a bill of $136.

The employer was notified of the accident May 24th, 1927. There was an informal hearing at which the referee determined there was a temporary disability of five and six-sevenths-weeks. At the formal trial, Dr. Cummins testified the injured is suffering from a hydrocele. Dr. Hunt, also for the petitioner, testified the petitioner suffers from traumatic hydrocele and traumatic orchitis, and that if due to a disease, the condition would not have developed so suddenly. Other lay witnesses testified that the petitioner previously was a. strong man doing heavy work. The doctor for the respondent testified to double hydrocele, and possibly a mild orchitis, but he was of the opinion that had these resulted from trauma as stated by the petitioner, prostration would have followed at once, lie also was of the opinion that the condition is a temporary one which can be relieved by treatment or operation.

In deciding this case these elements must be taken Into consideration. Could the conditions found by the doctors bo caused by simple pressure of the clothing on the affected parts? Is the orchitis or the hydrocele due to infection, tubercular or other disease? Is the present condition due to aggravation of pre-existing latent disease? Is the present disability temporary or permanent in character ?

A study of the testimony presented at the hearing, with the above elements in mind, leads me to the conclusion that an award should be rendered on the basis of permanent partial disability, saving to the respondent, however, the provisions of paragraph 20 (e) of the act, relative to medical and surgical treatment.

:\i :¡í íj; >;« s\t í¡;

W. E. Stubbs, Deputy Gommissioner.


author: W. E. Stubbs, Deputy Commissioner.. ._

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MYRTLE E. HUNTER, PETITIONER, v. ATLANTIC CITY ELECTRIC COMPANY, RESPONDENT.

      Eor the petitioner, William Elmer Brown, Jr.

    For the respondent, Ralph N. Kellam.

   The petition is filed by Myrtle E. Hunter against Atlantic City Electric Company, a corporation, engaged in electric light and power business at Atlantic City, New Jersey, for compensation, burial expenses, &c., under the provisions of' the Workmen’s Compensation act of New Jersey, its amendments and supplements.

Said Myrtle E. Hunter was the wife of William J. Hunter, Jr., on February 21st, 1928, both living together, and she, together with two children of the marriage, viz., Myrtle Phyllis Hunter, born April 4th, 1924, and William J. Hunter, 3d, born December 19th, 1925, were dependent upon said William J. Hunter, Jr., for their maintenance. Said William J. Hunter, Jr., was, at that time and for several years previous, in the employ of the Atlantic City Electric Company, working as a construction engineer. On or about December 27th, 1927, he was assigned by his employer to the task of surveying and clearing the title to a large tract of land, known as the Deep Water Tract, near Salem, New Jersey, where said company contemplated the erection of a large power plant. Said Hunter was in full charge of said work. He was instructed to proceed with the work in such manner as he saw fit and to accomplish the conclusion thereof at the earliest possible time. He had no particular working hours assigned to him but was expected to work at any* time, either day or night, when it seemed to the advantage of his employer that he should. In his work he was called upon to search public records of land titles, survey property lines, compute surveys, compile records, make reports, &c. The company secured two rooms in the Johnson Hotel at Salem, one of which was used by Hunter as an office and the other as living-quarters where he might stay when he was unable to get to his home at Hammonton, Hew Jersey. Hunter was assisted in his work by one Russell Johnson, whose principal duty was to survejr said tract. The company supplied an automobile to Hunter for use in his work, the cost of up-keep and repair of which was borne by it. Hunter had no particular place where he was required to report each day nor where he was required to store said automobile. He was accustomed to use said automobile to go from his place of employment to his home and back again, and from the testimony adduced at the hearing, it would seem that his employer intended that it should be so used. At least such use of said automobile had the approval and sanction of said company and it knew that it was being so used.

The testimony also disclosed that Hunter very often worked during the evening hours and on holidays in the in1 terest of his employer. The day following the accident was a legal holiday. Legal holidays did not necessarily mean leisure hours for Hunter. It further appeared that he had worked on the business of his employer at his home in the evenings, as well as at other times. All this was with the knowledge and assent of his employer.

At or about three-thirty in the afternoon of February 21st, 1928, said Hunter was at the Johnson Hotel, Salem, Hew Jersey, where he received from said Russell Johnson a survey which he, Johnson, had just completed. Before Johnson could proceed further with his work it was necessary that Hunter should compute said survey. To do that a book of logarithms was required. Such a book, belonging to Hunter, was at the respondent company’s office at Swedesboro, Hew Jersey. Hunter went to Swedesboro in his employer’s automobile, obtained the book and left there at about six-fifteen r. xr. of said day. From there he started for his home at Hammonton. While on his way home he met with an accident and was killed. He was found pinned under said automobile, which was overturned in a ditch or creek at a point near Folsom, New Jersey, beside the road leading from Buena Yista to Hammonton. The book of logarithms, identified as that which Hunter' had gotten at Swedesboro, was also found in said car'. It is- admitted that Hunter met his death by reason of said accident. Eespondent employer had notice thereof shortly' after. The weekly wages of deceased were $51.50. Eespondent contends that the decedent did not receive the injury', which caused his death, in an accident arising out of and in the course of his employment.

In Bolos v. Trenton Fire Clay, &c., Co., 102 N. J. L. 479, it was said that “an accident arises in the course of the employment if it occurs while the employe is doing what a man so employ'ed may reasonably do within a time during which he is employ'ed, and at a place where he may reasonably' be during that time” * * * “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 employmient, as incidental to it.” * * * “A risk is incidental to the employmient when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.” * * * “A risk may be incidental to the employment when it is either an ordinary' risk directly' connected with the employment, or an- ordinary risk which is only' indirectly connected with the employmient-owing to the special nature of the employmient.”

It has also been held by' our courts that for an accident to arise out of an employmient, it is not necessary' that the employment be' the proximate cause of the • accident; it is enough if the employmient be a cause in the sense that but for the employment the accident would not have happened. - Terleck’s v. Strauss, 85 N. J. L. 454; Hanglin v. Swift Co., 37 N. J. L. J. 81.

From the facts as they appeared in this case, it is reason1 able and warrantable to assume that at -the time when Hunter met with the accident which caused his death, he was on his wayr home where he intended to compute the Survey' made by Johnson in order that he, Johnson, might proceed with his work- without interruption at the beginning of the day following tlie holiday. It is justifiable, therefore, to conclude that Hunter’s death was due to an accident which arose out of and in the course of his employment.

But in addition to this, it was testified to that the decedent was on his way home in an automobile supplied him by his employer for use, among other things, in conveying him to and from his work; that he was given the privilege to so use it; that it was so used with his employer’s knowledge and sanction; that ho might conclude his day’s work upon arrival at his home or any other place where he might choose; and that such use was to the mutual advantage of himself and his employer. Under such circumstances it has been repeatedly held by our courts that the relation of master and servant exists. It must, therefore, bo said that an accident occurring while such relationship exists did arise out of and in the course of employment.

In Dunbaden v. Castles Ice Cream Co., 5 N. J. Mis. R. 63, it appeared from the testimony that one Grundman each day went from Newark to Perth Amboy, where his employer kept a four and one-half ton truck which Grundman used to transport ice cream made by the appellant, over a route on Staten Island for the purpose of selling it. Grundman received a commission on each gallon of ice cream he sold. At the end of his day’s work Grundman would leave the truck at Perth Amboy. He would then take a Ford roadster, which was owned by his employer, and which he was permitted to use, and drive it to Newark, where he lived. The car was kept in an alley near his residence over night and then was driven by Grundman in the morning to Perth Amboy, where he would again use the truck for serving the Staten Island route. There was testimony that immediately after the accident Grundman said that he was on his way to the Newark plant of his employer. Mr. Justice Katzenbach, speaking for the Court of Errors and Appeals, said : “Even if this were not so and he was enroute home, we think the case is governed by the decision of this court in Depue v. Salmon Co., 92 N. J. L. 550; 106 Atl. Rep. 379, which held that the relation of master and servant continues during the carriage of the servant to and from his work when done by the master, or with his consent, where from the character of the service such transportation is beneficial both to the master and servant. The appellant seeks to distinguish this case from the present ease because in the Depue case the servant was permitted to use the automobile and take it to his home at night in order to reach his place of employment earlier in the morning than he otherwise would, while in the present case there is nothing which makes it appear that it was necessary for Grundman to reach his work earlier than the ordinary business hour. This, it is argued, did not make the transportation of Grundman beneficial to his employer. The transportation, it is insisted, only benefitted Grundman. We are not impressed by this argument. It was beneficial to the appellant to have Grundman get to its Perth Amboy plant promptty for the service of his route. This could be better accomplished if Grundman had placed at his disposal an automobile with which to make the trip rather than be dependent upon the service of street railways and steam railroads with the delaj^s incident to such travel. We see no difference in principal between the two cases.”

In Cicalese v. Lehigh Valley Railroad Co., 75 N. J. L. 897, 900; 69 Atl. Rep. 166, 167, it was held that where a railroad company provides handcars for the transportation of its employes from the place where they have been working to a point convenient to their homes, even if the journey is commenced after the usual work of the day has ceased, the relation of master and servant continues until the employe has reached the destination to which he is being carried by or with the consent of the company.

In Fisher v. Tidewater Building Co., 114 Atl. Rep. 150, the plaintiff, an employe of the defendant company, was killed while on his way home after quitting work and while boarding a train provided by his employer. Mr. Justice Black, who wrote the opinion, held that: “Where a workman is employed to work at a certain place, and that as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of service continues during the time of transportation, and if an injury occurs during the course of transportation, it is held to have arisen out of and in the course of employment.”

In the case of Gillshannon v. Stony Brook Railroad Co., 10 Cush. (Mass.) 228, which was cited with approval by our Court of Errors and Appeals in Cicalese v. Lehigh Valley Railroad Co., supra, it appeared that plaintiff rode each morning and evening, with other laborers, to and from his work on a gravel train of the defendant, with its consent and for mutual convenience, no compensation being paid directly or indirectly by the laborers for passage, nor was the company under any contract to convey them to and from their work. The plaintiff was injured through the negligence of defendant’s servant. On this state of facts the court held that if by the contract of service the plaintiff was to be carried by the defendant to the place where he was to work, then the injury was received while engaged in the service for which he was employed, but it was not properly inferable from the evidence that the contract actually embraced this transportation, there was a permissive privilege granted to the plaintiff, of which he availed himself to facilitate his labor and service, and was connected with it, and the relation of master and servant existed.

Eollowing the line of reasoning in the aforementioned cases, I am of the opinion that the petitioner is entitled to receive compensation in accordance with the prayer of the petition.

:{« ;!< íjí % K'

W. E. Stubbs, Deputy Commissioner.. ._


author: IT A REY J. GOAS, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANDREW GRZYBEK, PETITIONER, v. RARITAN COPPER WORKS, RESPONDENT.
    For the petitioner, William Herda Smith.

    For the respondent, John F. Toolan.

   I do find and determine as follows:

First.—That Andrew Grzybek, petitioner, was on January 18th, 1927, in the employ of the respondent, Raritan Copper Works, as a driller in the sampling department of said company, which said employment was subject to section 11, chapter 95 of the laws of 1911, commonly known as the Workmen’s Compensation act, and the supplements and amendments thereto.

Second.—That on the date aforesaid petitioner met with an accident arising out of and in the course of his employment. Said accident occurred as follows: Petitioner, while in the act of lifting a copper slab from an industrial truck or car disturbed other slabs which slipped down and fell against petitioner’s left leg, causing a fracture of the lower third of the tibia.

* * * * * * *

Fifth.—That petitioner was removed to the Perth Amboy City Hospital and attended by Dr. Martin S. Meinzer; that on January 25th, 1927, the petitioner died of delirium, tremens.

Sixth.—It is a matter of common knowledge and the doctors both for the petitioner and the respondent testified that the fracture of the leg tras not sufficient do cause death. It was the contention of the petitioner, however, that the fracture of the leg was the proximate cause of death because the resultant shock to petitioner’s nervous system induced the delirium tremens from which death resulted.

Seventh.—The attending physician, Dr. Martin S. Meinzer, a witness produced by the petitioner, testified that the cause of death was delirium tremens. The only question before the court, therefore, was whether or not the fracture of the leg induced the delirium tremens. On this question the medical testimony, consisting of Dr. Martin S. Meinzer and Dr. Adrian E. Urbanski for the petitioner, and Dr. William E. Kamsay for the respondent, was in practical accord. All of the doctors testified that it was possible for a fracture of the leg to induce or precipitate delirium tremens in a confirmed alcoholic. The deceased was, according to the testimony of the doctors, an alcoholic subject. None of the doctors, however, could testify that the fracture of the leg in the instant ease actually did precipitate or induce the delirium tremens. The doctors in fact testified that it would be impossible to say that petitioner would not have developed delirium tremens if there had been no accident.. In order to find for the petitioner the court would have to infer that the fracture sustained by the petitioner actually caused the delirium tremens from which petitioner died. The testimony of the doctors would not justify the court in drawing this inference. The burden of proof is on the petitioner. The case is entirely devoid of any proof which indicates that the reasonable and probable consequence of the fracture of the leg-precipitated or induced the delirium tremens. The testimony of the doctors indicates that the fracture might possibly have been a contributing cause. This is not sufficient to justify a finding for the petitioner.

IT A REY J. GOAS, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LUITGEN KOOIMA, PETITIONER, v. FUCHS & THOMSON, RESPONDENT.
    Eor the petitioner, Pearlman & Pearlman.

    For the respondent, Crawford Jamieson.

   The petitioner claimed that while employed by the respondent company as a helper to pattern makers he bumped his head against a partition. The petitioner testified that he continued work from the date of the alleged accident on January 24-th, 1928, until March 17th, 1928, for the same company. He testified further that he could work no longer because he had headaches and dizzy spells. The petitioner testified that a member of the respondent firm, Mr. Euchs, witnessed the accident hut that aside from that, no further notice or complaint of an accident was made to the respondent company. No medical attention was requested. The petitioner testified that he was sixty-seven years of age.

Dr. D. A. Introcasso was called by the petitioner and he testified that he saw the petitioner for treatment about six times, beginning the last week in Eebruarjr, 1928. He further testified that from the history of previous good health prior to receiving a blow on the head he concluded that the present complaints of headaches and dizziness were caused by a cerebral concussion.

Mr. Euchs, a partner in the respondent company, testified on behalf of the respondent that he had never seen the petitioner bump his head and had no knowledge of the petitioner having received an injury while in his employ until a petition for compensation was served on him. He further testified that the petitioner was laid off on March 17th because of lack of work. Mr. Pnchs also said that the petitioner complained of his present condition of dimness of vision in 1925 and that as a result of his complaints the company purchased eye glasses for Mr. Kooima.

Mr. Edwin K. Ivins, who investigated this matter for the respondent company, testified that Dr. Introcasso had told him that he first treated the petitioner on May loh, 1928, and saw him only two or three times thereafter.

Dr. Andrew C. Ruoff was called by the respondent and stated that in his opinion the man’s present subjective symptoms were caused by a chronic systemic condition and not by a trauma. Dr. Ruoff further testified that the petitioner’s alleged condition could not have resulted from a possible cerebral concussion that was so slight that the injured party could continue work for seven weeks thereafter.

After reviewing the evidence I find that the petitioner did not prove an accident arising out of and in the course of his employment and I further find that the injury complained of was not the result of an accident.

sjs ^ * ❖ * * *A

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JACOB GOLD, PETITIONER, v. ABRAHAM KLIGMAN, RESPONDENT.
   * ' * * ii: S:

The attorney for the petitioner having called as witnesses Jacob Gold, the petitioner, and Drs. Oscar Glass, Andrew T. Rnoff and Ambrose' E. Dowd, and the respondent having called Drs. Irving Willner and Edward W. Markens, and it appearing by the testimony that the petitioner, while raising one end of a scaffold to paint the side of a house, and it appearing that the scaffold stuck on a window ledge, and that petitioner while pulling on the scaffold suffered a cerebral hemorrhage; and it appearing that no unforeseen or extraordinary- event occurred, but that while petitioner was pulling on the scaffold he suffered a cerebral hemorrhage; and the petitioner having failed to present any corroborating testimony as to the happening of an accident; and it appearing from the medical testimony in the case that the petitioner was suffering from arterio sclerosis in an advanced stage and high blood pressure; and it also appearing by the petitioner’s own medical witnesses, Drs. Ambrose E. Dowd and Andrew T. Ruoff, that the petitioner might from his condition have suffered a cerebral hemorrhage regardless of what he was doing at the time, and Dr. Dowd having further testified that in his condition he might have suffered the cerebral hemorrhage while in bed; I find and determine that the petitioner’s injuries were not caused by an accident arising out of and in the course of his employment, but that he suffered an injury from other than accidental causes; and it is hereby ordered that the petition in the above-entitled cause be dismissed.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    KATHERINE SCHEIDELL, PETITIONER, v. H. BRADFORD RICHMOND, TRADING AS STRAND HOTEL, RESPONDENT.
   The petition is filed by Katherine Seheidell, against II. Bradford Richmond, trading as Strand Hotel, engaged in the hotel business at Atlantic City, New Jersey, for compensation, burial expenses, &c., under the provisions of the Workmen’s Compensation act of New Jersey, its amendments and supplements.

Said Katherine Seheidell was the wife of Frederick Seheidell, on February 27th, 1928, both living together, and she dependent upon said Frederick Seheidell for her maintenance. Said Frederick Seheidell was at that time and for several years previous, in the employ of the Strand Hotel, working as a painter. On or about February 27th, 1928, he was assigned by his employer to paint a bathroom in said hotel. Arriving at the place where he was to work at about two-thirty p. ir., the said Frederick Seheidell started to paint said bathroom from a ladder at the window of said room. At about two-fifty p. m. a fellow worker entered the bathroom where the said Frederick Seheidell had been working and found him in front of the window in said room in an unconscious condition. A fellow worker, who had been with the said Frederick Seheidell, prior to his beginning the painting of the bathroom where he was found in this condition, they having been working together in the paint shop of the said hotel, testified that the said Frederick Seheidell was apparently in normal health. The petitioner’s physician, who examined the said Frederick Seheidell, testified that in his opinion the said Frederick Seheidell died as a result of an accident. Upon examining the said Frederick Seheidell, the doctor testified that he found a mark of violence on the temple, evidence of a blow at the base of the skull, together with bleeding at the ear, bruises along the spine and a. lacerated heel. The doctor testified that it was his opinion that the said Frederick Seheidell met with an accident, taking-into consideration the fact that the said decedent was apparently in normal health at the time he began to paint in the said bathroom. The said Frederick Seheidell did not. again regain consciousness and as a result of the accident died on March 4th, 1928. Respondent employer had notice-of the accident shortly after the happening of the same. The weekly wages of deceased were $20.77. Respondent contends that the decedent did not - receive the injury which causd his death in an accident, but died from natural causes.

From the facts as they appeared in this case it is reasonable and warrantable to assume that an accident occurred to the petitioner’s husband, and a comparison of the testimony given by Dr. John J. Riley and that of Dr. David Allman and Dr. James Mason, the two doctors who were produced by the respondent, indicates that to dismiss this claim, all of the testimony of the petitioner’s medical witness must be discredited; whereas, if an award be given such determination will not be directly contrary to the testimony of the respondent’s doctors in that their conclusions were based wholly upon hypothetical questions.

In addition to this, it was testified that the said decedent was in normal health prior to the happening of this accident throughout the morning and the dinner hour, and that twenty minutes after he resumed his work the decedent was found in an unconscious condition, all of which tends to establish the fact that some untoward event had occurred.

Therefore, I am of the opinion that the petitioner is entitled to receive compensation in accordance with the prayer of the petition.

* * * * * * * ■

W. E. Stubbs, Deputy Commissioner.


author: Charles E. Ookbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN P. ARMSTRONG, PETITIONER, v. RAILWAY MAINTENANCE CORPORATION, RESPONDENT.
    Eor the petitioner, McCarter & English.

    Eor the respondent, Collins & Corbin.

   i'fi i{i %

That on October 10th, 1926, Barclay B. Armstrong was regularly employed by the above-named respondent at Millstone Junction, near New Brunswick, New Jersey, at a wage of $175 per month. On said date, said Barclay B. Armstrong, while in and about his work for the respondent, was struck and almost instantly killed by a railroad train at the above-mentioned place, said accident arising out of and in the course of his employment with the respondent. Those partially dependent upon him at the time of his death were his father, John P. Armstrong; his mother, Regina Armstrong, and a sister, who was over sixteen years of age at the time but who was unable to work. All of these people were part of decedent’s household at said time.

Said Barclay B. Armstrong had only worked fox the respondent for ten days prior to his death and as a result had not actually been paid by the respondent at all prior to his death. Eor five days prior to his working for respondent he had worked for the Pennsylvania railroad and had not been paid by this company either for that time prior to his death. His employment immediately prior to working for the railroad was on a golf course near his home in Newark, Delaware, and his wages in that employment were $100 a month, all of which wage he gave his mother toward the support of his father, his mother, his sister and himself. It is on this wage of $100 a month that the rate of compensation is fixed and with it as a basis and taking into consideration that the $100 a month included his own support, the rate of compensation is determined to be $6.92 per week, making the award for compensation in the case three hundred weeks at $6.92 a week to be paid the above-named petitioner for the dependents in this case. Euneral expenses amounted to over $150, therefore $150 is allowed the petitioner in accordance with the statute made and provided for the funeral expenses. A counsel fee of $100 is allowed the attorneys for the petitioner, to be paid by the respondent.

* * * ❖ * ❖

Charles E. Ookbin, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SELMA VAN VLADRICKEN, PETITIONER, v. WILLIAM SIMPSON, RESPONDENT.
   2. Whereas on the 29th day of November, 1926, the petitioner’s decedent suffered an accident while getting off of one of the respondents motor trucks, in which his foot was badly smashed, so that the hones protruded from the ankle joint, which was bleeding at the time of his admission to the Hackensack Hospital, and

3. Whereas death was directly caused by a pulmonary embolus, which resulted from the injury received by the petitioner’s decedent, and

4. Whereas the evidence submitted in this ease shows that the petitioner’s decedent on the morning of the alleged accident was picked up by an employe of the respondent named James Tiebant, who was operating a truck for the respondent at the time, for the sole purpose of giving the petitioner’s decedent a ride, and

5. Whereas it further appears that the petitioner’s decedent was doing no work for the respondent and was not assigned by the respondent to the truck, upon which he was riding, to do anything toward carrying out the business of the respondent, and

6. Whereas it further appears that the petitioner’s decedent had lived and slept in a house owned hv the respondent for a period of eleven months and some days, which fact corresponds to the testimony of the petitioner that she and the petitioner’s decedent had been separated for the same period of time, and

7. Whereas it further appears that the petitioner’s decedent had never been a regular employe of the respondent, but had merely done odd jobs for the respondent from time to time, when the petitioner’s decedent was not otherwise employed and when the respondent had odd jobs for him to do, and

8. Whereas it appears that the petitioner’s decedent was not engaged in the emplojunent of the respondent at the time of the accident, which caused the injury, from which he died.

I, therefore, find that the petitioner is not entitled to compensation from the respondent, inasmuch as the petitioner’s decedent was not employed by the respondent at the time that he received the injury, which caused his death, but was merely riding on one of the respondent’s trucks with the permission of the respondent.

I, therefore, order that the petition filed in the within case be dismissed and that a judgment be entered in favor of the respondent.

Harry J. Goas, Deputy Commissioner.