author: Lawrence, J.

text:
    Monmouth County Circuit Court.
    ALEX. BEHR, PLAINTIFF (CLAIMANT), v. INTERLAKEN CONSTRUCTION COMPANY, A CORPORATION, AND HERMAN J. SCHAFFER, LEO L. KOEPPEL AND ABRAHAM WEINSTEIN, BUILDERS, AND INTERLAKEN ESTATES, INCORPORATED, AND HERMAN J. SCHAFFER, LEO L. KOEPPEL AND ABRAHAM WEINSTEIN, OWNERS, DEFENDANTS; GRASSMERE DEVELOPMENT COMPANY, BODY CORPORATE, AN OWNER, ADDED AS PARTY DEFENDANT.
    For the plaintiff, Jerome Alper.

    For Interlaken Estates, Incorporated, Samuel Kaufman (.Bilder & Bilder).

    For Grassmere Development Company, Turnen & Turnen.

   Lawrence, J.

This is a mechanics’ lien suit. When brought to trial before the court and a jury, it was withdrawn from further consideration by the latter, by consent, and submitted to the trial judge for determination on the testimony, evidence and exhibits offered and received, on a finding of facts and the law regarded as applicable.

On March 21st, 1928, plaintiff filed a mechanics’ lien claim against certain buildings and the land upon which they stood, as described therein, against the defendants as build'ers and owners, to recover $7,875, alleged to be due. The defendant construction Compaq and the individuals joined with it and designated in the claim and complaint as builders filed no answers, and it is assumed that judgment generally by default will be, if it has not already been, entered against them.

The controversial question is whether plaintiff is entitled to special judgment against the land, owned at the time by defendant Interlaken Estates, Incorporated, title to which at the trial was shown to be in the Grassmere Development Company, body corporate, which was permitted to be added as a defendant. The answers of these defendants deny plaintiff’s right to a lien on the land and its reduction to special judgment against them as owners.

The suit arises in the following circumstances: On September 29th, 1927, the defendants, Schaffer, Koeppel and Weinstein, entered into a written contract with Interlaken Estates, Incorporated (the owner), for the purchase of a tract of land which had been mapped and divided into lots, upon which they contemplated building a number of houses. The consideration involved the payment of certain sums in cash and the execution of purchase-money mortgages. A number of other provisions relating to the securing of the purchase-money and the eventual payment were incorporated which need not be referred to specifically. It may be said, however, that on the payment of $24,000, on October 28tb, 1927, Interlaken Estates, Incorporated, agreed to deed to the purchasers certain of the lots; and on the payment of $25,000 on January 28th, 1928, other lots and tracts were agreed to be conveyed, while purchase-money mortgages for $55,750 each were to be executed at stipulated periods. An important modification of the agreement was made by the parties on October 27th, 1927, by an endorsement in writing, signed by them (see exhibit marked “Duplieate-P-2”), whereby the delivery and execution of the agreement was extended to November 25th, 1927, with the understanding that $12,000 of the payment due and payable October 28th, 1927, should be paid on or before November 11th, 1927, the balance of such stipulated payment to be payable upon the delivery of the deed on November 25th, 1927.

A recital in the agreement was to the effect that it was understood that the purchasers intended to erect houses on the lots mentioned (one house on no less than fifty feet) and to place a first mortgage on the premises not to exceed $7,000; therefore it was further understood that the purchase-money mortgages would be subordinated and Interlaken Estates, Incorporated, would accept a mortgage of $650 on each house as erected, which would be credited on such purchase-money mortgages. It was then stipulated that the purchasers might take possession of the premises on the execution of the agreement, and within one week from the date thereof begin the erection of houses, not to exceed twenty-five. The agreement was accordingly executed and Schaffer, Koeppel and Weinstein (the purchasers) entered into possession of the tract of land involved, but were apparently unable to make the cash payment first stipulated, and secured the extension for the “delivery and execution of this agreement” to November 25th, 1927, subject to the cash payment of $12,000 on November lltli, 1927, and the balance of such payment on November 25th, 1927.

After taking possession, whether before or after October 27th, 1927, the date of the extension agreement, does not appear, the purchasers, in the name of the Interlaken Construction Company, contracted with the plaintiff (a boss carpenter) and others for the necessary labor and materials for the erection of the houses contemplated in the agreement for purchase. Plaintiff testified at the trial that with a gang of workmen employed by him he went to the premises during the second week in October, 1927, and began work and continued until November 22d, following, such work involving fifteen houses. On the latter date he was obliged to quit for the reason that he and his men were not being paid, and, as his statement goes, it would indicate that very little money was paid Mm. In other words, it developed that not only did Schaffer, Koeppel and Weinstein—the Interlaken Construction Company—fail to pay plaintiff for his work and labor; but they were unable to raise the funds required to meet their obligations to Interlaken Estates, Incorporated, under the sale agreement, and the extension, and it was thereupon breached and canceled, prior to the filing of the mechanics’ lien claim in the present suit. When this occurred, some' of the houses had been substantially completed and others were left in an unfinished state. Interlaken Estates, Incorporated, later sold the property as it stood to Grass-mere Development Company, which undertook to complete the unfinished houses and to go forward with the development of the tract, but was unable to do so, and the premises are now ’being subjected to foreclosure proceedings which have reached the point of reference to a special master for sale.

It is urged on behalf of plaintiff that he is entitled to more than a general judgment against the persons with whom he made his contract, that is to say, that he should have a judgment specially against the land on which the houses on which he and his men worked stand. It is argued that under section 7 of the Mechanics’ Lien act {Pampli. L. 1898, p. 538) his claim finds support, since the agreement for sale contemplated the erection of the houses, and by its terms a written consent on the party of the owner—Interlaken Estates, Incorporated—may be inferred in the same manner as though it had been actually given to him in writing, or so made for his benefit. If this be so, then it is contended that he is entitled to a judgment specially against the land, not merely a general judgment against the persons with whom his contract was admittedly made.

Since this appears to be the primary question of law involved in the ease, disposition of which will settle it as submitted, other question, such as whether the claim was filed in time, under the statute, and the amount really due, have not been considered.

Has plaintiff, therefore, proven such a written consent as is required by section 7 of the Mechanics’ Lion act? Such a consent, in other words, as will justify a special judgment against the land in question? Does, in fact, the sales agreement indicate such a consent on the part of the owner ?

A fair and satisfactory interpretation of the section will be found in Luce’s New Jersey Mechanics’ Lien Law (3d ed., 1923), p. 186, where it is said that “the consent required under sections 7, 9, 10 or 11 must lie such as clearly shows that the owner intended that his lands should be subjected to a possible lien for the contemplated work, or for the contemplated indebtedness. It must amount to a guaranty. While no particular form of words is necessary, the statutory requirement that such consent must be in writing indicates that the writing must contain words which unequivocally express such an intent. It would seem, therefore, that a writing would be insufficient if it merely expresses the owner’s consent that the tenant, or other person, shall erect a building on his lands, but says nothing pro or con as to who is to pay, or be chargeable therefor; and that it could not be helped by parol proof of intent, or implication from circumstances, in such case.”

A careful examination of the sales agreement in the present case, coupled with the extension of the date for the “delivery and execution,” does not disclose an intent on the part of the owner—Tnterlaken Estates, Incorporated—that its land should be subject to a possible lien or a consent to the erection of the houses thereon within the purview of section 7 of the Lien act. In fact, it now appears that the work and labor for which plaintiff seeks a recovery was performed before the date for “delivery and execution” of the agreement under tire extension, and before the purchasers had made any payment whatever on account of the purchase price of the property. The suggestion on the argument that the erection of the houses was a,condition of the sales agreement seems neither to be warranted nor a natural inference. What it does appear to indicate1 is that the houses as erected were to be paid for by the purchasers of the land—the so-called Weinstein interests—who were to be permitted to mortgage them and the land on which they stood for $7,000; Interlaken Estates, Incorporated, agreeing to subordinate the purchase-money mortgages thereto, taking in place thereof, as a credit, a subsequent mortgage on each house for $650, apparently as security for the purchase price of the lot on which it stood. Inasmuch, therefore, as the purchasers were to be responsible for raising the money with which to erect the houses, the situation is not unlike that indicated in Hervey v. Gay, 42 N. J. L. 168, where it was held that the written consent, which under the Lien law will bind the land of the owner—in that case, repairs—contracted for by the tenant, must be absolute in its terms. It is obvious, however, that the erection of the houses under the present agreement was to be entirely at the purchasers’ risk, for the reason that if they failed—as they did—to make the cash payments stipulated on account of the purchase price of the land, they were apprised in advance that they would lose their interests, not only in the land but in the buildings which became when erected a part of the real estate. Plaintiff likewise was charged with knowledge of such a potentiality. In Mackintosh v. Thurston, 25 N. J. Eq. 242, it was said that even though the vendor agree, under the contract of purchase of land, to furnish the vendee funds for the erection of buildings upon the premises, it was not such a consent as would make the land liable to a provision similar to section 7 of the Mechanics’ Lien act, but if it was such consent, the lien in such ease must be subject to all liens incurred by the purchaser, which by the sale contract were to be discharged before conveyance. See, also, Babbitt v. Condon, 27 N. J. L. 154.

In Associates v. Davison, 29 N. J. L. 415, it was said that the “Lien law, so far as it operates to charge the lands of a party with a debt not contracted by him, or for his ultimate benefit, should be strictly construed. Such is the case when it is sought to charge the lands in pursuance of a consent in writing, where it can be charged in no other way. The owner of land who permits a building to be erected by another upon it, has this protection; until he consent explicitly in writing to have it become subject to the provisions oí the Lien lawn his land cannot be held. The law exempts it until that consent is given, upon the plainest principles of natural justice, that one man’s property shall not be taken to pay another’s debts. * * * Materialmen and others may protect themselves, if they rely upon a lien for payment, in that they may require an explicit consent to be signed and delivered, and also acknowledged and recorded, before they give credit. No injustice is done them by refusing them a lien on the lands of a stranger against the intention of. the parties to a paper drawn for an entirely different purpose.” ' See, also, Currier v. Cummings, 40 N. J. Eq. 145; Hervey v. Gay, supra; Murphy v. Hussa, 70 N. J. L. 381; the discussion and cases cited by Mr. Luce in his book (supra, pp. 180, et seq.), and as to the nature of the consent required. Grantwood Lumber Co. v. Abbott, 80 N. J. L. 564; affirmed, 83 Id. 782.

The court has not stopped to consider in detail the testimony of the plaintiff at the trial in the present suit to the effect that Mr. Morgan, the secretary of Interlaken Estates, Incorporated, had by verbal statement guaranteed that he, the plaintiff, would be paid if he continued his work, or at least had in some way bound the corporation whereby the court would be justified in directing that a judgment should be specially entered against the land described in the lien claim. It is not perceived that it suffices to establish the necessary written consent contemplated or required by the Lien act, since whatever the conversations may have been, they apparently occurred after plaintiff realized that payment for his work was precarious and he either had or was considering stopping it. Moreover, the suit is not brought, on any alleged guaranty made by one with authority to speak for Interlaken Estates, Incorporated, but is made to resi entirely on the provisions of the Mechanics’ Lien act, particularly section 7 thereof. In fact no such guaranty is now claimed. In any event, it would seem that plaintiff can take nothing of the alleged conversation with Mr. Morgan. Strong v. VanDeursen, 23 N. J. Eq. 369.

Finally, it' is to be observed that under the sales agreement, the permission -given the purchasers to execute mortgages on the houses as erected and the land upon which they stood, to which the purchase-money mortgages, in part, were to be subordinated, was conditioned on the making of the cash payments on account of the purchase price of the land as stipulated. Should default be made in that particular, as it was, the purchasers were not entitled to a conveyance of the land, and without it, naturally they could not negotiate the building mortgages and the purchase-money mortgages would not come into existence. On the contrary, the sales agreement would be forfeited and canceled, as it. was. If it be true, therefore, as argued, that the houses were to be paid for with the proceeds of the mortgages, it seems equally clear that the owner of the land had no intention of subjecting it to mechanics’ liens by an inferable consent under the terms of the sales agreement, and so give priority to such claims, creating as it were a greater right or privilege than the purchasers had. Clark v. Butler, 32 N. J. Eq. 664, 669.

In the circumstances, it is the court’s conclusion that plaintiff failed to prove that the written consent of the owner of the land within the intent and meaning of section 7 of the Mechanics’ Lien act was obtained by him, or by anyone for his benefit. He is not, therefore, entitled to judgment specially against the land in question.

A rule may accordingly be submitted discharging the lien and directing a judgment of no cause of action in favor of the defendants Interlaken Estates, Incorporated, and Grass-mere Development Company, body corporate, and against the plaintiff.


source: Caselaw Access Project

author: Harry J. Goas, Deputy Oommissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARGARET THORBURN, PETITIONER, v. L. BAMBERBER & COMPANY, RESPONDENT.
   This matter coming on before the court and it appearing to the court that the petitioner filed a formal petition and an answer was filed by the respondent denying that the accident alleged in petition arose out of or during the course of her employment, and the petitioner testified that she was employed by L. Bamberger & Company as a waitress, and that on May 28th, 1928, one of the other waitress’ arm hit her in the breast and she did nothing about it for a week or ten days and later felt a pain there and reported to the hospital at Bambergers and the doctor there treated the condition and it got worse and she then went to Dr. Charles M. Robbins, and he operated on petitioner for cancer and removed the entire left breast.

Dr. Charles M. Robbins was sworn in and testified that he did operate on the petitioner and that in his opinion she was suffering from a cancer which was of a longer standing than the May, 1928, alleged accident, and that in his opinion the cancer was not the result of a trauma but that it was possible that a trauma might aggravate a dormant cancerous condition. The doctor is of the opinion that this cancer was quite extensive and could not possibly have resulted from the injury received in May, 1928.

The matter was settled between the parties wherein the petitioner was to receive and the respondent agreed to pay the sum of $650 net in one payment and assume the bill of Dr. Robbins in the amount of $350 and the hospital bill in the sum of $115.50, and the attorney for the petitioner, Mr. Kessell, is to be paid the sum of $125 by respondent.

The respondent, without admitting or denying the accident and without admitting or denying liability, agrees to pay the foregoing figures in full and final settlement of the disputed question as to whether or not this condition was a result of the accident alleged by petitioner, and the petitioner in consideration therefore agrees to accept said sum of money in full and final settlement of all claims which she now has against L. Bamberger & Company on account of her present condition and agrees that at no time will she make a claim for further compensation on account of this accident.

I, having heard the testimony in open court and having explained to the petitioner the terms of the settlement and she having agreed thereto without any reservations of any kind, it is therefore * * * ordered that the respondent pay to the petitioner the sum of $650 in one payment and that the respondent further pay Dr. Robbins’ bill of $350, hospital bill of $115.50, and the attorney for the petitioner, Mr. Kessell, the sum of $125 in full and final settlement of all claims arising out of this alleged accident, and I approve of the settlement above set forth.

Harry J. Goas, Deputy Oommissioner.


author: Per Curiam.

text:
    EMMA B. WANNER, PLAINTIFF, v. COLUMBIA CASUALTY COMPANY, DEFENDANT.
    Submitted May term, 1929
    Decided August 28, 1929.
    Before Justices Parker, Black and Bobine.
    For the plaintiff, McCarter & English and Arthur F. Egner.

    For the defendant, Kalisch & Kalisch.

   Per Curiam.

This' suit was brought to recover $8,000 under a policy of insurance dated the 31st of December, 1924. The policy insured John C. Wanner, the husband of the plaintiff, from bodily injury effected solely through accidental means and against death, caused by such accidental means. John C. Wanner died on July 3d, 1927, caused as is alleged in the complaint, through accidental means, while the policy was in force. The answer filed was a denial and two separate defenses, viz., falsity of statement in the application and the maximum amount, which can be recovered due to classification of the risks. The trial resulted in a verdict for the plaintiff for $8,516. The defendant obtained a rule to show cause from the trial court and writes down twenty-five reasons for a new trial. Our reading of the record and the briefs of the respective counsel lead us to the conclusion that none of the reasons are sufficient’ to justify this court in disturbing the verdict of the jury. The first seventeen, except No. 7, charge error in the trial court’s refusal to permit certain specified questions put to witnesses by the counsel for the defendant as error. These reasons call for no extended discussion. Nos. 1 to 6 are abandoned in the defendant’s brief. The others are without legal merit. Nos. 18 and 19, error by the trial court in refusing to nonsuit the plaintiff or direct a verdict for the defendant. The rulings of the trial court in these respects were not error, questions of fact for the determination of the, jury were involved. Nos. 20 and 21, error by the trial court in refusing to charge defendant’s request. These were also abandoned in the defendant’s brief. We find no error in Nos. 22 and 23, i. e., alleged error in the charge of the trial judge to the jury. No. 24 is abandoned. No. 25, the verdict of the jury was against the weight of the evidence, not so.

It may be pertinent, however, to refer more fully to No. 7, viz., alleged error by the trial court in refusing to permit the' defendant to put in evidence the printed “Manual,” which embodied the classification of risks, rights and premiums of the defendant company for accident insurance. Nowhere in the policy is the “Manual” mentioned. The policy does, however, provide: “This policy includes the endorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company’s classification of risks and premium rates in the event that the insured is injured after having changed occupation.”

Under this clause, it is argued the printed “Manual” was admissible in evidence. It may be said if there is any ambiguity, that is to be resolved against the defendant company. Clayton v. General, &c., Assurance Corp., 104 N. J. L. 364. In addition to this, the point may properly be disposed of by the statement made by the trial court, with which we concur, viz.:

The court—“I think the proper way to prove it, i. e., the manual, is to prove it by the corporate action of the company adopting this as its manual.” Mr. Kalisch—-“There is no evidence before your honor to indicate that there is a corporate action.” Record, page 4.3, line 7. * * * The court—“We are faced with this proposition.” Mr. Kalisch— “That this policy refers to a certain manual. This witness comes in and produces the printed book and says lie uses his judgment up to a certain maximum and then lie uses this book, but ho has not proved this hook as yet, so I cannot allow him to testify to it.” Record, page 45, line 20.

The rejection of this piece of evidence, however, was not injurious to the defendant, in view of the charge by the trial judge to the jury. Its purpose was to show that a higher premium was charged for the insurance, if the insured’s occupation was changed to one that was more hazardous, such as a dealer in wild animals, in which ease the company’s, liability would bo reduced. The plain charge of the trial judge was, that if the deceased was in the wild animal business there could be no recovery; so, in addition thereto, the trial judge charged the defendant’s second, third and fourth requests covering this point more fully; hence, under this charge, the rejection of this piece of evidence could have had no influence upon the verdict to be rendered by the jury on this point.

The rule to show cau.se is therefore discharged, with costs.


text:
    GUSSIE REICHNER ET AL., PLAINTIFFS, v. SAMUEL T. DAVIDSON, DEFENDANT.
    Decided September 5, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the applicant, Weinberger & Weinberger.

    For the respondent, Feder & Rinzler.

   Per Curiam.

We have examined with care the petition and find it to be without merit.

The result is that the application for a rehearing is denied.


author: Losche, J.

text:
    Fifth District Court of Bergen County.
    ANNA C. ELLIS, PLAINTIFF, v. ALFRED J. McDERMOTT, DEFENDANT.
    For the plaintiff, E. R. Weller.

    For the defendant, Herman Vanderwarl.

   Losche, J.

This was an action to recover rent for the months of November, 1927, to March, 1928, inclusive, under .a written lease dated March 1st, 1927, made by plaintiff, landlord, to defendant, tenant, for the term of “thirteen months commencing the first day of ......., 1927, and to end at noon on the thirty-first day of March, 1928;” in which the defendant covenanted and agreed to pay the plaintiff “the term rent or sum of eight hundred and forty-five [$845] dollars in equal monthly payments of sixty-five [$65] dollars each on the first day of each and every month .and in advance until the expiration of the term of this lease, March 31st, 1928.”

The defendant filed specifications of defenses setting up a constructive eviction.

The action proceeded to trial before the court without a jury on July 24th, 1929.

The plaintiff offered evidence to the effect that the defendant vacated the demised premises on October 1st, 1927 ; that the rent for the period to and including October 31st, 1927, had been paid by defendant, the last rent having been paid on October 1st, 1927, but that the rent for the months' of November, 1927, to March, 1928, inclusive, was not paid,, although duly demanded.

The plaintiff thereupon offered to prove, in mitigation of damages, efforts to rent the premises but the court excluded it on the ground that such evidence was not a necessary part of plaintiff’s prima facie case in view of the fact, that the lease contained a covenant on the part of the tenant—■ “8. Not to let, under-let or assign the premises, or any part thereof, except by written consent of landlord or agent.”' Citing Muller v. Beck, 94 N. J. L. 311.

There was no covenant of quiet enjoyment in the lease. The words used are: “* * * the said landlord hereby agrees to let, and the said tenant agrees to, and hereby takes and hires, * * In the face of such a lease there can be no implied covenant of quiet enjoyment. Mershon v. Williams, 63 N. J. L. 398; May v. Levy, 88 Id. 351. Notwithstanding the language used in Meeker v. Spalsbury, 66 Id. 60 (at p. 64), and Metropole Construction Co. v. Hartigan, 83 Id. 409 (at p. 411).

The building in question was a two-family apartment house, the plaintiff occupying the first floor and the defendant the second floor. The Osborn house adjoined on the one side about six or eight feet away and likewise the Bestel house, adjoined on the other side. The building, according to defendant’s wife, was like a shell.

The defendant offered evidence to the effect that—

There was rattling of dishes in plaintiff’s apartment for about fifteen minutes almost every night between ten p. m. and one a. m.

There was rattling of the garbage can cover almost every night between the same hours, for a'few minutes; defendant’s daughter said it was a matter of seconds. There was no evidence indicating who did it except that on two or three occasions the defendant saw the plaintiff rattling it.

The doors, windows and window screens were slammed between the same hours; but there was no definite evidence as to how long the slamming continued.

The pulley line, which was squeaky, was drawn by the plaintiff for the purpose of hanging out her stockings which she washed almost every night.

There was loud talking and arguing in plaintiff’s apartment; but the evidence was conflicting as to how long the arguments continued; defendant’s wife testified that “one special argument lasted for five minutes;” and witnesses for the defendant, Mr. Osborn and Mr. Bestel, testified that one hour was the usual length of the arguments, but these two witnesses were clearly biased.

The defendant, his wife, his daughter, Mr. Bestel and Mr. Osborn testified that the said disturbances occurred nightly for about five nights a week between ten p. m. and,one A. m. during the space of about one hour and one-half.

Defendant, defendant’s wife and Mr. Osborn each testified to a separate insulting remark uttered by the plaintiff, and there was testimony that the plaintiff mimicked defendant’s wife and daughter.

A letter dated August 1st, 1927, addressed to plaintiff by defendant was received in evidence on defendant’s offer. It advised plaintiff of defendant’s intention to vacate on October 31st, 1927, because of the noises complained of, and added significantly: “If in the meantime you can get a tenant for this flat, it will be open for inspection at all times. We will gladly vacate at your convenience.”

There was some evidence that the plaintiff stated that she wished that the defendant would vacate the premises. This, however, was definitely counteracted by plaintiff’s letter of September 23d, 1927, in reply to defendant’s letter of August 1st, 1927, which was received by the defendant prior to his removing from the premises and which advised defendant that he would be held for the rent for the full term of the lease.

There was evidence that the defendant on June 20th, 1927, purchased a plot of land in Teaneck and had built a house thereon, to which he and his family removed upon vacating the plaintiff’s house.

Defendant and his wife testified that after the receipt by plaintiff of the letter of August 1st, 1927, the disturbances quieted down and, to use defendant’s own words, there was “very little noise after August first.” Later he testified that the noise increased in volume after an interval of about three weeks.

It is significant that defendant’s witness, Miss Reddy, a trained nurse who boarded with the defendant, was able to endure all of the alleged disturbance and did not leave the defendant’s apartment until the defendant, himself, moved with his family to Teaneck.

In Birckhead v. Cummins, 33 N. J. L. 44, Chief Justice Beasley said: “The legal effect of eviction is so penal that the doctrine is not to be favored; * *

In Meeker v. Spalsbury, 66 N. J. L. 60 (at p. 63), the court, quoting from Upton v. Townsend, &c., 17 C. B. 30, stated that eviction must be “not a mere trespass, but something of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises,” and that it is “an act of a permanent character done by the landlord in order to deprive, and which had the effect of depriving, the tenant of the use of the thing demised, or of a part of it.”

The court states further, at page 64: “This definition has • been generally approved in this country.”

I am satisfied that defendant was annoyed by some of plaintiff’s actions. Undoubtedly, plaintiff is possessed of some idiosyneracies which, I can appreciate, might have caused some neighborly antagonisms. However, I am not convinced that plaintiff was the only disturbing element in the neighborhood. There was evidence that the garbage can cover was rattled by prowling cats; that there were noisy children in the Osborn house; that there were noisy boarders in the Bestel house, and that there were building operations in process across the street in the new People’s Trust and Guaranty Company’s nine-story steel building. While, it is true, the defendant has not complained of these latter items, the evidence of them indicates that the neighborhood was not. the calm and peaceful hamlet wherein every movement or sound made by the plaintiff stood out in bold relief.

In considering the whole ease, I am not satisfied that there was sufficient noise or disturbance on the part of the plaintiff to fulfill the requirement of the law that there should be “something of a grave and permanent character” in order to constitute a constructive eviction of the defendant.

Furthermore, the defendant, his wife and daughter claimed that the noise and disturbance on the part of the plaintiff started the very day in March, 1927, when they moved into the premises and continued throughout their occupancy (except for the surcease in August) until they vacated on October 1st, 1927.

The law is clear that the tenant has only a reasonable time after the alleged eviction within which to exercise his right to vacate the premises, and if he fails to do so, he loses that right. Certainly, the defendant’s occupancy from March until October 1st, during practically all of which time the alleged cause of abandonment continued, would operate as a waiver.

In 16 B. C. L. 949 it is stated: “If, however, the tenant makes no surrender of the possession, but continues to occupy, after the commission of the acts would would justify him in leaving, he will be deemed to have waived his right to abandon and he cannot sustain a plea of eviction by showing such circumstances.”

See, also, Matropole Construction Co. v. Hartigan, 83 N. J. L. 409, foot of page 414.

Under the circumstances, the expression of the court in Gunther v. Oliver, 97 N. J. L. 376; affirmed, 98 Id. 563 (at p. 378), is apposite to this situation:

“If the tenant, Oliver, had the right to abandon the leasehold he ought to have done it promptly. The trouble of which he complained began with the beginning of his tenancy and he did not feel compelled to abandon it until he had had the benefit of eight months’ occupation out of ten.”

These views lead to the conclusion that judgment should be entered in favor of the plaintiff and against the defendant in the sum of three hundred and twenty-five ($325) dollars, with costs.


author: Chables E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EMMA BROGLEY, PETITIONER, v. JOHNS-MANVILLE COMPANY, RESPONDENT.
   This is the case of a man, the petitioner’s deceased, who was employed as a barber in the barber shop which the respondent company maintained at its hotel at Manville, New Jersey. Said petitioner’s deceased left his home * * * bound for his place of employment. The testimony produced in the case shows the petitioner’s deceased at that time bore no cuts upon his right thumb.

The facts in the case further show that the petitioner’s deceased worked all day Friday, February 11th, 1937, and remained that night at the hotel, of the respondent, where he continued to work in the capacity of a coat tender, retiring late that night to a room furnished by respondent for petitioner’s use. The following morning, Saturday, February 13th, 1938, he again engaged in the pursuit of his employment as a barber for the Johns-Manville Company.

By stipulation of counsel it was agreed that the petitioner’s deceased remained at his employment on Saturday, and ate his noonday meal at respondent’s hotel, and then went home.

Immediately upon the arrival of petitioner’s deceased at his home, Saturday afternoon, it was discovered by members of the family that he wore a bandage about his thumb. Testimony as to what he told the members of his family, in response to their queries as to what was the matter with his thumb, was ruled out by me as hearsay and not properly admissible. However, the members of petitioner’s decedent’s family did testify that there was an incised wound upon his right thumb, which had not been there when the deceased left for the plant on Friday morning. They further testified that the wound was not bleeding, nor was there any fresh blood on the bandage, which would indicate that the wound was of recent origin.

The doctor, who treated the petitioner a short time after the accident, testified the petitioner told him that he had cut his thumb with a razor at the barber shop.

At this stage of the case it might be suggested that the only place the petitioner could have sustained the cut, in view of the facts in the case, and the only method whereby the petitioner could have sustained a cut, of the character the petitioner’s decedent had, was at the barber shop, while employed with a razor. The court will take judicial notice that it would be very improbable that the petitioner’s decedent cut himself with a razor anywhere other than where he was engaged in using the razor, to wit, the barber shop, of the Johns-Manville Companjn

There is no cpiestion in the case but that the death of the petitioner’s deceased resulted as a consequence of infection in the incised wound of decedent’s right thumb, which caused a blood poison, resulting in his death. The only fact in issue, and the crux of the present case, is where and by what means the petitioner’s deceased met his death.

The innuendo of the respondent that the wound was possibly from a splinter or some such cause, was ruled out by the doctor who appeared on behalf of the petitioner, who stated emphatically that it was a sharp incised wound, and was not such as would be caused by a splinter. The fact that the wound was dry, not bleeding, and the bandage showed no signs of fresh blood, when the petitioner’s decedent arrived home after leaving the plant when finished with his noonday meal, leads to the inevitable conclusion that the wound must have occurred at some little time previously, certainly much longer than it would take the petitioner to get from the plant to his home. It was stipulated, as stated above, that the petitioner’s decedent left the respondent’s plant after the noonday meal on Saturday. The testimony in the case is that he arrived home at about two o’clock. Certainty, if the wound had occurred in transit there would have been evidence of bleeding on the wound, or else fresh blood upon the bandage. This feature has considerable Aveight as to the time of the occurrence of the said wounding.

On the question of where the wounding occurred, by a process of elimination and deduction, and by the surrounding elements in the case, it can, with reasonable certainty, be said that the petitioner’s deceased sustained the incised wound of the right thumb at the plant of the respondent companjq while engaged as a barber in the barber shop in said respondent’s hotel. The character of the wound, the fact that the petitioner did not have it Avhen he started for work in the morning, and had it when he returned home following his employment, and the fact that his employment AAras that of a barber, where the use of a razor is the chief prerogatiAre of the employe, is coupled with the fact that the doctor’s testimony that he treated the petitioner’s decedent, that the petitioner’s decedent told him he had cut his thumb with a razor in the barber shop. If any more was necessarjq certainty this, under the late case of Wilhelmi v. American Railway Express Oo. is ampty sufficient to found an award in favor of the petitioner and against the respondent, by the preponderance of the eAddence, and with all reasonable certainty.

In vieAV of the case of Minard v. West Jersey, &c., Co., 74 N. J. L. 39, AAdiere the court said that circumstantial evidence is very often the only kind of proof obtainable, and that where the circumstances which have been proven in the case furnish sufficient ground for the jury to find that it was reasonably probable that the accident arose in the manner that the plaintiff alleged, the verdict would not be set aside, I have no hesitation in stating that the surrounding facts in this case of-—(a) the petitioner’s decedent leaAÚng his home, bound for his employment, without any cut on his thumb; (b) his remaining at his place of employment until the following day after the noondajr meal; (c) his employment at the plant during the daytime of Friday and Saturclay as a barber, his regular occupation; (d) his arriving home shortly after leaving respondent’s plant, with bandage on his thumb which showed no evidence of bleeding in the wound, or fresh blood upon the bandage; (e) the character of the cut which was a sharp incised wound, such as a razor would most likely make, all lead to the conclusion that the only place that it was reasonably probable that the petitioner’s decedent met with his accident was at his place of employment, to wit, the barber shop of the respondent company; and the only way, under the facts elicited in the case, by which it is reasonably probable that the petitioner’s decedent sustained the said trauma, is by the cut of a razor which he was accustomed to use in the pursuit of his occupation as barber. This, to my mind, is amply sufficient upon which to found a verdict for the petitioner by the preponderance of evidence. When you add to this the statement of the doctor, which under the late case of Wilhelmi v. American Railway Express, above adverted to, is admissible testimony, then certainly there can be no doubt whatsoever as to where the accident happened and how it happened.

To go into the numerous English cases and American cases, which hold that circumstantial evidence alone is sufficient to base an award on, would be futile and a waste of time, but a few of the cases in our own state, which held to this effect are Dixon v. Andrews, 92 N. J. L. 512, and Manziano v. Public Service Gas Co., 92 Id. 322; Minard v. West Jersey and Seashore Railway Co., 64 Id. 1054, and also Queen et al. v. Jennings, 93 Id. 353.

I will, therefore, make an award in favor of the petitioner, and against the respondent, as set forth in my determination of facts and rule for judgment hereto attached and made a part hereof.

Chables E. Corbin, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ORILDA LA TERRE, PETITIONER, v. SAMUEL SKILLMAN, RESPONDENT.
   $ 3$ $ K-

The testimony presented by the petitioner sets forth that her late husband had for many years been in the business of painting and paper hanging, and that he formerly engaged in this work as a contractor, but that in later years he took on no work at a contract price but preferred to do work of this character for payment on the hourly basis. Some few days prior to March 29th, 1928, the respondent, who desired to have some painting done at his home, arranged with the deceased to perform the work. It appears from the record that Mr. La Terre was engaged in doing certain painting for two days prior to March 29th, 1928, on which day at twelve o’clock Mrs. Skillman called the deceased to the second floor of her home for the purpose of pointing out further work which she wished to have done in the nature of repairing paper on the ceiling of the second floor. While ascertaining from Mrs. Skillman what was needed to be done regarding this papering, Mr. La Terre inadvertently stepped backward into an open stairway and fell to the first floor, receiving injuries from which he died on March 30th, 1928, in the Somerset Hospital, located in Somerville, New Jersey.

There is no question involved in this ease as to the fact that Mr. La Terre was working for Samuel Skillman and that an accident occurred which resulted in his death. The contention is that this case is one involving independent contractor relationship between the deceased and the respondent. On the contrary it is the contention of the petitioner that her husband did not perform work as an independent contractor, that he worked only on the hourly basis, and ber attorney made every effort, through the presentation of testimony of various witnesses, to establish the fact that the relationship of master and servant existed in this instance and that the deceased was not an independent contractor. The principle testimony presented by him to establish that the deceased was working under the direction and supervision of the respondent or his representative, Mrs. Skillman, is the fact that Mrs. Skillman was actually directing Mr. La Terre at the time that the accident took place, claiming that this very procedure in itself establishes the relationship of master and servant and that the deceased was not an independent contractor operating without the supervision of the respondent.

An analysis of the entire situation as presented by the foregoing brief statements and the other testimony given at the trial leads me to the conclusion that the mere fact that Mr. La Terre was being shown what was to be done does not constitute supervision of the manner in which work was to be done. In every situation of this character, it necessarily follows that the one having the work done must indicate what is to be done. This does not mean that he thereby retains to himself the supervision of the manner in which certain work shall be performed. It is very questionable, therefore, that in this instance the claim of the respondent is upset by the testimony of the petitioner, nor does the statement of the petitioner that her husband did not take work for a contract price establish that he was not a contractor. The manner of making payment for services rendered does not establish whether or not one is an independent contractor. According to the cases, it is purely a question of supervision. One may work by the hour to he paid at the completion of the work according to the nnmher of hours involved without thereby establishing that he is an employe or that he is a contractor.

Aside from the aforementioned phase of this case, there is another element which was not to any extent dwelt upon at the hearing of this case. According to the facts as brought out, the work to be performed was of a domestic nature, namely, the painting of all or a portion of the dwelling of the respondent. This being the case, the relationship between the deceased and the respondent is subject to the provisions of paragraph 23(c) of the Workmen’s Compensation act, which sets forth that if the service rendered is not in connection with any business of the employer, then the employment is casual unless such employment is either regular, periodic or recurring. Quite evident^ one does not engage another in regular employment for the purpose of painting his house or an3r portion thereof, neither can it be held that such employment is periodic as is the case with a laundress who comes regularly on a stated day in the week for the purpose of doing the weekly wash, nor is it recurring such as might be the case where a lawn is to be mowed, not at regular stated intervals, but at such times as the growth of the grass makes it necessary. In the present instance, therefore, since this domestic situation did not involve any one of the three elements cited above, the employment involved must be classified as casual and as such the employment was not subject to the provisions of the Workmen’s Compensation act. Therefore, the dependents of the deceased are not deprived of such common law rights as may be theirs under the general statute.

<: H: * $ $ $ $

W. E. Stubbs, Deputy Commissioner.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THOMAS FRAZIER, PETITIONER, v. SCHULTZE VEGETABLE OIL COMPANY, RESPONDENT.
   A formal petition for compensation having been filed in this canse, to which an answer was thereafter filed by respondent, and the matter coming on in due course to be heard before this bureau at Newark, in the presence of Meaney & Liiland, attorneys for the petitioner, and McCarter & English, attorneys for the respondent, and a basis for settlement of the case having been arrived at by the parties and having been submitted to this court, and testimony having been taken thereon and said settlement having been approved by this court, it is found and determined from the stipulated facts and from the testimony as follows:

On or about October 6th, 1927, petitioner was in the employ of respondent at a wage of $30 per week. He states that on that day he sustained an accident arising ont of and in the course of his employment and which consisted in his striking his head against an iron beam in respondent’s factory. Petitioner, in his petition, gives the date of his alleged accident as November 2d, 1927. This date has been amended to on or about October 6th, 1927. Petitioner claims that as a result of said accident he has become totally and permanently blind. There is no question but that petitioner is totally and permanently blind, and this settlement is made on the basis of said total and permanent blindness. Bespondent denies that petitioner sustained an accident arising out of and in the course of his employment with respondent, and further denies that his blindness is the result of any such accident. There is a grave question as to both these things. Respondent, however, for the purposes of disposing of this case and primarily because of the total and permanent blindness of the petitioner, has agreed to settle any and all claims of the petitioner arising out of the accident he alleges for six and one-seventh weeks’ temporary disability, amounting to $104.42, and for seventy-two per cent, of total permanent disability, amounting to $4,896, making a total of $5,000, and this settlement has been accepted by the petitioner and his attorneys and is approved by this court.

^

Application having been made by the petitioner herein to the full board of this bureau on November 19th, 1928, for the payment of the above award in a lump sum and said lump sum payment having been approved bjr said board and application having been made to said full board of this bureau on said date by the attorneys for the petitioner for a counsel fee for their services for the petitioner in this case and said board having allowed said attorneys the sum of $500 as and for their counsel fee and expenses, said $500 to be paid by the petitioner herein and said full board of this bureau having directed the respondent in this case to pay to the attorneys for the petitioner said sum of $500 to be deducted from the award allowed the petitioner and said board having further directed the respondent to p'ay the balance of said lump sum award, namely, $4,500 to the petitioner, through the commissioner of labor, in the manner designated by said full board at said meeting.

It is, therefore, further ordered that the respondent pay petitioner’s attorneys, Messrs. Meaney & Lifland, the sum of $500, representing the counsel fee allowed said petitioner’s attorneys by said full board, and

It is, therefore, further ordered that the respondent pay the balance of said award, namely, $4,500 to the petitioner herein, through the commissioner of labor, in the manner directed by the said full board * * *.

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    BERTHA KALESAVICK, PETITIONER, v. UNITED STATES METALS REFINING COMPANY, RESPONDENT.
    For tlie petitioner, Jacob Mantel.

    For the respondent, James J. SJceffingfon.

   I find as a fact that Charles Kalesaviek, the deceased, on the 29th day of May, 1928, while in the silver furnace room, observing the operation of the said furnace, by a fellow-employe, but not taking any part in the said operation, suddenly collapsed and fell to the floor of the furnace room, striking his head on the flooring, suffering a fracture at the base of the skull resulting in his death three (3) days later.

That it is alleged in the claim petition that the decedent fell from a ladder and this is not corroborated by any testimony produced by either the petitioner or the respondent.

That there is no evidence produced to indicate that there was any accidental occurrence, causing the decedent to collapse during the course of his employment.

That the decedent was at the time of his collapse standing-on the level flooring of the furnace room, and that in the fall did not strike any object other than the floor upon which he was standing, indicating that the decedent had not been placed in a hazardous position by reason of his employment ; further,

That there was no testimony to indicate that there was any gas or fumes that could be considered as the cause of decedent’s collapse.

That at the time of the decedent’s observance of the operation of the silver furnace, and at the time of his collapse, there was no fire in this furnace.

That the testimony of the attending physician showed that the probable cause of this man’s collapse to be a stomach disorder, namely, gastritis due to alcoholism.

The medical testimony of the attending physician further showed that heat was not the probable cause of this man’s collapse and subsequent fall or death.

The testimony showed that the deceased suddenly crumpled up and fell to the floor as he stood watching the other man. There was no proof of any untoward event or accident as laid down in the case of Bryant v. Fissel, and as the court said in the case of Reimers v. Proctor Publishing Co., 85 N. J. L. 441: “The burden of proving that death was caused by accident arising out of and in the course of his employment is under the Workmen’s Compensation act of 1911 upon the petitioner, and where the physician in attendance refused to state that death was caused by the accident, there is no basis for an inference to that effect by the court.”

The testimony of the physician attending the deceased at the time of his demise was clear that the fall was not caused by an accident or any external force, but due rather to an inherent weakened condition.

The testimony of Mrs. Kalesavick showed that he had been ill with stomach trouble before this time, and after examining all the testimony and observing the demeanor of the witness, I am satisfied that the petitioner has not sustained the burden of proving an accident arising out of and in the course of the employment.

* # * ❖ ❖

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PATRICK CORRIGAN, PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    For the petitioner, Russell Fleming.

    For the respondent, John B. Slanard.

   # $ Jjí ;¡? >Js # 5|;

3. That the petitioner was employed by the respondent as a laborer in the division of water for several years past, and that he continued in such employment np to the 14th day of April, 1928, and that his duties consisted of digging up and adjusting water boxes.

4. That petitioner at the time of his injury received for his services wages amounting to sixty-five cents an hour, or $28.60 1'or a five and one-lialf-day week of eight hours a dajr, and was employed under the provisions of the civil service laws of this state.

5. That on the said 14th day of April, 1928, petitioner sustained personal injuries as a result of an accident; that the said accident consisted of an injury to his left eye, caused by a piece of metal which petitioner claims fiew from a water-box he was adjusting on Wilson avenue, Newark, New Jersey, and that petitioner has lost the sight of said eye as a result of said injury.

6. That petitioner’s testimony with respect to the maimer in which he received his injury is without corroboration. The testimony of Charles Yogel, a foreman in the employ of the respondent, and having oversight of the duties of petitioner, is to the effect that on Monday, April 16th, 1928, petitioner reported to him for work but petitioner appeared to be intoxicated and unfit for work, and that he was sent home; that petitioner at that time did not mention having received an injury; that petitioner should have been working on Central avenue, Newark, on April 14th, when he claims to have received his injury, and that he did not send him to Wilson avenue as petitioner testified; that the testimony of Tony Delico, a fellow-laborer, corroborates the testimony of Charles Vogel with respect to the failure of petitioner to notify his foreman of the injury sustained on April 14th, and of the condition of the petitioner on Monday, April 16th; Delico further testified that about two weeks after Monday, April 16th, 1928, he was sent by his foreman to the home of petitioner to learn why he did not report for work, and that petitioner then told him that he had a bad eye and would return as soon as his eye got well.

7. That the respondent had no actual knowledge of the occurrence of the alleged injury to petitioner, and that petitioner did not prove by a preponderance of evidence that he had incurred such an injury in the course of his employment.

8. That petitioner was an employe of the city of Newark and as such employe his yearly earnings amounted to more than $1,200 and therefore does not come within the purview of the act referred to in paragraph one, above, respecting municipal employes.

Harry J. Goas, Deputy Commissioner.


author: Andrew E. McBride, Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BROWN KUGLER, PETITIONER, v. NATIONAL LOCK WASHER COMPANY, RESPONDENT.

      Eor the petitioner, Dalrymple & Campbell.

    For the respondent, Richard ~W. Baker.

   The petitioner was employed by the respondent on August 24th, 1926, and sustained an injury to one eye, arising in and out of the course of his employment, necessitating medical attention.

The respondent maintained at some distance from its plant a hospital, and directed the petitioner to go to its hospital for treatment, giving petitioner a card for that purpose and directing him to return to the plant., Petitioner rode his bicycle to respondent’s place of business each day. This was known to the respondent and for the purpose of getting to and from the hospital, petitioner, with respondent’s knowledge, used his bicycle.

Upon his return from the hospital after treatment of the injury petitioner’s time card was punched, respondent allowing three-quarters of an hour for the same.

Petitioner again reported for work at the instructions of his foreman on August 25th, 1926, and was again sent to the hospital as before and given a card. Petitioner went to the hospital and had his eye treated, and on his way back to his place of employment, he was struck by an automobile and sustained personal injuries.

The respondent supervised the injury of the petitioner and had him report to his duty each morning after the injury was sustained, and that petitioner in going back and forth to the hospital acted in accordance with instructions of the respondent, and that the hospital was maintained by the respondent, and under the Workmen’s Compensation statute petitioner was bound to accept the medical attention furnished by the respondent or pay his own, and that the petitioner was on the direct path from the hospital to respondent’s plant, using the public highway, and that in going to and from the hospital of the respondent, petitioner was doing so at the direction of the respondent and was doing so for respondent’s benefit, and the court having heard other testimony offered in behalf of the petitioner and respondent thereof, and the argument of counsel;

I, Harry J. Goas, deputy commissioner of New Jersey, department of labor, workmen’s compensation bureau, do find and determine from the evidence offered in the above-entitled cause as follows:

First.—That the petitioner was on the 25th dajr of August, a. d. 1927, in the employ of the respondent .in the capacity of automatic machine worker.

Second.—I do further find that at the time of the said injury, said petitioner received as wages in said employment the sum of $23.64 per week.

Third.—That on the 25th day of August, 1926, said Brown Kugler, while in the course of his employment and on his return from the hospital where he was sent by his employer, received an injury to his left shoulder, consisting of a fracture.

Fourth.—I do further find that the respondent herein had knowledge of said accident.

Fifth.—As a result of said- accident said Brown Kugler sustained injuries to his shoulder.

Sixth.—That petitioner is entitled to compensation amounting to temporary disability for forty days on the basis of $23.64 wages per week, or a total of $91.05 temporary disability, and permanent disability of fifteen per cent, of one arm on the basis of $23.64 wages per week or a total of thirty weeks at $15.76 per week, amounting to $472.80.-

Seventh.—That the petitioner is entitled to a counsel fee of $100 to be paid bj^ the respondent, and physician’s expenses of $100 to be paid by the respondent.

Andrew E. McBride, Commissioner.


author: Pek Cueiam.

text:
    REGINA BOHAN, BY NEXT FRIEND, AND FRANK THOMAS BOHAN, v. MICHAEL GULYA.
    Submitted May 17, 1929
    Decided September 12, 1929.
    Before Justices Paeker, Black, and Bobine.
    For the plaintiffs, George R. Morrison.

    For the defendant, Henry G. Berg.

   Pek Cueiam.

This is an assault and battery case. The infant plaintiff, a young girl of eighteen, had a verdict of $2,500, which may properly be considered to have included punitive damages, and her father had a verdict of $100 for damages per quod.

As to the physical injury admittedly inflicted by defendant on llegina, the dispute of fact is principally whether he hit her in the head with a large stone, or whether it was merely a clod of dirt. The evidence seems fairly clear that her scalp was cut to the bone and that she had severe bruises on the leg. Making allowance for a certain amount of exaggeration of the alleged nervous injury, the ease shows an unreasonable and unnecessary assault by an irascible grown man on a young woman, and the jury quite properly took advantage of the instruction that they might include exemplary damages. As to the verdict of $100 for loss of services, the actual expense proved was only $10, but there are other elements in such a verdict besides actual expense sustained, which may be assessed by a jury though incapable of definite arithmetical calculation.

The rule will he discharged.


text:
    STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. JOHN KING, PLAINTIFF IN ERROR.
    Submitted May term, 1929
    Decided September 13, 1929.
    Before Justices Parker, Black and Bodine.
    For the defendant in error, John Drewen, prosecutor of the pleas.
    For the plaintiff in error, George E. Cubley.

   Per Curiam.

The defendant in this case was indicted for murder and convicted of murder in the first degree. Life imprisonment was recommended by the jury. The writ of error must be dismissed, as it does not appear in the state of the case sent up with the writ of error, that application was made to the chancellor for a writ of error to the Supreme Court. This mhst be done under the ease of State v. Giberson, 94 N. J. Eq. 25.

The writ of error is therefore dismissed.


author: Rodine, J.

text:
    DEBORAH JEWISH CONSUMPTIVE RELIEF SOCIETY, A CORPORATION, PROSECUTOR, v. THE STATE BOARD OF HEALTH OF NEW JERSEY, RESPONDENT.
    Decided September 16, 1929.
    Eor the rule, Leonard J. dimmer(jlick and Philip J. Schollan d.

      Contra j William A. Stevens and Robert Peacock.

   The opinion of the court was delivered by

Rodine, J.

This case is before the court upon a writ of certiorari to the state board of health to compel it to issue a permit to the prosecutor, Deborah Jewish Consumptive Relief Society, that it may establish and maintain a tuberculosis sanitorium in the borough of Hopateong, Sussex county.

The prosecutor applied to the state board of health for a permit, to locate in the borough of Hopateong, Sussex county, a hospital for the care of persons afflicted with tuberculosis. After a full hearing, the board denied the application.

It appears from the record that the land proposed to he used is ideally situate for the contemplated purpose. The site is several miles from any built-up section. It is protected from the hitter winds and the buildings and tbe sewage disposal plant contemplated are to be of the latest and most approved design, costing approximately $1,000,000.

Many persons resort to the borough of Hopatcong during the summer months for recreation and refreshment. It is an ideal place for women and children during the summer months. These people walk over the hills and boat and bathe in the lake. The municipal authorities and many taxpayers protested strongly to the state board of health against the establishment of a sanitorium in their midst because it would tend to bring tuberculosis to those seeking health and refreshment in this beautiful country.

The application for the permit was made pursuant to Pamph. L. 1910, p. 93. The provisions of the act, so far forth as they relate to the determination of the state board, are as follows: “4. At the time and place so fixed for said hearing the state board of health shall hear all parties, both for and against said application, and said board shall thereupon either grant or withhold the consent and approval asked for. 5. After the passage of this act the state board of health shall have the sole authority to grant or refuse its consent and approval to the erection, construction and establishing of any and all hospitals, sanitaria, preventoria or other institutions designed for the care, board or treatment of anj^ person or persons afflicted with the disease known as pulmonary tuberculosis.”

The prosecutor’s argument is to the effect that the state board in passing upon permits exercises a judicial function and that its action must be predicated upon the facts before it at the statutory hearing; that it can only receive and consider such evidence as would be considered in a court of law, and that the landowner has an inherent right to make such use of his land as does not constitute a nuisance.

It is perhaps a sufficient answer to the whole argument to say that the state board of health is created under the police power of the state to protect the health of the citizens of the state. There is nothing in the record to indicate that the action under review is capricious or based upon improper motives. The course and communication of disease is not so certainly understood that this court would be justified in saying that the state hoard of health must grant a permit for the establishment of a tuberculosis sanitarium adoining a summer vacation center. But the legislature has said that the state board of health shall have the “sole authority to grant or refuse a permit” for the establishment of such a sanitarium. If these words mean anything they mean that when there is any reason to justify the action of the board that no other tribunal shall have the power to change the result. There is reason in the record for the action of the state hoard, and it is immaterial that others may reach a different conclusion.

The writ will he dismissed.


author: Pee Curiam.

text:
    CHRISTINE C. DOUROPOULOS, ADMINISTRATRIX, ETC., PLAINTIFF, v. KATHERINE DeVOE ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided September 19, 1929.
    Before Justices Parker, Black and Bodine.
    Eor the plaintiff, Theodore D. Parsons and Theodore J. Labrecque.

    Eor the defendants, William, P. Holmwood.

   Pee Curiam.

This suit was brought to recover damages under the Death act. On the 21st day of April, 1928, the plaintiffs intestate, Dionysios C. Douropoulos, was driving a Ford coupe car upon Third avenue in a southerly direction in the borough of Spring Lake. As he was passing the intersection of St. Clair avenue a collision occurred with an automobile driven by Katherine DeVoe, wife of the defendant John L. DeVoe. She was going in a westerly direction along St. Clair avenue approaching Third avenue. The plaintiff’s intestate’s car swung around to the westward, until it struck the curb opposite a tree on the westerly side of Third avenue. The driver, Dionysios Douropoulos, was killed. Negligence of the defendants is charged in the complaint and negligence of the plaintiff’s intestate is charged by the defendants, as a defense.

The trial resulted in a verdict for the plaintiff. The defendants obtained a rule to show cause and filed four reasons for a new trial. Our examination of the record, the briefs of counsel and the reasons filed for a new trial lead us to the conclusion that the rule to show cause should be discharged. We find no substantial reason for disturbing the verdict found by the jury.

The case falls within that class of cases described in 1 Thomp. Negl., § 1322. Cases of collision on highways almost invariably involve questions of concurrent negligence on the part of both the actors cited with approval in Fox v. Great Atlantic, Sc., Go., 84 N. J. L. 728, or as expressed by the phrase “congeries of concurrent circumstances,” a jury question is involved. Daly v. Singac Auto Supply Co., 103 N. J. L. 416. The rule to show cause is therefore discharged.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    REGINO CALVO, PETITIONER, v. SHERWIN WILLIAMS COMPANY, RESPONDENT.
    Por ihe petitioner, George If. Allgair.

    Por the respondent, Arthur I. Robinson.

   The petitioner and respondent, by their attorneys, stipulated that the petitioner contracted lead poisoning while in the employment of the respondent; that the petitioner was incapacitated and out of work as a result of his illness from March 27th, 1928,. to June 15th, 1928; that petitioner was earning as a weekly wage the sum of $24.75 during the time of his employment and that petitioner was entitled to compensation from the respondent from March 27th, 1928, to June lath, 1928, at the rate of $16.50 per week.

This stipulation so reduced the matters in issue as to only leave open the question as to whether or not petitioner was entitled to have his doctors’ bill and hospital bills paid by the respondent.

Dr. A. Levy and Dr. Benjamin Borow of Bound Brook, New Jersey, witnesses produced in behalf of the petitioner, testified that the petitioner was so ill and was suffering from lead poisoning to such a degree as to make it impossible for him to he treated in his home, and that in order to give petitioner proper care and attention it was necessary to remove him to a hospital, both of these doctors testified to the effect that a Mr. Somerville, the general manager of the respondent company, was notified as to the circumstance on the 4th daj1" of April, 1928, prior to the rendition of these services. Dr. Levy and Dr. Borow also stated that a reasonable charge-for these services. rendered to the petitioner was the sum of $75 for the medical treatment and the sum of $160 for the-hospital care and attention.

Mr. Somerville, the general manager of the defendant company, a witness produced by the respondent, testified that, he visited the petitioner at the Bound Brook Hospital sometime in the latter part of April and at that time saw that the petitioner was suffering from lead poisoning and was in such a condition as to require further medical assistance and care. Mr. Somerville, however, emphatically denied any conversation with Dr. Levy and Dt. Borow prior to the admission of the petitioner to the Bound Brook Hospital, and stated that he never authorized the rendition of medical or-hospital services to the petitioner.

Dr. Mack, a witness produced in behalf-of the respondent,, testified as to the number of cases of lead poisoning that Impersonally treated and stated that in his experience he had not found it necessary to remove any of his patients to a hospital in order to give them proper treatment, but the-doctor admitted that the degree of lead poisoning might be such as to require such attention, and further stated that in some instances those suffering from lead poisoning die.

I am satisfied after a consideration of the entire evidence-in the case that the petitioner was in such a condition physically as the result of his illness that he needed both medical and hospital care and attention, and it appears to my satisfaction that the respondent consented to this treatment and-authorized the rendition of the necessary services to the petitioner, and having made that determination I do hereby order- and direct the respondent to pay to the Bound Brook Hospital of Bound Brook, Hew Jersey, the sum of $160 for the services rendered by that institution to the petitioner, to Dr.. Benjamin Borow and Dr. A. Levy for professional services rendered to the petitioner the sum of $75, to Dr. A. Levy for Ms services as a witness at the hearing in petitioner’s behalf the sum of $25, to Dr. Benjamin Borow, for Ms sendees as a witness at the hearing in petitioner’s behalf the sum of $25, to Regino Calvo as compensation for his injuries eleven and four-sevenths (11 4/1) weeks of compensation at the rate of $16.50 per week, to George W. Allgair, attorney of the petitioner, the sum of $50 as counsel fees, and to the said George W. Allgair the further sum of $5 as reimbursement for his payment to the stenographer in attendance at the hearing.

;¡; ij; * # £

Charles E. Corbin, Deputy Commissioner.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CHESTER VAN HART, PETITIONER, v. BOULLEE-FRASER TANNING COMPANY, RESPONDENT.
   1. That on or about April 2d, 1928, ihe petitioner ivas employed by the respondent at a weekly wage of $45 as a hide-splitter in and about its plant, and while so employed during that day in the morning, a considerable time before the lunch hour he was working on a hide-splitting machine, preparing it for use. While reaching for an adjusting wheel he bumped Ms arm, quite hard, on an adjusting screw, a little below the elbow. He felt some pain at that spot, rubbed it and showed it to a fellow-workman, Edward Symes, and continued on with his work. The pain in the arm continued and the next day fingers two, three and four bent so that in a short time fingers three and four were completely bent and finger two partially bent. Petitioner continued to work, believing that the pain in the arm would subside in a short time, that the bruise received was an ordinary one and that nothing serious would result. The pain increased, however, and became so intense that on April 30th, 1928, the petitioner applied to the Alexian Brothers Hospital in Elizabeth for treatment. During the intervening period he had treated the arm himself in the belief that nothing serious would residí from the bump. On April 14th, 1928, the petitioner was laid off by his employer. He attributes the reason for his being laid off to his being slow in his work, which was caused by the injury.

When the petitioner was treated at the Alexian Brothers Hospital, Dr. Altman probed the arm and treated it until July’. at which time Dr. Eunk came on duty, and a few days thereafter the latter operated on the arm, the petitioner undergoing anesthesia, the treatment by Dr. Eunk continuing until October 6th, 1928. The petitioner went for treatment to the hospital and Dr Eunk about seventy times. On October 10th, 1928, a physician representing the respondent began treating the wound in the arm, the treatment to continue until the arm is healed.

Notice was given the respondent of the accident on June 7th, 1928. The petitioner was unable to do any work from the time he was laid off, April 14th, 1928, to September 20th, 1928, at which time he procured a position with a lunch wagon, which he held for five days, and finding that he could not do his work because of the bent fingers he left the job and procured another as night watchman in Elizabeth, on September 27th, 1928, at a weekly wage of $30, working from six p. m. to six A. m., seven days a week.

The petitioner cannot do hide-splitting any more because he cannot work with his left hand, which is the one injured, and that the work requires the full use of both hands. Dr. Funk, at the hearing, testified that in his opinion the petitioner suffered a fifty per cent, permanent loss of use of his hand and Dr. Ruoff, for the respondent, estimated the petitioner suffered a thirty-three and one-third per cent, permanent loss of use of his hand. The respondent had knowledge of the accident, the same arose out of and during the course of the employment of the petitioner with the respondent and neither intoxication nor drunkenness caused the accident, and the accident was not self-inflicted.

2. From the facts presented to me at the hearing I find that the petitioner sustained injury as set forth above, and that he is unable to work as he did before the accident, there being a permanent loss of use of fingers two, three and four of the left hand. The wound in the arm is still being treated, treatments requiring about one month until the wound will be healed.

3. I therefore find that the petitioner has sustained temporary disability for a period from June 7th, 1928, to September 20th, 1928, at which time the petitioner obtained employment. The reason for not giving the petitioner temporary disability compensation from April 2d, 1928, to June 7th, 1928, is because I find that the employer was prejudiced by not receiving notice of the accident before that time, during which time the employer might have given the petitioner medical treatment, and I further find that the petitioner has sustained permanent disability amounting to thirty per cent, of the hand, which award is also influenced by the claim of prejudice as above stated. The petitioner is entitled to receive fifteen weeks of compensation for temporary disability from June 7th, 1928, to September 20th, 1928, at the rate of $17 per week for forty-five weeks (thirty per cent, of one hundred and fifty weeks), for permanent disability at the rate of $17 per week. I further find that there has been paid to the petitioner eight weeks’ compensation for temporary disability and that there is still due to the petitioner compensation for seven weeks’ temporary disability.

iji & ^ ^ ❖

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GUSTAVE WEDLICK, PETITIONER, v. LACKAWANNA LAUNDRY COMPANY, RESPONDENT.
    For the petitioner, Nathan A. Whitfield, for Levenson,. Gomen & Levenson.

    For the respondent, Stanley L. Otis.

   ❖ # :¡: $ :¡: *

2. The petitioner and respondent were formally notified by me by notice dated June 26th, 1928, that the petitioner would be heard by me on Friday, July 13th, 1928, at which time the matter was formally adjourned by consent to September 21st, 1928; on the last-mentioned date, the matter was formally adjourned at the request of the attorney for the respondent, by reason of the eye specialist’s absence from the city to October 19th, 1928, and then adjourned to October 24th, 1928.

3. This matter coming on on the last-mentioned day, it appearing that an informal hearing had been had between the parties before Referee John Stahl, of the bureau of compen-' sation, at which hearing it was disclosed that the petitioner was in the respondent’s employ as a machinist and was injured on November 19th, 1927, in an accident arising out of and in the course of his employment, in which he sustained a fractured skull, and it further appearing that at the informal hearing the petitioner received the following award: Tern-porary disability from November 19th, 1927, to March 12th, 1928, amounting to $266, and permanent disability, ten per cent, of the total, or fifty weeks at $17 per week, amounting to $850, based upon the state doctor’s report.

•1. It further appearing that the petitioner being dissatisfied with the permanent disability as aforesaid had filed the aforesaid petition claiming besides compensation for his injuries, a claim for medical services in the sum of $300, together with additional compensation for permanent disa■bility.

5. It further appearing that the said petitioner returned to the hospital in April, 1928, for the purpose of undergoing an operation for a cellulitis of the neck. It further appealing that said respondent filed an answer setting forth the ■aforementioned informal hearing and denying any liability for any additional total permanent disability. It further .appearing that it was a debatable medical question as to whether the aforementioned cellulitis of the neck resulted from the trauma received in the accident, or whether the petitioner was suffering from optic atrophy as a result of the said trauma and the amount of disability concerning a condition of otitis media or acute middle ear disease.

6. I therefore called Dr. P. J. Hamill, who treated the said petitioner for the respondent; Dr. A. C. Ruoff, who examined the petitioner for the said petitioner-, and I also had before me report of Dr. Pyle as to the eye and ear condition; Dr. George E. Sullivan, a physician and surgeon, and an expert and a specialist for the treatment of eyes and ■ears, and also Dr. William J. Arlitz, a physician and surgeon and an expert of many years standing, who, being duly sworn, testified that petitioner had suffered a fracture of the skull and was also apparently suffering as a result of the said cellulitis of the neck and from the condition of the left ear, and that the settlement and agreement hereinafter mentioned was a reasonable one.

7. Under this posture of affairs, after considerable discussion, it was stipulated and agreed bvr and between the parties that in order to actually dispose of the matter and terminate all claims of whatever name and nature by the petitioner against the respondent except for the purpose of this award, that an award should be made as follows:

For temporary disability from November 19th, 1927, to March 12th, 1928, all of which compensation has been pai¿— form 3 filed and approved, $266; compensation for permanent disability representing thirty per cent, loss or one hundred and fifty weeks at $17 per week (less payments already made), $2,550; medical bill of Dr. William J. Arlitz (one-half of which is to be paid by the respondent and one-half by the petitioner), $100; medical bill of Dr. Andrew C. Ruoff (one-half of which is to be paid by the respondent and one-half by the petitioner), $100; medical bill of Dr. George F. Sullivan ($25 of which is to be paid by the petitioner and $10 by the respondent), $35; medical bill of St. Francis Hospital, which is to be paid by the respondent, $34; medical bill of Christ Hospital, $45.50, medical bill of Dr. Donald Minor, $155, medical bill of Dr. Maver, $15, all of which total $215.50 (one-half of which is to be paid by the petitioner and one-half by the respondent); petitioner’s attorneys to receive a counsel fee of $400 (one-half of which is to be paid bjr the petitioner and one-half by the respondent); stenographer’s fee $10 (one-half of which is to be paid by the petitioner and one-half by the respondent).

8. The foregoing adjustment and final disposition of the petitioner’s claim appears to me as fair, just and ample compensation of any and all claims which the petitioner has or may have against the respondent, and I do therefore, as deputy commissioner, approve of the compromise and agreement which has been agreed upon by the petitioner and the respondent.

9. It further appears that the attorneys for the petitioner presented the matter of counsel fee to the board on November 5th, 1928, at which time the said board unanimously approved the allowance of the counsel fee aforementioned.

$$$$$$ ;;c

Chaeles E. Coebijt, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    JOSEPH LO PICCOLO, PETITIONER, v. J. C. BENTLEY CONSTRUCTION COMPANY, RESPONDENT.
    For the petitioner, Samuel Greenstone.

   Hí H« Hi H« Hi Hs Hi

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with respondent on January 31st, 1928, at which time his weekly wages were $49.50. Petitioner states that while he was swinging a sledge hammer on said day he felt a pain in his right elbow and states that he fractured said right elbow at that time and that as a result he has a permanent injury to his right arm amounting to twenty-five per cent, of loss of use of that arm or more. He alleges in his petition that he sustained permanent injuries to other parts of his body but admits that no other part of his body was injured directly or indirectly as a result of his alleged accident. At informal hearings held by this bureau petitioner was awarded five and six-sevenths weeks’ temporary compensation at $17 a week and ten per cent, of partial total permanent of his right arm, amounting to twenty weeks at $17 a week. Petitioner admits that the temporary compensation awarded him amply covers whatever temporary disability he had as a result of his alleged accident. Eespondent denies that petitioner sustained any permanent disability over and above that allowed him by this bureau, but for the purpose of settling this case finally and completely and taking into consideration all injuries alleged to have been sustained by petitioner as a result of his alleged accident, in-eluding any and all ultimate results of any and all such, alleged injuries, and basing this settlement not only on petitioner’s present condition but on any and all developmets in his condition which may be by him or by doctors alleged to be resulting from his alleged accident, either direetty or by way of aggravation, is willing to settle the entire matter for five and six-sevenths weeks’ temporary compensation at $17 a week and for seventeen and one-half per cent, of partial total permanent disability of his right arm, amounting to thirty-five weeks at $17 a week, together with a counsel fee of fifty per cent, to be paid the attorney for the petitioner. The temporary compensation and ten per cent, of partial total permanent disability have already been paid.

From the testimony and the facts stipulated, the settlement is fair to both sides and is approved by this court, upon the distinct understanding of the petitioner, his attornejr, the respondent and its attorneys, that a fundamental element of the settlement is the fact that any future or further developments resulting in an increase of disability to the petitioner are taken into consideration and are in a large measure the reason for the respondent’s willingness to agree to this settlement.

Judgment may be entered in favor of the petitioner' and against the respondent for the balance of the partial total permanent disability of the right arm amounting to seven and one-lialf per cent., which is fifteen weeks at $17 a week. A counsel fee is allowed the attorney for the petitioner in the sum of $100, $50 of which is to be paid by the respondent and the balance of $50 is to be paid by the petitioner.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIE TAYLOR, PETITIONER, v. GUNNE & DI ALLESSIEN, RESPONDENT.
   A formal petition for compensation having been filed in this cause to which an answer was thereafter filed by the respondent, and the matter coming on in due course to he heard before this bureau at Elizabeth, and a basis of settlement having been arrived at between the parties and having been submitted to and approved by this bureau, it is on the stipulation of facts by and between the parties and on the testimony of the petitioner found and determined as follows:

That the petitioner was in the employ of the respondent on February 6th, 1928, at which time his weekly wages were $27. On said day, petitioner alleges that he met with an accident arising out of and in the course of his employment as follows: Petitioner was employed as a garbage collector and claims that on said day while throwing garbage from the street curb to the respondent’s truck he handled some small cans containing liquid and that the liquid ran inside the gloves covering his hands, wetting the hands, which subsequently froze. Petitioner further alleges that as a result he sustained frozen fingers on both hands which necessitated the amputation of part of the first, second and third fingers of the right hand and which incapacitated him from all employment for a. period of nineteen weeks.

Eespondent denies all of the above allegations of the petitioner and says it had no knowledge of any accident to the petitioner arising out of and in the course of his employment with respondent. Eespondent further says that the allegations of the petitioner himself show that he did not sustain an accident arising out of and in the course of his employment. Eespondent, however, taking all of the allegations of the petitioner into consideration and taking all of petitioner’s injuries into consideration, which he says he sustained through his hands being frozen, &c., is willing to settle petitioner’s claim by paying him ten weeks’ temporary disability at $17 a week and for permanent disability seventy per cent, of total permanent disability of the first finger of his right hand, amounting to twenty-four and one-half weeks; seventy-five per cent, of total permanent disability of the second finger of his right hand, amounting to twenty-two and one-half weeks, and seventy-five per cent, of total permanent disability of the third or ring finger of his right hand, amounting to fifteen weeks, making a total of sixty-two weeks for permanent disability at the rate of $17 per week. Eespondent also agrees to pay the hospital bill of Alexian Brothers Hospital for treatment to the petitioner amounting to $139, and Dr. Mc-Callion’s bill for treatment to the petitioner; amounting to $137. Eespondent further agrees to pay petitioner’s attorneys a counsel fee of $250 and one-half of the stenographic fees amounting to $10.

•From the testimony and the stipulated facts the settlement is fair to both sides and is approved by this court under the distinct understanding of the petitioner, his attorneys, the respondent'and its attorneys, that a fundamental element of the settlement is the fact that any future and further developments resulting in-an increase of disability'- to the petitioner, even over and above his present claims, which are here compromised, are taken into consideration and are in a large measure the reason for the respondent’s willingness to agree to this settlement.

* ❖ ❖ * % *

Chakles E. Cokbin-, Deputy Commissioner.


author: Chakles E. Cokbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTHONY CASTERELLA, PETITIONER, v. AMERICAN RADIATOR COMPANY, RESPONDENT.
    For the petitioner, Anthony Botli.

    For the respondent, Clarence B. Tippett.

   Testimony was produced on that day of petitioner, he claiming that around nine A. m., on March 12th, 1928, while pushing a truck, he suddenly felt acute pain in the region of his groin; he described most minutely his work and stated he walked over from the truck to the foreman, reported the alleged occurence, and then went to the first aid, where Dr. Deary examined him.

Without describing in detail the balance of his testimony, I have given due consideration to the nature of his work, type of alleged condition he described, and the subsequent medical proof which was presented, in arriving at my later decision.

Dr. Dearjr testified that he examined this man on March 12th, 1928, finding no evidence of abdominal trouble, but an enlargement in the region of the groin which he described as a varicocele, and he did not consider it was the result of injury; and particularly, he found no hernia.

Dr. Londrigan, who previously had examined this petitioner, by mutual consent made an examination during the progress of this hearing, and reported that at the present time he did not find a hernia, merely a possibility of a potential weakness which might he called a potential hernia.

On resumption of trial December 21st, 1928, Dr. Eacciolo was produced by petitioner. He recalled examining this petitioner during March, stating he did not find any hernia, but found what he believed a varicocele condition and suggested examination by Dr. Woodruff.

Without' further comment or enlargement upon the testimony produced, I am satisfied that the petitioner has failed to sustain the burden of proof required to merit a compensable award under the statute on the claims advanced, * * *.

Chakles E. Cokbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SALVATORE ALVES, PETITIONER, v. PUBLIC SERVICE PRODUCTION COMPANY, RESPONDENT.
    ,For the petitioner, Charles BecJcer.

    For the respondent, Henry J. Sorenson.

   * '

The petitioner in his claim for compensation alleged that on April 27th, 1927, while he was employed by the said respondent, he met with an accident while he was endeavoring to dislodge a large stone with his hands. After having dislodged this stone, the stone slipped, striking him upon his body in such a fashion as to cause a hj’drocele.

The petitioner, in the proof of the above-mentioned allegations in his petition, called Dr. Silverstein as a witness in his behalf. Dr. Silverstein testified that as a result of an examination he made, he was of the opinion that the petitioner was suffering from a left inguinal hernia. In response to a hypothetical question propounded by the attorney for the petitioner, Dr. Silverstein was of the opinion that this existing left inguinal hernia was in all probability caused by the alleged accident.

Dr. Singer was also called by the petitioner and he testified that he also found an inguinal hernia. The examinations made by both of these doctors took place at least six months after the date of the alleged accident and subsequent to the operation performed upon the petitioner on December 3d, 1927; further, that these examinations were made for the express purpose of testifying. The testimony at the close of the petitioner’s case clearly showed that there was no proof in his case to sustain a contention that the accident had caused the alleged hydrocele. Therefore, that phase of the ease is eliminated from our consideration, but under the proof as submitted by the petitioner’s witnesses there may be a possible claim for the left inguinal hernia. The respondent submitted whatever proof it had relative to any such claim. The hospital records, which were received In evidence, showed that the first diagnosis made was acute appendicitis. That diagnosis was made on the day the petitioner was received in the City Hospital, which was April 29th, 1927. Subsequently, the diagnosis was changed to umbilical hernia. After the petitioner had remained in the hospital for two days, he was discharged without an operation being performed for any alleged hernia.

The respondent, in proof of its contention that the petitioner did not sustain a compensable hernia as a result of the alleged accident, produced Dr. Pascal, who testified that the petitioner came to him on the 29th day of April, 1927, with a note stating that the petitioner had been injured in West Orange. Dr. Pascal then examined the petiioner and found that he was tender in the right side and showed signs of very great pain, but that there were no signs of any left-inguinal hernia present at the time of his examination. Dr. Pascal further testified that he made subsequent examinations of the petitioner, but that they were all negative as to any hernia in the left inguinal region. Dr. Pascal further testified that on his instructions the petitioner was taken directly to the Newark City Hospital on the date of the accident. The petitioner also, testified that on the day of the alleged injury he was taken to the City Hospital.

. The next doctor called in behalf of the respondent was Dr. Seidman, who testified that he, in conjunction with Dr. Obuchowski, operated on Alves in the City Hospital on December 3d, 1927. That at that time, both doctors were under the opinion that the petitioner was suffering from a hydrocele,, but upon opening up the entire left side of the said petitioner,, it was found that a spermatocele was present. Dr. Seidman testified that if a left inguinal hernia had been present at that time, it would surely have been seen by him because the incision made at the time of the operation was five inches long, running from the groin to the upper abdomen at a diagonal course. He definitely stated that there was no left inguinal hernia present at the time of the operation. Dr. Obuchowski corroborated the testimony of Dr. Seidman in every detail.

The petitioner was examined over a period of time by Drs. Lyons and Hicks, who testified that at the time of their examinations there was no left inguinal hernia present. Dr. Washington examined the petitioner at the time of the hearing in conjunction with Dr. Singer. His testimony was to-the effect that at the time of the examination there was a left inguinal hernia present.

After analyzing the testimony of Dr. Pascal and examining the hospital records, I cannot say that the petitioner has conclusively proved that the alleged hernia was immediately caused by such sudden effort or severe strain that the first descent of the hernia immediately followed the cause. The fact that the petitioner was released from the hospital two-days after his entry without having an operation performed is a further factor which weighs heavily against the petitioner. Then on the following December the fact that when the petitioner was opened up during the operation for a hydrocele, the doctors that performed the operation did not find a left inguinal hernia forces me to the conclusion that the petitioner np to that particular time was not suffering from a left inguinal hernia which would be compensable under the statute.

The only question being involved in this case is whether or not the petitioner sustained a left inguinal hernia as a result of the alleged accident. This is the contention of the petitioner, becanse, in his own case, he has eliminated the question of hydrocele and by proper amendment during the course of trial, changed his claim to that of a left inguinal hernia.

Upon the issue as framed and the proof as presented by the respective parties, I find that the petitioner has not sustained the burden of proof in conclusively proving that the hernia was a result of the accident.

v v ijr

Harry J. Goas, Deputy Commissioner.