text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HARRY RIGHTMYER, PETITIONER, v. TOTOWA BOROUGH, RESPONDENT.
    Decided March 8, 1938.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, Edwards, Smith & Dawson.

   In the case sub jicdice petition was filed September 21st, 1932, alleging that petitioner while employed as a patrolman by the respondent, borough of Totowa, under date of November 14th, 1931, met with an occurrence as hereinafter described which caused him both temporary and permanent injury. Case was scheduled for hearing and testimony taken. Before completion of case or on December 23d, 1932, a settlement was entered into based upon fifty per cent, of total or two hundred fifty weeks’ compensation at the rate of $20 per week together with other fees both medical and legal. This settlement was to be considered as “full and final.” Provisions to that effect are so stated in order signed by me under date of January 4th, 1933.

On October 30th, 1936, petition to reopen was filed by petitioner alleging an increase in petitioner’s disability. Bespondent strenuously objected to the reopening of case alleging that:

1. Settlement entered into December 23d, 1932, was full and final and should not be disturbed.

2. That petitioner did not meet with an accident arising out of and in the course of employment.

As to the effect of full and final closeouts when approved by the bureau, the appellate courts have subsequently 'voiced their contention in various cases among which are the following: Bornstein & Co. v. Hoffman, 117 N. J. L. 500; 189 Atl. Rep. 121; Ecken v. O’Brien, 116 N. J. L. 94; 183 Atl. Rep. 273; Streng’s Piece Dye Works v. Galasso, 118 N. J. L. 257; 191 Atl. Rep. 874.

In substance the law in connection with such cases is that every case must be disposed of upon its merits and that a compromise based upon a lesser amount is not effective, petitioner . being entitled to the full amount as contemplated under the act if he has a meritorious case or if same lacks merit compensation is not payable.

In my judgment after a careful consideration of the arguments advanced by the respondent’s attorney relative to the reopening of the case and in view of existing decisions, the facts were such as to warrant a reopening of the cause and a disposition made upon the merits of the case.

Case was scheduled for hearing before me in Hackensack and testimony taken.

Testimony reflected the following facts:

Petitioner was employed as a regular policeman by the respondent on November 14th, 1931, he was on regular duty in uniform from four a. m. to twelve noon. He then went home and subsequently either voluntarily or as alleged by his brother-in-law, one William Thomas, was called to the place of Mike Finucan who conducted what was commonly known in the days of prohibition era as a “speakeasy.” Thomas was employed as a bartender by Finucan. It appears that two of the patrons of this establishment, Polgaze and Bordeau, had sojourned there on the afternoon in question and imbibed of the liquid beverages dispensed therein.

There is a contrariety of the testimony relative to what really occurred during that particular afternoon. Allegation of the petitioner is to the effect that in his efforts to prevent Polgaze anti Bordeau from driving their auto, claiming they were in no fit condition to drive, he was attacked by them and sustained the injuries from which he now suffers.

I have carefully considered the testimony of the various witnesses relative to the factual question involved and have come to the conclusion that petitioner at the time of the accident was acting within the scope of his employment, that the respondent had full knowledge of the occurrence and under the interpretation of an accident as defined in Bryant v. Fissell comes within the jurisdiction of the workmen’s compensation bureau.

As the result of the attack petitioner developed neurological symptoms shortly after the assault, particularly impairment of his speech and vocal power but continued at his employment until July 4th, 1932.

As a part of the record we have the testimony of Dr. Loo Davidoff who operated upon petitioner in July, 1932. His testimony is summarized in the original order signed by me under date of January 4th, 1933, and is as follows:

I find, from the testimony, that there is a causal relationship between the injuries suffered by reason of the said assault, and the condition found at the operation, and that said tumor was stirred up from a quiescent into an active pathological factor and aggravated by reason of which and because of said injury so sustained, the symptoms of which petitioner is now suffering, were produced. That by reason of the operation, parts of the petitioner’s skull had to be removed and certain scar tissue formed, and that because of the blows administered and the operation required to be performed, petitioner is now suffering from paralysis of his right side, ieg and arm, an impairment of his voice and vocal organs, epileptic fits, and other symptoms of a neurological nature, all due to the injuries sustained by reason of said accident.

I further find that the petitioner is entitled to temporary disability during the period beginning from the oth day of July, 1932, when the petitioner was obliged to stop work by reason of bis condition and that temporary disability continued from said date during which period he entered Beth Israel Hospital on July 26th, 1932, at which hospital he was operated on July 29th, 1932, being discharged from said hospital August 12th, 1932, but was compelled to return to said hospital on August 19th, 1932, returning to his home August 29th, 1932, and that subsequently Dr. Cremens attended him regularly, the petitioner again returning to Dr. Leo Davidolf on September 12th, 1932, and October 4th, 1932, continuing with further treatment by Dr. Cremens for four months subsequent to said date which extends the period of temporary disability to February 4th, 1933.

According to the terms of the finding of facts, determination, and award entered into between the parties dated January 4th, 1933, and filed in this cause, respondent paid petitioner compensation on the basis of fifty per cent, of total disability equal to two hundred fifty (250) weeks at $20 per week from November 14th, 1931, but that petitioner’s permanent disability exceeds said fifty per cent, and is at present one hundred per cent, permanent disability.

Judgment is hereby entered as follows:

Temporary disability — July 5th, 1932 to February 4th, 1933 at, compensation rate of $20 per week.

Permanent disability — one hundred per cent, total or four hundred weeks at compensation rate of $20 per week (respondent to be credited with amount of compensation already paid on account of permanent disability).

At the end of that time petitioner shall submit to such' physical or educational rehabilitation as may have been ordered by the rehabilitation commission of the state and can show that because of such disability it is impossible for him to obtain wages or earnings equal to those earned at the time of the accident, in which case further weekly payments shall be made during the period of such disability.

% % * * ❖ ❖ *

It is, therefore, on this 8th day of March, 1938, ordered that judgment as outlined be entered in favor of the petitioner and against the respondent.

John C. Wegner, Referee.


source: Caselaw Access Project

author: John J. Stahl, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ABRAHAM FISCHMAN, PETITIONER, v. JOSEPH FISH & COMPANY, RESPONDENT.
    Decided February 28, 1938.
    For the petitioner, Saul & Joseph E. Cohn (by Michael Silver).

    For the respondent, Newton H. Porter.

   This is a proceeding brought by Abraham Fischman, as petitioner, against the Joseph Fish & Company, as respondent, seeking a review of an award heretofore entered in his favor, and praying for further allowance of compensation on the ground that his incapacity has subsequently increased, pursuant to the provisions of paragraph 21(f) of the Workmen’s Compensation act. 2 Rev. Stat. 1937, 34:15-27.

Memoranda have been submitted by counsel, the contents of which I have carefully examined.

The award which the petitioner obtained in the earlier proceedings was the result of a fully litigated trial and was based upon the independent findings of Deputy Commissioner Cor-bin before whom the matter was originally tried. By the terms of the award the petitioner was granted three hundred and thirty-three and one-third weeks’ compensation at the rate of $20 per week upon the basis of sixty-six and two-thirds per cent, of total and permanent disability due to mercury poisoning. The deputy commissioner found and determined from the evidence that the petitioner was in the regular employ of the respondent on April 29th, 1929, and that he had been so employed for a continuous and uninterrupted period of seven or eight years prior thereto, working in the blocking department of respondent’s hat factory; that he received wages at the rate of $40 per week; that on the aforesaid date the petitioner became disabled by reason of a compensable occupational disease, to wit, mercury poisoning; and that the exposure thereto occurred during his said employment, and that the disability commenced within five months after termination of such exposure. Expert medical testimony touching on the question of the extent of disability was limited by the parties to one doctor each. Dr. Samuel Greenberg, appearing as a medical expert in behalf of the petitioner, testified that in his opinion the petitioner was suffering disability as a result of mercury poisoning to the extent of one hundred per cent, of total. On the other hand, Dr. Ambrose E. Dowd, testifying for the respondent, expressed an opinion that petitioner’s disability due to mercury poisoning amounted to only sixty-six and two-thirds per cent, of total and permanent disability, conceding, however, that the actual disability was somewhat greater but due to other causes which he believed were unrelated to mercury poisoning. It is quite apparent that the deputy commissioner, upon arriving at his conclusion in awarding compensation to the petitioner on the basis of sixty-six and two-thirds per cent, of total disability, chose to adopt the medical viewpoint of the respondent’s expert. Sitting in the capacity of a statutory tribunal he had, of course, such prerogative as a trier of the facts.

Since the previous award was the result of independent findings of the bureau based upon the evidence in the case, the judgment therein is final and conclusive -upon the parties, and, under the ruling in Tucker v. Beltramo, 117 N. J. L. 72; 186 Atl. Rep. 821, is subject only to continued jurisdiction under paragraph 21(f) to modify or enlarge the award upon the ground of subsequent increased or diminished disability. The sole question in issue, therefore, is whether there has in fact been an increase in the degree of disability attributable to mercury poisoning since the entry of the first award on January 2d, 1931. The burden of proof rests upon the petitioner to establish such increase.

The petitioner, appearing as a witness in his own behalf, testified that his disability has grown materially worse since the first trial. He testified that the tremors and shakes are so marked at the present time that he is unable to dress or undress himself; that he is unable to hold a knife and fork while eating because of the constant trembling of his hands and as a result is compelled to limit his diet to liquid food by sucking same through a glass tube; and that he is unable to read because of the tremors and shaking of his head. He further testified that at the time of the first trial, although he suffered from tremors of his entire body, hands and legs, they were not nearly as severe as they are to-day; that he was then able to care for himself without aid; that he was able to read and to self-administer to his personal needs; and that he was able to use his two hands in eating in the conventional manner with knife and fork; and that to-day he is completely helpless and must depend upon others to assist him.

Dr. Samuel Greenberg, the physician who had testified in behalf of the petitioner at the original trial, and Dr. Henry A. Davidson appeared as medical experts for the petitioner.

Dr. Greenberg testified that the petitioner is suffering from mercurialism to the extent of one hundred per cent, total and permanent disability. In making a comparison of his earlier physical findings in 1931 at the time of the first trial with those found upon his recent examination, Dr. Greenberg testified that the tremors of petitioner’s hands, head and body are markedly more pronounced to-day; that there has been a progressive increase in the symptoms attributed to mercury poisoning; and that the petitioner’s condition, contrasted with what it was at the first trial, is much worse at the present time.

Dr. Henry A. Davidson testified that he examined the petitioner for the first time on October 9th, 1935, at which time lie found him suffering from paralysis agitans, typical of a Parkinsonian syndrone. He ascribed the condition as due to mercury poisoning, being a brain lesion in the area of the basal ganglia, with an involvement of the entire central nervous system. He expressed an opinion that the petitioner’s incapacity is equivalent to one hundred per cent, of total and permanent disability.

The respondent produced two medical experts, Dr. Ambrose P. Dowd, who testified at the first trial, and Dr. Otto Lowy.

Dr. Dowd testified that he had made two physical examinations of the petitioner, one on November 7th, 1929, and the other on December 5th, 1936. Upon the first examination he testified that he found the petitioner was suffering from arteriosclerosis, chronic myocarditis, and mercury poisoning; that these three conditions operating together have caused a disability!- to the petitioner to the extent of one hundred per cent, of total; but that the disability produced by mercury poisoning alone was equivalent to sixty-six and two-thirds per cent, of total. Dr. Dowd testified that his findings on the second examination were essentially the same as those of the earlier one; that petitioner’s disability was no greater; and that the mercurialism had not increased since the first trial.

Dr. Lowy, who examined the petitioner for the first time on December 5th, 1936, testified that he found him suffering from arteriorsclerosis, myocarditis, and Parkinson syndrome due to mercury poisoning. He estimated the petitioner’s disability as one hundred per cent, of total, allocating the various conditions as follows: Sixty-six and two-thirds per cent, of total and permanent disability due to mercury poisoning, and thirty-three and one-third per cent, of total and permanent disability due to arteriosclerosis and myocarditis.

Because of such widely conflicting opinions of the medical experts testifying for the respective parties, in order to arrive at a determination of the question of whether the petitioner suffers from increased disability due to mercury poisoning, it becomes my difficult task to adopt the view which seems more credible and weighty. In doing so, I feel that Dr. Greenberg and Dr. Dowd are the only two medical experts competent to testify as to petitioner’s condition at the present time as compared with his condition at the time of. the first trial. See Vincent Borzi v. J. Rich Steers, 14 N. J. Mis. R. 553; 186 Atl. Rep. 723. While Dr. Dowd’s testimony is to the effect that there has been no increase of disability due to mercury poisoning, Dr. Greenberg has testified to the opposite effect, describing in great detail marked changes in the symptoms referable to mercury poisoning. In a'ddition thereto petitioner’s testimony is strongly indicative of a progressive and marked increase in the degree of disability due to mercury poisoning since the earlier trial and award. Accordingly I conclude that the decided weight of the medical testimony leans toward the view as expressed by the opinions of petitioner’s medical experts, and I find as a fact that the petitioner’s disability due to mercury poisoning has increased since the entry of the earlier award on January 2d, 1931, and that his present disability as a result thereof is equivalent to one hundred per cent, of total.

The statute prescribes no standard of age or of physical fitness to which an employe must conform in order to come within its benefits and operation. This rule is ably stated by Mr. Justice Swayze, speaking for the Supreme Court in the case of Bateman Manufacturing Co. v. Smith, 85 N. J. L. 409; 89 Atl. Rep. 979, as follows:

"The total disability is, to use the words of the act, ca disability total in character,’ words which necessarily refer to the character of the disability considered in itself, and not to the effects produced, which have no fixed character but vary with the peculiarities of each individual. Were it otherwise, we should have to determine what kind of a man was meant by the legislature to receive the standard statutory compensation, whether a young and vigorous man or an old and decrepit man, or some one between the two extremes; and we should then have to vary the award in each individual case, and perhaps never find the typical normal standard.”

While the petitioner was along in years at the time he contracted mercury poisoning, suffering from a mild form of arteriosclerosis and myocarditie changes, quite common in men of his age, these latter conditions did not interfere with his ability to perform his work as a hatter in the slightest degree. His impaired health and total incapacity for remunerative employment are due entirely to the toxic effect of mercury upon his entire central nervous system. He is a striking illustration of the many casualties of our modern industries, a victim of the hatters’ trade which he followed over a period of forty years.

I find, therefore, that the petitioner is entitled to an award of compensation upon the basis of one hundred per cent, of total and permanent disability, being the equivalent to four hundred weeks at the rate of $20, less three hundred and thirty-three and one-third weeks heretofore paid pursuant to the terms of the previous award. This award shall be subject to such further consideration upon the expiration of the four hundred-week period as the case may warrant under the provisions of paragraph 11(b).

$$$$$$ #

John J. Stahl, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRED GORMAN, PETITIONER, v. MINER-EDGAR CHEMICAL CORPORATION, AND JOHN J. TOOHEY, Jr., COMMISSIONER OF LABOR OF THE STATE OF NEW JERSEY, RESPONDENTS.
    Decided January 31, 1938.

      For the petitioner, Haines & Chanalis.

      For the respondent, Kalisch & Kalisch.

    For the commissioner of labor, Stephen J. Lorenz.

   This is a proceeding under the Workmen’s Compensation act, chapter 95, Pamph. L. 1911, together with the several acts amendatory thereof and supplemental thereto, brought by Fred Gorman, as petitioner, against the Miner-Edgar Chemical Corporation, a body corporate, and John J. Toohey, Jr., commissioner of labor of the State of New Jersey, as respondents, praying for a further award of compensation beyond the four hundred-week period as against the Miner-Edgar Chemical Corporation, pursuant to the provisions of paragraph 11(b), or, in the alternative, seeking the payment of benefits by John J. Toohey, Jr., commissioner of labor of the State of New Jersey, from the one per cent, revolving fund, as provided by chapter 81, Pamph. L. 1923 (Cum. Supp. Comp. Stat. 1911-1924, p. 3904, § **236-92), as amended by chapter 55, Pamph. L. 1936; N. J. Stat. Annual 1936, § **236-92.

The present amended petition was filed on July 14th, 1937, to which the respondent Miner-Edgar Chemical Corporation filed an answer, denying any further liability on its part to pay petitioner compensation, and contending that any payments of compensation beyond the four hundred-week period should be made from the one per cent, fund, because at the time of the accident complained of, petitioner had already previously been permanently and partially disabled from another or other causes, and thereby became entitled to the benefits under chapter 55, Pamph. L. 1936.

}|< j*- }|{ ^ íjí

A review of the earlier proceedings reveals the following facts: On September 18th, 1929, upon trial on the original petition and answer before Deputy Commissioner Harry J. Goas, an award was granted in favor of the petitioner and against the respondent Miner-Edgar Chemical Corporation, for three hundred and seventy-five weeks’ compensation at the rate of $17 per week, based on seventy-five per cent, of permanent and total disability. From the evidence it appeared that the petitioner was regularly employed by the said respondent in the capacity of night watchman and fireman, receiving for his services wages at the rate of $30 per week; that he met with an accident on August 17th, 1928, arising out of and in the course of his employment, when, upon going from the fireroom to some other part of the factory to make a report, he fell down a back stairway and broke his right hip bone; and that, because of an underlying Paget’s disease, the fragments of bone failed to unite, rendering the leg useless and producing such intense pain as to prevent him from resuming work. The respondent took an appeal to the Supreme Court on a writ of certiorari, contending that the award should have been limited to one hundred per cent, loss of the right leg or one hundred and seventy-five weeks’ compensation at the rate of $17 per week. The Supreme Court in Fred Gorman v. Miner-Edgar Chemical Corp., 9 N. J. Mis. R. 180; 153 Atl. Rep. 271, affirmed the award which was thereafter paid in full by respondent, the opinion of the court being as follows:

"The case arises under the Workmen’s Compensation act. The commissioner found seventy-five per cent, of total disability. The Common Pleas Court on review found this view supported by the evidence. Petitioner was suffering from Paget’s disease, which prevents the uniting of bones. As a result of the accident, of which he complains, he broke his leg. The medical testimony is undisputed that the bones will never knit. The prosecutor contends that at the most there is a loss only of a leg. The testimony, however, supports no such conclusion. The man cannot work and cannot rest or sleep because of the pain. The fact that part of this trouble may be due to pre-existing disease does not inure to the benefit of the employer. Combination Rubber Manufacturing Co. v. Obser, 95 N. J. L. 43.
“The judgment will be affirmed, with costs.”

On July 16th, 1936, upon a petition for increased disability to which respondent filed its answer admitting such increase and its liability by reason thereof, it was stipulated at a hearing before me that the petitioner’s incapacity had progressed to the extent of one hundred per cent, of permanent and total disability, and that he was entitled to an additional allowance of compensation in the amount of twenty-five weeks at the rate of $17, or the difference between four hundred weeks, the period of compensation allowed under the act for disability equivalent to one hundred per cent, of permanent total, and three hundred and seventy-five weeks received pursuant to the previous award. An award was accordingly entered on the above basis and consented to by counsel. It was stipulated by counsel that the question of rehabilitation of petitioner would be referred for investigation. Compensation in accordance with the award was paid by the respondent; the final payment being made on November 16th, 1936.

Subsequent thereto petitioner submitted himself to the state rehabilitation commission pursuant to the requirements of paragraph 11(b) (Cum. Supp. Comp. Stat. 1911-1924, p. 3872, § **236-11 (b); chapter 95, Pamph. L. 1911, as amended by chapter 49, Pamph. L. 1923, p. 101), which commission, under date of January 27th, 1937, filed the following certification:

“After physical examination of Fred Gorman and examination of the record, it is the judgment of and the State Eehabilitation Commission hereby certifies that Fred Gorman is totally and permanently vocationally industrially incapacitated.”

There appears to be no dispute in this case but that the petitioner is entitled to have his compensation for disability total in character and permanent in quality continued after November 16th, 1936, the date on which the four hundred-week period terminated. The sole question in issue is as to whom are the extended payments of compensation chargeable.

It is contended by counsel for Miner-Edgar Chemical Corporation that such payments are properly chargeable to the one per cent, fund (chapter 81, Pamph. L. 1923; Cum. Supp. Comp. Stat. 1911-1924, § **236-92, as amended by chapter 55, Pamph. L. 1936; N. J. Stat. Annual 1936, § **236-92), on the ground that Gorman’s total disability is not due entirely to the accident, but rather to a combination of the effects of the said accident and some antecedent cause— Paget’s disease, and that by reason thereof he comes within the class of totally and permanently disabled persons, “having experienced a permanent disability under conditions entitling such persons to compensation therefor when such persons had previously been permanently and partially disabled from some other cause.” In support of its contention the respondent corporation produced four witnesses— employes of the Waterman Company — who testified that they knew Gorman during the period of his employment with the Waterman Company from 1925 to 1928, and that upon their several observations they noticed he walked with a limp. If such contention is tenable then it must necessarily follow that petitioner’s total disability is definitely ascribable to two separate and distinct causes which, operating- together, produce such result, namely, the limp, as the pre-existing or antecedent cause, and the fracture of the femur with its attendant complications, as the other or compensable cause sustained as a result of the accident. The evidence, however, quite clearly points to the contrary, establishing conclusively that the accident not only caused a severe leg injury with complete impairment of its use, but, more than that, it was the exciting cause of the activation of an underlying Paget’s disease, and hence petitioner’s total disability. While the primary injury was a broken leg, its effect was to cause such pain and discomfort that the petitioner thereafter could neither work nor sleep, and although he was afflicted with a limp prior to the occurrence of the mishap, this apparent abnormality, of itself, neither added to nor detracted from his present state of incapacity.

Counsel for the commissioner of labor, in urging that the respondent-corporation is liable for compensation beyond the four hundred-week period, contends that the accident alone has produced the petitioner’s present state of total incapacity, proof of which fact has been established by certain proceedings heretofore brought in this bureau, as well as by payment of the statutory four hundred weeks’ compensation by the said respondent in discharge of its liability therefor. Counsel relies upon the language of the statute (chapter 81, Pamph. L. 1923, supra, as amended by chapter 55, Pamph. L. 1936, supra), to wit: “In such cases the compensation payable from the said fund (one per cent, fund) shall cover that portion of the period (four hundred-week period) for which the employer is not legally responsible due to the permanent and partial disability suffered or possessed by the employe at the time that the employe sustained the injury as a result of which the employe became totally and permanently disabled,” and argues with great force that since Gorman has been compensated by the respondent for the full four hundred-week period by reason of total disability caused by the accident, obviously there is no such balance or portion of the four hundred weeks for which the one per cent, fund is chargeable. To this contention I find considerable merit, inasmuch as there can be little doubt but that the previous condition, for which the one per cent, fund seeks to compensate, must be permanently and partially disabling and capable of being fixed in definite percentage of disability. This previous permanent and partial disability must be as to its existence and extent, substantially as certain and as capable of ascertainment as previously incurred permanent partial disability through the loss of one hand, one arm, one foot, one leg, or one eye. A weakness, whether pathological or traumatic in origin, which does not become manifest until an accident occurs, is not ordinarily considered as a disability, being too indefinite and speculative for practical purposes.

The Workmen’s Compensation act prescribes no standard of physical fitness to which an employe must conform. Hence compensation is not based on any implied warranty of health or immunity from latent and unknown tendencies to disease, which may develop into positive ailments if incited to activity through an injury by accident arising out of and in the course of employment. While I am satisfied that the petitioner was afflicted with a pre-existing Paget’s disease — a bone disorder of unknown origin, characterized by gradual thickening and deformity of the bones, I feel equally satisfied that the said disease was dormant and quiescent until the day of the mishap and became disabling only thereafter upon being precipitated into a state of activity by reason of the accident.

The doctrine of aggravation of a previously impaired physical condition is well established not only in this jurisdiction but in many others. Acceleration of a dormant disease by trauma may constitute a personal injury, and such injury may be by accident, although it would not have been sustained by a perfectly healthy individual. It is a fundamental principle under the compensation statutes that an employer takes an employe subject to his physical condition when he enters the employment. Compensation benefits are not intended solely for the protection of employes in normal physical condition, but for those who may be in a subnormal state of health. In the leading case of Geisel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328, it was held “that death may be found as having been caused by an accident, although there was a diseased bodily condition prior to the injury, without which death would not have ensued, where the undeveloped and dangerous conditions are set in motion producing such result.”

Upon carefully considering the evidence in this case, I can reach no other conclusion than that the accident is the sole cause of petitioner’s total disability. Accordingly I find that the petitioner has established his right to further compensation from the respondent Miner-Edgar Chemical Corporation, beyond the four hundred-week period, pursuant to the provisions of 11(b).

I further find that Dr. Carl Keppler is entitled to a fee of $35 for his appearance in court and for giving expert testimony in behalf of the petitioner, payable by respondent Miner-Edgar Chemical Corporation. A counsel fee in the sum of $200 will be allowed Messrs. Haines & Chanalis, petitioner’s attorney, payable by the said respondent.

It is therefore * * * adjudged, determined and ordered, that judgment he entered in favor of the petitioner, Fred Gorman, and against the respondent Miner-Edgar Chemical Corporation, in the sum of $17 per week, payments to begin as of November 17th, 1936, and to continue thereafter without date so long as the disability remains total and permanent, subject, however, to such periodic reconsiderations and extensions as the case may require, or upon modification of the award by further order of this bureau.

% * * * * * *

And it is further ordered that the petition as against John J. Toohey, Jr., commissioner of labor, in so far as it relates to a claim for benefits under the one per cent, fund be and the same is hereby dismissed.

John J. Stahl, Deputy Commissioner.


author: Lawrence, S. C. C.

text:
    KENNETH CHIPMAN, BY HIS FATHER AND NEXT FRIEND, WILLIAM HENRY CHIPMAN; AND WILLIAM HENRY CHIPMAN IN HIS OWN RIGHT, PLAINTIFFS, v. PAUL CRAMER, INDIVIDUALLY AND TRADING AS FARMER’S DAIRY, DEFENDANT.
    Decided March 15, 1938.
    For the motion, Mair H. Auerbach.

    Opposed, Robert A. Lederer.

   Lawrence, S. C. C.

This motion is predicated on the theory that there are certain issues involved in the present suit which are pure matters of law and may be settled before trial, thus eliminating some of the defenses pleaded in defendant’s answer. Rules 40 and 94 of the Supreme Court are invoked.

The plaintiff Kenneth Chipman, a boy fourteen years of age, was employed by defendant to assist the driver of his milk truck in making daily retail deliveries. The hours of work were from two a. m. to eight a. m. each day, including Sunday. On September 28th, 1937, the boy was injured as the result of the alleged negligent operation of the truck by the driver, the accident arising out of and in the course of his employment. Instead of resorting to the Workmen’s Compensation act, chapter 95 of the laws of 1911, as amended; Rev. Stat. 1937, 34:15-1 (pp. 78) et seq., an action at law (the present suit) was brought to recover for the boy’s injuries, as permitted under article 2 to the effect that “nothing in this chapter contained shall deprive an infant under the age of sixteen of the right or rights now existing to recover damages in a common law or other appropriate action or proceeding for injuries received by reason of the negligence of his or her master.” Defendant in his answer pleads as separate defenses the fellow servant rule (see Butler v. Eberstadt, 113 N. J. L. 569; 175 Atl. Rep. 159), assumption of risk and contributory negligence. It is to these defenses that the motion here considered is addressed on the ground that they cannot in this suit be available to defendant at the trial as a matter of law.

In support thereof, it was urged in behalf of the infant plaintiff on the argument of the motion that the provision of article 1 of the Workmen’s Compensation act, supra (34:15-2), that the right of compensation shall not be defeated upon the ground that the injury was caused in any degree by the negligence of a follow servant, or that the injured employe assumed the risks inherent in or incidental to or arising out of his employment, which grounds were thereby abolished, applies and that defendant cannot consequently be exonerated for any such reason.

It may be suggested, however, that as a matter of fact the Workmen’s Compensation act has no application to the cause of action here involved, for the reason, as was pointed out in Butler v. Eberstadt, cited above, that neither of the articles of the act is applicable in a case of casual employment, and by like token it would seem to follow that if in the case of an infant the employment is illegal, provisions of the act as a whole would have no application in a suit as at common law to recover damages for injuries resulting from the negligence of the master. Boyle v. VanSplinter, 101 N. J. L. 89; 127 Atl. Rep. 257.

It was argued that defendant’s employment of the boy plaintiff, considering his age and hours of work, was in violation not only of the Child Labor laws (Pamph. L. 1914, ch. 253; 1918, ch. 204, and 1919, ch. 36; Rev. Stat. 1937, 34:2-4), but also of the School laws (Pamph. L. 1914, ch. 223; 1919, ch. 37; 1926, ch. 17, and Rev. Stat. 1937, 18:14-32), excepting as to children employed in agricultural pursuits. But whether these acts do apply to the case in hand appears at the moment to be a factual question for the determination of the jury at the trial on the submission of proper evidence as to the nature and character of the boy’s work, although the hours of employment, if shown by credible evidence, would appear to indicate a violation of one or more of the relevant acts. It is sufficient, therefore, to say that if it be found by the jury that the employment was illegal, the special defenses set forth in defendant’s answer would apparently not be available to him, in view of the holding in such cases as Feir v. Weil, 92 N. J. L. 610; 106 Atl. Rep. 402; Lesko v. Liondale Bleach Dye and Print Works, 93 N. J. L. 4; 107 Atl. Rep. 275; Volpe v. Hammersley Manufacturing Co. 96 N. J. L. 489; 115 Atl. Rep. 665, and E. Heller & Bros., Inc., v. Dillon, 96 N. J. Eq. 334; 125 Atl. Rep. 101. Also Watson v. Stagg, 108 N. J. L. 444; 158 Atl. Rep. 820, and Damato v. DeLucia, 110 N. J. L. 380; 166 Atl. Rep. 173.

It follows, in the circumstances, that the motion to strike the separate defenses, for such it is considered in effect to be, cannot be disposed of at this time, but will be denied, without costs, and without prejudice to a renewal at the trial, in the event that no factual controversy arises as to the illegality of the boy plaintiff’s employment; otherwise it may become an .issue for the determination of the jury under an adequate statement of the law applicable by the trial judge.


author: Per Curiam.

text:
    WILLIAM VOESSLER, PETITIONER-DEFENDANT, v. PALM FLETCHTELER & COMPANY, RESPONDENT-DEFENDANT, AND JOHN J. TOOHEY, Jr., STATE COMMISSIONER OF LABOR, RESPONDENT-PROSECUTOR.
    Submitted October term, 1937
    Decided January 8, 1938.
    Before Justices Bodine, Heher and Perskie.
    For the respondent-prosecutor, William J. Egan and Stephen J. Lorenz.

    For the petitioner-defendant, Henry Harris.

    For the respondent-defendant, Edwin J. O’Brien.

   Per Curiam.

The writ will be allowed.


text:
    VICTOR DAVAILLON, PROSECUTOR, v. THE CITY OF ELIZABETH, A MUNICIPAL CORPORATION IN THE COUNTY OF UNION AND STATE OF NEW JERSEY, AND THE CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, AND THOMAS P. LUCHIO, DEFENDANTS.
    Submitted October term, 1937
    Decided January 28, 1938.
    Before Justices Bodine, Heher and Perskie.
    For the prosecutor, Osborne, Cornish & Scheck (Harry V. Osborne and Ervin S. Fulop).

    For the city of Elizabeth, Edward Nugent.

    For Thomas P. Luchio, Daniel J. O’Hara.

    For the civil service commission, David T. Wilentz and John Solan.

   Per Curiam.

The writ will be allowed.


author: John C. Wegner, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER MESKO, PETITIONER, v. OVERMAN CUSHION TIRE COMPANY, RESPONDENT.
    Decided March 22, 1938.
    For the petitioner, Perry E. Belfatto.

    For the respondent, James J. Skeffington.

   H« Hi ^ H« H<

It appears that the petitioner, Peter Mesko, alleges that on the 10th day of June, 1936, while working cutting sheets of rubber, injured his right hand and arm. He testified that at the time this accident occurred he was earning $27.28 per week. He testified that on June 10th, 1936, while firmly gripping his knife to cut the rubber, it stuck, and he had to give it an extra effort, at which time he felt something snap in his hand and he had difficulty opening the fingers, one by one, forcing them with his left hand. He testified that he showed his hand to the foreman and told him what had occurred and that he was sent to Dr. Eubin, who saw him once or twice. He further testified that he returned to work and continued working for more than a year after the occurrence and that his hand did not get any better, but that he did not receive any further treatment from any physician. He testified that he was examined by Dr. Kralik and also by Dr. Koppel. He admitted that Dr. Eubin, after examining him, sent him to Dr. George in Newark for a further examination. He further testified that before this occurrence there was nothing wrong with his hand, that is, it was the same as his left hand, and that the treatment which he gave it on the advice of Dr. Rubin was to bathe it in Epsom salts and hot water day and night.

Dr. Joseph J. Kralik testified that he examined the petitioner on September 24th, 1937, at which time he found him to have a contraction of the tendons of the right hand, a distinct contraction of the tendons of the third and fourth fingers and possible contraction of the first and second fingers, an atrophy of the hypereminence and a loss of hyperextension of the right fourth finger over the fourth dorsal knuckle at the metacarpal phalangeal joint, which was enlarged. In his judgment, the dorsal surface was contracted. He found no difference in size in diameter of the arm or forearm as compared with the left arm. He estimated the disability at twenty-five to thirty per cent, loss of function of the right hand. He admitted that his conclusion of a causal relation between the alleged occurrence and the contracture of the man’s hand was predicated upon the facts given in the hypothetical question and that at the time he examined the man the condition was manifestly chronic and that he could not tell whether or not this chronic condition had existed prior to the date of the alleged occurrence.

Dr. Joseph Koppel also testified on behalf of the petitioner and stated that he examined him to-dajr at Dr. Arlitz’s office and he found a contraction of the palmar surface of the right hand at the base of the fourth metacarpal phalangeal joint and it extended to the middle of the little finger and also to the ring finger and to some small extent to the second finger. He found the man to have an inability to extend the little finger. He found a scar elevated from the hand and stated the condition was a Dupuytren’s contraction. The doctor estimated the disability at twenty-five per cent, loss of function of the hand, and considering the hypothetical question as propounded, he felt that there was a causal relation between the condition of Dupuytren’s contraction and the alleged occurrence. He admitted, however, that without the history of the occurrence as given in the hypothetical question, he could form no idea as to the length of time the Dupuytren’s contraction had been in existence. He admitted further that the Dupuytren’s contraction ordinarily comes on slowly and that it results from a series of repeated irritations, but that considering the hypothetical question, he felt in this case that the sudden jerk caused a tearing of the synovial sheath and an extravasation of fluid into the soft tissues and that the tendon slipped out and became contracted. He admitted that if such happened, there would be some acute evidence immediately following the occurrence.

Dr. A. A. Rubin, the attending physician, was called on behalf of the respondent and he testified that he first saw the petitioner on June 13th, 1936, at which time he asked him if he, had suffered an accident and the petitioner replied that he had not suffered an accident but that his repeated and constant use of the knife on the mixing mill over a long period of time had developed a thickening in the palm of his hand near the base of the small finger. The doctor stated that he examined the petitioner and found him to have a contraction of the tendon of the right small finger, or what is known as a Dupuytren’s contraction. He stated that the man had told him that this condition had been in existence for a long period of time, a matter of years. He stated that there were no acute signs of any trauma to the part involved at the time of his examination of the man, which was three days after the alleged accident. Further than that he stated that the man definitely told him he had suffered no accident. He stated that he saw the petitioner again on the 15th of June and referred him to Dr. George for corroboration of diagnosis. He stated that he recommended to the man that he bathe his hand in an Epsom salts solution. He stated definitely that there was no evidence of a tearing of the synovial sheath or evidence of an extravasation of fluid into the soft tissues, nor was there any evidence that the tendon of the small finger had popped out and become contracted at the time when he first examined the petitioner, and that his examination revealed a long-existing thickened contracture of the flexion tendon of the right small finger which, in his opinion, had come about as a result of the occupational use of the knife on the part of the petitioner over a long period of years.

Dr. M. E. W. George testified that he saw the petitioner on June 19th, 1936, at which time the petitioner advised him that he liad suffered no accident but that for many years he had been employed doing the same kind of work, which necessitated firmly gripping a knife in his right hand and that for many years he had been unable to straighten out the middle and ring fingers, but that this condition had come on gradually from the constant and repeated use of the knife. He further testified that petitioner advised him that he had been under the care of Dr. Rubin, who had given him some Epsom salts fomentations. The doctor stated that the right upper extremity of the petitioner presented a Dupuytren’s contraction of the right hand, involving chiefly the little and ring fingers. The doctor stated that the condition was clearly not the result of an accident and moreover the petitioner definitely advised that there had been no accident. He stated that there was no evidence on the occasion of his examination of any acute exacerbation or aggravation of the Dupuytren’s contraction at that time, nor was there any evidence of a tearing of the synovial sheath or an extravasation of fluid into the soft tissues and no evidence of any ecchvmosis or other indicia of an acute condition.

Mr. Works, the superintendent, testified that the petitioner on or about the 10th of June showed him his hand hut did not say that he had suffered an accident. He told him that his hand hurt and for that reason he sent the petitioner to Dr. Rubin so as to determine just exactly what the condition was of which the petitioner was complaining. He stated, however, that the petitioner made no mention of having suffered an accident or that his condition was caused by an accident. He further described in detail the operation performed by the petitioner and demonstrated how it would he practically impossible for the petitioner to suffer a jerk or unusual strain of his hand while cutting the rubber.

Petitioner’s foreman also took the stand and testified that petitioner had shown him his hand about the 10th of June and said that he was having difficulty in straightening out his little finger but definitely stated that he did not have any accident, but because of the condition of the petitioner’s finger, his foreman sent him to the office to be relayed to Dr. Rubin for such attention as might be necessary under the circumstances. The foreman stated that at no time did the petitioner ever complain to him that he had suffered an accident arising out of and in the course of his employment.

After carefully considering the testimony adduced on behalf of the respective parties, I am satisfied that the petitioner is suffering from a Dupuytren’s contraction due to an occupational condition and that he did not suffer an accident arising out of and in the course of his employment.

It is, therefore, this 22d day of March, 1938, ordered that the petition be and the same is hereby dismissed.

John C. Wegner, Referee.


author: Jayne, S. C. C.

text:
    THE BOARD OF EDUCATION OF THE TOWNSHIP OF MOUNT LAUREL, IN THE COUNTY OF BURLINGTON, PLAINTIFF, v. EDWARD L. GODFREY, JAMES J. LAVERY, WILLIAM H. GODFREY, AND THE MARYLAND CASUALTY COMPANY, A CORPORATION, DEFENDANTS.
    Decided April 6, 1938.
    For the plaintiff, Davis & Davis.

    For the defendants Edward L. Godfrey, James J. Lavery and William H. Godfrey, George B. Evans.

    For the defendant Maryland Casualty Company, Cecil W. Rotzell.

   Jayne, S. C. C.

The present motion occasions consideration of the substantiality of certain defenses averred in the answers fded by the defendants. A perfunctory sketch of the material allegations of the complaint will sufficiently exhibit the relative application and defensive aim of the averments of the answer.

The present action is being prosecuted to recover from the defendants a pecuniary loss which it is alleged the township school district has suffered in consequence of the malfeasance of the defendant Edward L. Godfrey, who officiated as custodian of the funds of the district.

The complaint alleges that on November 4th, 1930, Edward L. Godfrey was elected collector of taxes of the township of Mount Laurel. He assumed the duties of that office on January 1st, 1931. Under date of January 7th, 1932, he and the defendants James J. Lavery and William H. Godfrey executed and delivered to the township a bond in the sum of $12,000 for the faithful performance of the duties of Edward L. Godfrey in the office of collector of taxes. It is observed that the span or period of time intended to be encompassed by the bond is not in anywise expressed in the instrument. Thereafter from January 1st, 1933, until January 1st, 1936, the defendant Edward L. Godfrey and the defendant Maryland Casualty Company executed and delivered to the township a bond and annual supplemental certificates in the sum of $4,000 likewise to secure the faithful performance by Edward L. Godfrey of his duties as collector of taxes during these years. Additionally the complaint declares that Edward L. Godfrey from January 1st, 1931, until January 1st, 1936, functioned as the custodian of the moneys-of the school district and in the particulars mentioned in the complaint “knowingly, corruptly, feloniously, fraudulently and illegally” paid out and disbursed from the funds of the school district the certain specified sums of money.

It is contended on behalf of the plaintiff that the bonds given and underwritten by the defendants to insure the faithful performance by Edward L. Godfrey of his duties as collector of taxes of the municipality likewise, by statute, secured the faithful performance by him of his duties as custodian of the school moneys.

The defenses embodied in the answers of the defendants and to which the present motion is addressed, are somewhat numerous. They can, however, be federated and, for the determination of the present motion, so grouped as to constitute the averment of three prime defenses.

Succinctly stated, it is averred:

Eixst (in behalf of the defendants, James J. Lavery and William H. Godfrey) that the bond was unlimited as to time and that upon the acceptance of the bond of Edward L. Godfrey underwritten by the Maryland Casualty Company for the year beginning January 1st, 1933, these defendants were thereby discharged from liability for any official misbehavior of Edward L. Godfrey which occurred after January 1st, 1933.

Secondly (on behalf of all of the defendants), that Edward L. Godfrey as collector of taxes was never designated by the board of education as the custodian of the school moneys of the district.

Thirdly (on behalf of all of the defendants), that all of the disbursements made by Edward L. Godfrey as custodian of school moneys were in pursuance of warrants or orders signed by the president and district clerk of the board of education.

In like order each group of defenses, thus catalogued, will be considered.

It is also to be understood that counsel have submitted a stipulation relative to certain basic and pertinent facts.

The first, then, to be examined are the so-called separate defenses which deny that the bond executed by the defendants Edward L. Godfrey, James J. La very and William H'. Godfrey, was in effect after January 1st, 1933, and which aver that this bond was discharged merely because it was not annually “renewed” and because the township accepted each year a bond underwritten by the Maryland Casualty Company. A copy of this bond is attached and made a part of the complaint. The duration of the bond is not therein stated. It is indubitably the rule that, in such cases, the obligation, by intendment, is co-extensive with and confined to the official term of the principal about to commence or current at the time such bond comes into existence. Where the words of a bond are wholly uncommunicative of the period of time to be embraced by the bond and the obligation is to secure the good conduct of a person elected or appointed to a public office for which a definite term is then prescribed by law, the irresistible inference is that the sureties intended to remain bound for that term and for that term alone. Mayor, &c., of Rahway v. Crowell, 40 N. J. L. 207; Citizens' Loan Association v. Nugent, 40 Id. 215; Peoples’ Building and Loan Association v. Wroth, 43 Id. 70; Camden v. Greenwald, 65 Id. 458; 47 Atl. Rep. 458; 9 C. J. 44. The conclusion is that the bond given by these defendants on January 7th, 1932, continued to be legally effectual and obligatory for the remainder of the then current term of office of Edward L. Godfrey as collector of taxes. The mere circumstance that the collector subsequently delivered to the township another bond or bonds with the same or like obligation and condition, does not of itself cancel or discharge the bond previously given to and continuously retained by the township.

These defenses therefore appear to be frivolous.

Next to be considered are those defenses which aver that Edward L. Godfrey as collector of taxes was never designated by the board of education as the custodian of school moneys. Singularly, it transpires that Edward L. Godfrey was not only the collector of taxes but also the treasurer of the township. It is presumed that he presented to the township appropriate bonds relating to his faithful service in each of such offices. The pertinent part of the statute concerning the appointment of the custodian of the school funds is as follows: “The person designated by law as the custodian of the moneys belonging to the municipality in which the school district shall be situate, or the collector, when designated by such board of education, shall be the custodian of the school moneys of such district, * * 2 Cum. Supp., p. 3230, § 185-185; 1 Rev. Stat. 18:5-53. The statute also declares that “the bonds given by said collector or other person for the faithful performance of his duty as such officer, shall be held to cover and secure the faithful performance of his duty as custodian of school moneys, and the bondsmen thereon shall be liable therefor; * *

The controversial point at once arises whether Edward L. Godfrey became custodian of the school moneys of the district, virtute officii, because he was the person designated by law as the custodian of the moneys of the municipality in which the school district was situate or whether he, as collector of taxes, was designated custodian of the school moneys by the board of education. These defendants other than Edward L. Godfrey, himself, are sureties on the bonds appertaining to his service as collector. Mr. Justice Parker in Connolly v. Smith, 86 N. J. L. 466, 467; 91 Atl. Rep. 1034, stated: “By section 185 of the School act, as amended by Pamph. L. 1912, p. 507, the custodian of school moneys in a municipality is the collector when so designated by the board of education, otherwise he is the ‘person designated by law as the custodian of the moneys belonging to the municipality in which the school district shall be situate.’ In the case of a township such ‘person’ is the treasurer.”

It is said that in searching the minutes of the board of education for some memorial of the action of the board, it was discovered that Edward L. Godfrey was appointed custodian but the record of this action of the board is barren of any reference to either of the official positions which he then held in the municipality.

Sufficient has been stated to exhibit the truly debatable character of the issue created by these defenses. They are neither so palpably or inherently false or so obviously unsubstantial, idle and frivolous as to warrant the allowance of a rule striking them from the answers.

The third group of defenses deny that the custodian was guilty of any malfeasance in the particulars alleged in the complaint because, as averred, all of the alleged disbursements were made by him on warrants signed by the president and district clerk, presumably in conformity with the mandatory provisions of the statute.

The custodian, under the statute, is required to hold in trust all moneys belonging to the school district and to pay out moneys only on warrants signed by the president and district clerk or secretary of the board of education. Each warrant must specify the object for which it is given and must be made payable to the order of the person entitled to receive the amount named therein. Pamph. L. 1928, ch. 165. p. 328. The custodian is not concerned with the expenditure of the money raised for school purposes or with the application of the moneys to the purpose for which they were raised. Zim merman v. Mathe, 49 N. J. L. 45; 7 Atl. Rep. 674. This subject was also considered by Goldberger, D. C. J., in Brady v. Board of Education of Carteret, 10 N. J. Mis. R. 358; 158 Atl. Rep. 747, and by the commissioner of education and by the state board of education in Board of Education of Borough of Hampton v. Melick, whose conclusions may be found reported in the 1928 volume of School Law Decisions.

The scope of these decisions must not, however, be unjustifiably expanded.

It is to be observed that the present complaint not only alleges that the disbursements made by the custodian were for illegitimate purposes, but also that the custodian corruptly and fraudulently made them with knowledge of the illegal misappropriation of such funds.

The mere circumstance that the disbursements were made on warrants signed by the president and district clerk will not in all circumstances completely absolve the custodian and his sureties from liability. A simple illustration will serve to explode such a notion. Suppose the president and district clerk should corruptly draw a warrant for a large sum of money payable to the custodian and the custodian, well knowing that he was not entitled to the amount named therein, nevertheless signed the warrant and collected the proceeds.

In each answer will be found a denial that the custodian knowingly, corruptfy and fraudulently made any improper or illegal disbursements. This third group of defenses is therefore supplementary. They may or may not be availing to the defendants depending upon the circumstances disclosed by the evidence at the trial. The factual circumstances accompanying and surrounding the conduct of the custodian may be largely influential in determining the liability of the defendants on this branch of the case. The motion to strike from the answers the third group of defenses is also denied.

From the conclusions here expressed a rule in appropriate and specific form may be prepared and presented.


text:
    THERESA McSWEENEY, PLAINTIFF, v. EQUITABLE TRUST COMPANY, A CORPORATION, DEFENDANT.
    Decided April 18, 1938.
    For the plaintiff, Bilder, Bilder & Kaufman (Morris M. Schinitzer, of counsel).
    For the defendant, Moore & Butler (Merritt, Lane, of counsel).
   Jayne, S. C. C.

This motion was made on behalf of the plaintiff for the allowance of a rale striking ont the answer filed by the defendant in this action. A precursory reference to the allegations of the complaint and to the averments of the answer suffices to exhibit the controversial points debated by counsel. Affidavits have been submitted which more definitely disclose the underlying factual situation but it is not observed that aim fact of influential legal significance is in dispute. The complaint alleges that on September 1st, 1933, tbe plaintiff was a depositor of the defendant institution. On that date there remained credited to her general account the sum of $19,197.57 and to her savings or interest account the sum of $176,360.99. The complaint declares that the defendant thereafter refused to pay to her the full amounts credited to her accounts and offered and tendered to her a stated number of shares of the preferred stock of the defendant company, which the plaintiff rejected and declined to accept, hence the plaintiff prosecutes this action to recover from the defendant the sum of $195,558.56 with interest.

The averments of the answer describe the prevailing economic conditions which were then provoking a widespread ■financial depression endangering the solvency of banking institutions. The answer refers to the banking holiday proclaimed in March, 1933, by the president of the United States and by the governor of this state; the opening of the defendant bank on a restricted basis under the authority of the Altman act and the ultimate reorganization of the company with the approval of the commissioner of banking and insurance pursuant to chapter 116, Pamph. L. 1933, as amended. Additionally, it is averred that after the resumption of business by the defendant under its amended charter, the plaintiff availed herself of the immediate credit of five per centum of her deposits and for a designated period thereafter continued to deposit with and withdraw funds from the defendant company. 'Moreover, it is pleaded in the answer that the Federal Reserve Bank of Philadelphia, the Reconstruction Finance Corporation, the Pennsylvania Company of Philadelphia, the Guarantee Trust Company of New York, who were creditors of the defendant, subordinated their claims to those of the new depositors in consequence of the reorganization of the company.

The reasons written down by counsel for the plaintiff in support of the present motion are that chapter 116, Pamph. L. 1933, as amended by chapters 195, 287, 407 of Pamph. L. 1933, is unconstitutional because in conflict with article I, section 10 and with section 1 of the fourteenth amendment of the constitution of the United States and in conflict with clauses 1 and 16 of article I of the constitution of New Jersey and that the factual averments of the answer are insufficient in law to estop the plaintiff from the prosecution of this action.

The affidavits verify all of the material averments of fact embodied in the answer concerning the reorganization of the defendant company in conformity with the statute of 1933. On August 23d, 1933, the -commissioner of banking and insurance evidently determined that the proposed plan of reorganization was fair and equitable to all depositors, creditors and stockholders of the defendant company and likewise in the public interest. This is the basic standard established by the statute for the guidance of the commissioner. Pamph. L. 1933, ch. 287, p. 770. The reorganization was approved by the commissioner. On January 6th, 1934, the restricted or so-called frozen deposits were converted into preferred stock. On February 1st, 1934, the defendant was thus enabled to reopen its doors for business. The plaintiff did not affirmatively assent to the transition of her credits from frozen deposits into shares of preferred stock. A copy of the amended certificate of incorporation of the defendant accompanies the affidavits. It provides, inter alia, that: “So dividends or other earnings shall be paid to the holders of common stock until all the preferred stock shall have been redeemed and all dividends due thereon fully paid and/or all of said preferred stock converted into common stock as herein provided for. * * * In the event of any liquidation or dissolution or winding up (whether voluntary or involuntary) of the corporation, the holders of the preferred stock shall be entitled to be paid in full their redemption price of Thirty ($30.00) Dollars per share for said preferred stock and the unpaid dividends accrued thereon, before any amount shall be paid to the holders of the common stock * * The foregoing charter provisions are in harmony with the pertinent terms of the statute.

Section 6 of the statute (Pamph. L. 1933, § 6 — at p. 428) is here quoted: “Subscriptions to such preferred stock may be paid for either in cash or by an off-set in the same amount against any deposit, balance or balances on the books of such bank, trust company or savings bank, or partly by cash and partly by such off-set against deposit balance, or balances, or may with the approval of the commissioner of banking and insurance, be paid for by assets in which such bank, trust company or savings bank may lawfully invest.”

Section 8 (Pamph. L. 1933, at p. 244) is as follows: “In any reorganization which shall have been approved and shall have become effective as provided herein, all depositors and other creditors and stockholders of such bank, trust company or savings bank, whether or not they shall have consented to such plan of reorganization, shall be fully and in all respects subject to and bound by its provisions, and claims of all depositors and other creditors shall be treated as if they had consented to such plan of reorganization.”

The predominate question projected for determination by the present motion obviously relates to the constitutionality of the act of 1933. Concerning this question there exists some divergency of opinion among some of my brethren of the Circuit Court bench. Basen v. Clinton Trust Co., 13 N. J. Mis. R. 252; 177 Atl. Rep. 675; reversed on other grounds, 115 N. J. L. 546; 181 Atl. Rep. 67; Newman v. Asbury Park, &c., Bank, 15 N. J. Mis. R. 395; 191 Atl. Rep. 864. Assuredly, a statute should not be declared unconstitutional unless its unconstitutionality is clearly apparent and definitely perceived. All doubts should be resolved in its favor. The statute of 1933 and its amendments were enacted by the legislature in the exercise of the police power of the state. Initially, it is the function of the legislature to determine the existence of conditions and exigencies which call for the exercise of the sovereign police power. The police power, its availability and application for the general public welfare are subjects which have been so studiously examined and so elaborately expounded in the current decisions of our courts that any general treatment of these subjects now becomes repetitious and redundant.

When it is asserted, appropriately, that the regulations imposed in the exercise of the police power violate the fundamental law and overstep constitutional limitations, then it is within the jurisdiction of the courts to determine whether the particular subject of the police regulation falls within the range of this sovereign power and whether the regulations so imposed and the means so adopted are- reasonable and fairly suitable and appropriate'for the accomplishment of the purpose in view.

Ill considering the fitness, propriety, scope and extent of the police power employed, there is sound reason to determine the character of the activity or business over which the power is to be exerted, for the police power is a sovereign right of the government existing essentially to protect the lives, health, morals, comfort and general welfare of the people.

It is said that “banks are to the commercial world what arteries are to the human system.” Cartnell v. Commercial Bank and Trust Co. (Court of Appeals, Kentucky, 1913), 153 Ky. 798; 156 S. W. Rep. 1048, 1049. The business of banking is undoubtedly affected with a vital public interest. In re Mechanics Trust Co., 119 N. J. Eq. 141; 181 Atl. Rep. 423, replete with pertinent citations. Bank failures are now serious public calamities. The power to stringently regulate arises from the fact that the banking business is coupled with a public interest and the public welfare requires and justifies reasonable regulations and restrictions. The right of the defendant to conduct a banking business has at all times since the incorporation of the company been subject to reasonable regulation under the reserved police power. The financial stability and the liquidation of banks are matters of general public interest and are thus within the latitude of the police power. The economic injury to the welfare of a community occasioned by the liquidation of its banks is now a matter of common knowledge. Recent experience has disclosed that hasty or forced liquidation results in a destruction of economic values to the injury of depositors and others.

The notion that the police power cannot be exercised in any field of activity if it in any slight degree affects or impairs contracts previously entered into between individuals is purely illusory. The sovereign right to safeguard the general welfare of the people and to promote the common weal is paramount to the contractual rights of individuals. State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504 (at p. 519); 179 Atl. Rep. 116; Hourigan v. North Bergen Township, 113 N. J. L. 143, 149; 172 Atl. Rep. 785. In State v. Brand, 58 Sup. Ct. Rep. 450, Mr. Justice Roberts stated, “our decisions recognize that every contract is made subject to the implied condition that its fulfillment may be frustrated by a proper exercise of the police power * * Home Building and Loan Association v. Blaisdell, 290 U. S. 398; 54 Sup. Ct. 231; 78 L. Ed. 413; 88 A. L. R. 1481; Treigle v. Acme Homestead Association, 297 U. S. 189; 56 Sup. Ct. 408; 80 L. Ed. 575; 101 A. L. R. 1284; Hourigan v. North Bergen Township, supra.

The very existence of laws presupposes human beings living in a social complex and certainly contracts made with institutions affected with a public interest are inherently subject to the paramount power of the sovereign state to enact through the legislature additional remedial legislation in the interest of the public welfare, prescribing the supervision, regulation or liquidation of such corporations.

In the recent case of Bucsi v. Longworth Building and Loan Association, 119 N. J. L. 120; 194 Atl. Rep. 857, our Court of Errors and Appeals held that chapter 102, Pamph. L. 1932, limiting withdrawals from building and loan associations was a valid exercise of the police power of the state for an end that is in fact public. The contract between the building and loan association and the member was said to be congenitally affected with a public interest and carried with it the infirmity of the subject-matter.

In Doty v. Love, 295 U. S. 64; 55 Sup. Ct. 558; 79 L. Ed. 1303, a statute of Mississippi relating to the reorganization of closed banks and quite similar to our statute, was alleged to be in contravention of the provisions of the constitution of the United States. It was resolved that the statute was constitutional.

The Court of Appeals of New York in Shepherd v. Mount Vernon Trust Co., 269 N. Y. 234; 199 N. E. Rep. 201, was recently concerned with an action in which the plaintiffs sought to recover their deposit from the reorganized trust company. The factual situation closely resembles that of the present ease. The judgment dismissing the complaint was affirmed.

Vice-Chancellor Egan in In re Mechanics Trust Co., supra, concluded that our statute was not in conflict with the state or federal constitution.

The conclusions expressed in Baldwin v. Flagg, 43 N. J. L. 495; Moore v. Splitdorf Electric Co., 114 N. J. Eq. 358; 168 Atl. Rep. 741, and Vanderbilt v. Brunton Piano Co., 111 N. J. L. 596; 169 Atl. Rep. 177, have no determinative bearing upon the question in hand. Bucsi v. Longworth Building and Loan Association, supra.

The statute of 1933 in reality supplied a method of liquidation which, in the existing economic conditions, was reasonably necessary not only for the better protection of the depositors and other creditors, but also for the common good of the public. The plan under which the defendant company was reorganized was deemed by the commissioner of banking and insurance to be fair and equitable to all depositors, creditors and stockholders of the institution and likewise in the public interest. It is not made apparent that his judgment was groundless or erroneous. The plan of reorganization also received the approval of the substantial majority of those directly interested. What disadvantage does the plaintiff suffer. The bank was closed. Her right to demand payment of the amount of her deposits was suspended. Liquidation would otherwise have been undertaken by the banking commissioner or a receiver. As a result oE the reorganization, the bank has been authorized to resume business, each depositor has received a percentage of his or her deposit and the claim of each depositor for the balance of the indebtedness is evidenced by a proportionate amount of preferred stock which,’ in accordance with the provisions of the amended charter, is to be gradually retired. In view of the ultimate outcome of the plan, the status of the parties has not been essentially changed. The plan of reorganization is of the nature of a composition agreement intended to be made effective either by the unanimous consent or by provision of the statute in other stated circumstances. Obviously it was not the intention of the legislature in the enactment of this statute to liberate the banks from their obligations to their depositors. The manifest purpose of this legislation was to enable the creditors to take united action, consistent with the public interest, for the more auspicious recovery of their debts. An individual may not justly complain of a reasonable legislative invasion of his usual rights when a situation arises which property calls for the imposition of such a restriction for the purpose of averting immediate and impending dangers which threaten the general welfare. There is no mathematical formula or unchanging yardstick by which in all circumstances the validity of a statute can always be confidently determined. “Every case must be determined on its own circumstances.” Von Hoffman v. City of Quincy, 4 Wall (U. S.) 535, 534; 18 L. Ed. 403. “Circumstances may so change in time or so differ in space as to clothe with a public interest what at other times or in other places would be a matter of purely private concern.” State Board of Milk Control v. Newark Milk Co., supra. It has long been the established rule that if there be a permissible doubt whether an act of the legislature transgresses constitutional limitations, the courts will not declare the act invalid. The legislature is supreme in its proper sphere. Its enactments should not be nullified unless it clearly appears that the legislature by such enactments overstepped the existing constitutional inhibitions.

Here we are concerned with the present rights of the plaintiff. In the consideration of the asserted claims of individuals, there is always a strong motivating impulse to follow that intuitive sense of what is just or unjust. The answer embraces averments which reveal that the plaintiff availed herself of some of the benefits and advantages of the reorganization. The present action was not instituted until years had elapsed following the reorganization. Meanwhile the plaintiff was aware of the course of action taken by most of her fellow depositors and of the actual continued operation of the reorganization plan. Certainty it might be inferred from such facts that she heretofore acquiesced in the plan and in its pursuit by those who were similarly or otherwise situated.

"Where a constitutional provision is designed for the protection solely of the property rights of the citizen, it is competent for him to waive the protection and to consent to such action as would be invalid if taken against his will.” 1 Cooley Const. Lim. (8th ed.) 368.

Waiver and estoppel are, so to speak, of the same family. These terms are at times employed as if they were convertible or synonymous. Each has, however, its characteristic or distinguishing significance. Central Bd. Co. v. MacCartney, 68 N. J. L. 165, 175; 52 Atl. Rep. 575; Crawford v. Winterbottom, 88 N. J. L. 588; 96 Atl. Rep. 497; Freeman v. Conover, 95 N. J. L. 89; 112 Atl. Rep. 324. The appropriate force of each doctrine is to prevent injustice. In Shepherd v. Mount Vernon Trust Co., supra, Judge Lehman remarked: “They cannot assert the invalidity of the proceedings and at the same time share in the benefit resulting from such proceedings. That conclusion is based upon well-recognized principles of fairness and justice, and in accord with an unbroken line of judicial authority. It is immaterial whether we classify these principles in the category of estoppel or of waiver or of implied consent.” Although the plaintiff was fully informed of the proposed plan of reorganization and although she personally declined to consent, she was aware of the action of the other depositors which resulted in its adoption. She did not promptly challenge its validity and assert the impairment of her contractual rights, but chose to accept the immediate payment of a portion of her deposits and continued to utilize the reorganized bank as a depositary of her funds. It might be inferred from evidence to be adduced under some of the averments of the answer that the plaintiff thus exhibited an indifference to the alleged abridgement of her rights and in reality an acquiescence in the reorganization proceedings. Unaccountable and inexcusable delay in the assertion of a private right can logically support a conclusion of the acquiescence in its loss. The evidence might be such as to enable the defendant to successfully invoke the doctrine of estoppel under the authority of Basin v. Clinton Trust Co., 115 N. J. L. 546, 548; 181 Atl Rep. 67.

Therefore the defenses to which the motion is addressed are neither so palpably or inherently false or so obviously unsubstantial, idle and frivolous as to warrant the allowance of a rule striking out the answer.

The filing of the foregoing memorandum was deferred to await the opinion of the Court of Errors and Appeals in Newman v. Asbury Park and Ocean Grove Bank, 120 N. J. L. 122. The opinion now rendered and filed in the Newman ease amply supports the denial of the motion in the present action.

The motion is accordingly denied.


author: Caffrey, C. C. J.

text:
    Essex County Circuit Court.
    FEDERAL DEPOSIT INSURANCE CORPORATION, A CORPORATION EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE UNITED STATES OF AMERICA, PLAINTIFF, v. L. J. (ALSO KNOWN AS LIBORIO JOHN) MANGIARACINA, DEFENDANT.
    Argued March 18, 1938
    Decided March 25, 1938.
    For the plaintiff, Andrew F. Zazzali.

    For the defendant, David Levy.

   Caffrey, C. C. J.

This is a motion in behalf of the plaintiff, for an order to strike out the defendant’s demand for security of costs.

The plaintiff, in the complaint averred to be “a corporation existing under and by virtue of the laws of the United States of America, having its principal office in the city of Washington, District of Columbia,” alleges that it is the present holder of two promissory notes each in the principal sum of $1,000 made by the defendant, endorsed and delivered by him to the Central Bank and Trust Company and by said company endorsed over to the plaintiff. It is alleged that said notes were presented for payment on the due dates at the place where payable, and the same were not paid.

The Federal Deposit Insurance Corporation was organized under authority of the Banking act of 1933, approved by the president on June 16th, 1933 (Public, No. 66, 73d Cong.). This act was amended hv Public, No. 363, approved June 16th, 1934 (73d Cong.), by Public Resolution No. 38, approved June 28th, 1934 (74th Cong., and by the Banking act of 1935, approved August 23d, 1935 (Public, No. 305, 74th Cong.).

The management of the corporation is vested in a board of directors of three members, two of whom are appointed by the president by and with the advice and consent of the senate, the third member being the comptroller of the currency.

The chief function of the corporation is to insure the deposits of all banks which are entitled to the benefits of insurance under the law, to the extent of $5,000 for each depositor.

The second function of the corporation is to act as receiver for insured banks which fail.

Subsection “j” of section 12-B of the Banking act of 1935 under title I relating to federal deposit insurance provides in paragraph fourth that the federal deposit insurance corporation shall have the power “to sue and be sued, complain and defend, in any court of law or equity, State or Federal. All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States: Provided, That any such suit to which the Corporation is a party in its capacity as receiver of a State bank and which involves only the rights or obligations of depositors, creditors, stockholders and such State bank under State law shall not be deemed to arise under the laws of the United States. No attachment or execution shall be issued against the Corporation or its property before final judgment in any suit, action, or proceeding in any State, county, municipal, or United States court. The board of directors shall designate an agent upon whom service of process may be made in any State, Territory, or jurisdiction in which any insured bank is located.”

As referred to supra, the term “State bank” means any bank, banking institution, trust company, savings bank, or other banking institution which is engaged in the business of receiving deposits and which is incorporated under the lav>s of any state.

The Corporation, under the act, is entitled to the free use of the United States mails in the same manner as the executive departments of the government.

The defendant contends that the corporation, by reason of its having its principal office in the city of Washington, District of Columbia, is a foreign corporation, and therefore required to deposit security for costs in this court. However, it is elementary that the seat of government of the United States, is in the District of Columbia and that “the United States, in their sovereign capacity, have no particular place of domicile, but possess, in contemplation of law, a ubiquity through the union.” Vaughan v. Northrup, 15 Pet. 1, 6; 10 L. Ed. 639.

This court is of the opinion that the Federal Deposit Insurance Corporation is an instrumentality created by the government for the public welfare. It is financed by the government and is not a corporation organized for private profit. As a government agency, it may be considered as a corporation of the United States, created by Congress as hereinabove stated. It is not a foreign corporation within the meaning of our state law. The corporation, so far as they partake of the sovereign character of the United States, are subject to suit and judicial process only as Congress may determine. There is no authority under the act for this court of a power to impose a limitation upon the corporation in the discharge of its statutory duty, by requiring the corporation to deposit security of costs in this cause. That Congress has power to create a corporation as an agency of the government to fulfill governmental purposes and to endow it with powers of a private corporation is not now open to question. United States v. Doherly, 18 Fed. Supp. 793, and cases cited (at p. 794).

This court cannot impose a restriction upon the corporation that it does not impose upon resident corporations.

The motion for an order to strike out the defendant’s demand for security of costs will be granted. An order may be submitted accordingly.

Ho costs will be allowed upon this motion.


author: John C. Wegner, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RAYMOND JOHNSEN, PETITIONER, v. STANDARD CAP AND SEAL CORPORATION, RESPONDENT.
    Decided April 12th, 1938.
    For the petitioner, Lichtenstein, Schwartz & Friedenberg (by Howard Engel).

    For the respondent, Cox & Walburg (by Arthur Mead).

   Á formal petition having been filed in the above matter, claiming compensation by the petitioner against the respondent under and by virtue of the terms of the Workmen’s Compensation act of New Jersey, with supplements and amendments thereto, and an answer having been duly filed and the case being noticed for trial, and the parties appearing before me at Jersey City, and testimony being taken in my presence on February 18th, March 9th, March 16th and March 23d, 1938, I find and determine as follows:

1. The petitioner testified that while working for the respondent on February 14th, 1936, he sustained an accident while taking a heavy roll of cardboard from a truck. He was struck in the region of the right groin and felt a sharp pain, and after a few minutes, continued to work and worked approximately an hour and a.half, when he stopped work and went home. He did not go to work the following day, which was Saturday, and when he awoke that day, he noticed, in the region of the right groin, a swollen condition, and felt sharp pain, so that he was unable to arise without great pain. He showed his father the condition, and remained at home that day and Sunday. On the following day, Monday, he reported the accident and was sent to the company doctor, who examined and treated him, but a further condition developed so that he was eventually sent to New York, where he was operated upon by Dr. Greenberger at the Manhattan General Hospital. After leaving the hospital, he received treatment from Dr. Greenberger, and when finally discharged from treatment, he returned to the respondent’s plant for work, but was sent to a Dr. Klemes, who, in turn, sent him to the Yorkville Clinic of the New York City board of health for examination. Subsequently, he was sent to the board of health clinic in Bay Bidge for examination, and eventually, on July 12th, 1937, he was sent to the Kingston Avenue Hospital, in Brooklyn, New York. He stated that previous to his accident, he was athletic, active and in good health, and at one time was enrolled in a military camp. He stated that in the spring of 1936, he commenced losing weight, lost his appetite and energy, and perspired easily, and also developed a cough; in the summer, he felt weak in addition to having the other symptoms, so that he would go to the beach in the afternoon and lie in the sun, sleeping, most of the time. Ho stated that in November and December of 1936, he obtained some work before Christmas in a department store in Brooklyn, but did not work steadily, and one day noticed a pain and swelling on the left side of his groin, which seemed to him similar to that which he had on the right side immediately after the accident. He further stated that he again had developed a cough at this time, and when the condition appeared on his life side, he sought medical aid, and eventually, he was sent to the Kingston Avenue Hospital, from which he was discharged on February 10th, 1938. He states that now his appetite and weight are better, and that he does not feel so weak as when he entered the hospital, but he is entered in the Municipal Tuberculosis Sanatorium at Otisville, New York, for treatment of pulmonary tuberculosis which he has, and his right lung is partially collapsed by artificial pneumothorax.

2. All the medical records, including the records of Manhattan General Hospital, Kingston Avenue Hospital, and the Yorkville and Bay Ridge clinics of the New York City department of health, together with the X-ray photographs taken in said hospitals and at said clinics, were introduced into evidence by consent.

3. On behalf of petitioner, Dr. George R. Horton testified. He was one of the attending physicians who treated the petitioner at the Kingston Avenue Hospital, and he also testified as an expert urologist. He expressed his opinion that the accident of February 14th, 1936, caused an activation of a dormant tubercular condition, first in the right epididymis, and then spreading to the left seminal vesicle, vas deferens and epididymis, and that the active tubercular condition as it now existed was directly attributable to the accident. He stated that in his opinion, the petitioner had been discharged from the hospital as improved, but was in need of sanitorium treatment.

4. On behalf of petitioner also testified Dr. Israel Kaufman. He also treated petitioner as attending physician at the Kingston Avenue Hospital, and testified as an expert on tuberculosis. He expressed the opinion that prior to the accident, there was a latent or dormant tubercular infection, with a focus in the right lung, and that the trauma of February 14th, 1936, activated the tubercular condition in the right groin, and from there, through the blood stream, the infection spread and activated the pulmonary tuberculosis, causing the existing tuberculosis and disability. He stated that the petitioner had received artificial pneumothorax treatment at the Kingston Avenue Hospital, and that, in his opinion, the pneumothorax treatment should be continued, and that sanitorium treatment was required.

5. Dr. Joseph Koppel also testified on behalf of petitioner. He testified as to his examination, and in answer to a hypothetical question propounded to him, he stated that, in his opinion, the existing tuberculosis was the result of the accident of February 14th, 1936, by activation of a dormant tubercular condition.

6. On behalf of petitioner, lay witnesses testified as to their observance of the petitioner and the condition of health previo as to February 14th, 1936, and his decline in health thereafter, during 1936 and 1937.

T. On behalf of respondent, Dr. Watrnan testified as the original attending physician immediately following the accident. Fie testified as to his treatment and his reference of tile case to Dr. Greenberger.

8. Dr. Greenberger testified, on behalf of respondent, as to his examination of the petitioner on April 14th, 1936; that he found a tuberculous epididymitis on the right side, and that he operated upon the petitioner on April 28th, 1936, removing the right epididymis and vas deferens. He also testified that lie treated the petitioner after the operation, and discharged him from treatment in the latter part of July, 1936. He stated that when he discharged the petitioner, the petitioner’s condition was the same as it was previous to the accident, and that there was no activation of any underlying or local condition by the accident.

9. On behalf of the respondent, Dr. Pollack also testified as to an examination made by him, and in answer to a hypothetical question, expressed his opinion that the petitioner had an underlying tubercular condition, with the focus In the right lung. Further answering that question, he testified that it was not a case of haematogenous tuberculosis, and that although the trauma to the particular location of the right groin might have activated a tubercular condition, yet, in his opinion, the generalized tubercular condition was not in any way affected by the accident and has progressed of itself, as a primary condition.

I have carefully considered all the testimony before me, and hereby determine and find as follows:

That the petitioner met with an accident on February 14th, 1936, when he was struck in the right groin with a heavy roll of cardboard, and that said accident arose out of and in the course of his employment with respondent; that the respondent had notice of the accident and rendered some medical treatment therefor; that there is a causal connection between that accident and the tubercular condition from which the petitioner is now suffering, and that the said accident was the cause of petitioner’s present condition. It appears that all of the doctors are in agreement that there was existent, before and at the time of the accident, a latent tubercular condition which was not disabling. It is my opinion, and I find as a fact, that the accident activated this dormant, underlying tubercular condition, both locally in the right groin, and generally, so that the tubercular activity spread in different parts of the body, including the left groin and the lung, and is now disabling the petitioner. I further find that the petitioner is still temporarily disabled and in need of medical treatment, as indicated by the medical testimony. A bill for hospital services rendered has been submitted in evidence, in the amount of $1,183. Without expressing an opinion as to the amount involved, I find as a fact that such medical attention rendered by and in the institutions and hospitals was necessary and reasonable, and that the respondent is responsible for such medical attention and all reasonable expenses thereof, and is also responsible for all reasonable expenses for further medical attention that shall be reasonably required. I further find that petitioner has been paid compensation for forty-four and four-sevenths weeks, the last payment of compensation being on February 9th, 1937, and that the compensation rate is $10.67 a week, based upon a weekly wage of $16.

It is, therefore, on this 12th day of April, 1938, ordered, that judgment be entered in favor of the petitioner and against the respondent for temporary disability until such time as the permanent disabilit3>-, if any, can be fixed. I tentatively fix such date as November 1st, 1938, but if permanent disability can be fixed before or after such time, either party may bring the matter on to determine permanent disability. Payments on account of temporary disability shall commence from February 9th, 1937, and be paid to date, and for such period of time as designated above, at the rate of $10.67 per week.

*******

John C. Wegner, Deputy Commissioner.