author: Caeekey, C. C. J.

text:
    Essex County Circuit Court.
    FRANK GRAD & SONS, INC., A CORPORATION, PLAINTIFF, v. CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANT.
    Decided November 21, 1939.
    For the plaintiff, Edward R. McGlynn.

    For the defendant, James F. X. O’Brien (by Raymond Schroeder).

   Caeekey, C. C. J.

This is a suit by the plaintiff against the city of Newark for fees. The facts are set forth in the following memorandum:

On July 15th, 1936, by resolution adopted by the Board of Commissioners of the defendant municipality on that date (No. 5853F) and also by resolution adopted on September 9th, 1936 (No. 6108), the plaintiff was appointed as the architect and engineer to prepare the preliminary plans, preliminary sketches and preliminary studies to accompany the application of the city of Newark (hereinafter designated as city) to the Works Progress Administration (hereinafter referred to as WPA) for the purpose of obtaining a grant from said WPA on four swimming pools and recreation buildings upon city owned real estate and for such services the plaintiff, under said resolutions, was to be paid by the city in the event not being approved by the WPA or not accepted by the city, one (1) per centum of the estimated costs of said proposed project or projects, not to exceed $1,500 for each project. Should said projects, or any part thereof, be approved by the WPA and the city, and the said architects and engineers shall prepare final working drawings, plans, details and specifications, then under said resolutions, the plaintiff was to receive compensation from the city of Newark in accordance with the scheduled rates and rules and regulations of the American Institute of Architects (hereinafter referred to as Architects Institute). If said projects or any part thereof were not approved by the WPA, then as to such part or all of said projects which shall not be approved, the plaintiff was to receive not more than one (1) per centum as above stated, of the estimated cost of said projects not proposed and not to exceed $1,500 for each such project. In the preamble of both these resolutions so adopted by the defendant municipality, there is a recital indicating that in the congested areas of the city of Newark there is dire and urgent need for swimming pools and recreation buildings in connection therewith, which will serve for the betterment of the health and public welfare of the juveniles and citizens generally and that the use thereof will materially aid in the prevention of crime. There is also a further recital that the Works Progress Administration of the United States of America has offered to aid the city of Newark in the construction of such swimming pools and recreation buildings and requires that there accompany the application for such aid, certain preliminary plans, preliminary sketches and other preliminary studies, together with outline specifications and estimates, before said Works Progress Administration will consider the application or make any grant to the city of Newark. Pursuant to said two resolutions, the plaintiff did proceed with the work required to be performed by it.

The scheduled rates, rules and regulations of the American Institute of Architects, as referred to in the resolutions adopted by the defendant, contain, inter alia, the following:

1. The Architect’s professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings; the drafting of forms of proposals and contracts; the issuance of certificates of payment; the keeping of accounts, the general administration of the business and supervision of the work, for which, except as hereinafter mentioned, a proper minimum charge, based upon the total cost of -the work complete, is six per cent.

6. The rate of percentage arising from articles 1 and 2 hereof, i. e., the basic rate, applies when all of the work is let under one contract. Should the owner determine to have certain portions of the work executed under separate contracts, as the architect’s burden of service, expense and responsibility is thereby increased, the rate in connection with such portions of the work is greater (usually by four per cent.) than the basic rate. Should the owner determine to have substantially the entire work executed under separate contracts, then such higher rate applies to the entire work. In any event, however, the basic rate, without increase, applies to contracts for any portions of the work on which the owner reimburses the engineer’s fees to the architect.

9. Whether the work be executed or whether its execution be suspended or abandoned in part or whole, payments to the architect on his fee are subject to the provisions of articles 7 and 8, made as follows:

Upon completion of the preliminary studies, a sum equal to twenty per cent, of the basic rate computed upon a reasonable estimated cost.

Upon completion of specifications and general working drawings (exclusive of details) a sum sufficient to increase payments on the fee to sixty per cent, of the rate or rates of commission agreed upon, as influenced by article 6, computed upon a reasonable cost estimated on such completed specifications and drawings, or if bids have been received, then computed upon the lowest bona fide bid or bids.

During the preparation of the preliminary studies and of the specifications and general working drawings, it is proper that payments on account be made at monthly or other intervals, in proportion to the progress of the architect’s service, and so as to aggregate in each period not more than the sums described above.

Prom time to time during the execution of work and in proportion to the amount of service rendered by the architect, payments are made until the aggregate of all payments made on account of the fee under this article reaches a sum equal to the rate or rates of commission agreed upon as influenced by article 6, computed upon the final cost of the work.

Payments to the architect, other than those on his fee, fall due from time to time as his work is done or as costs are incurred.

No deduction is made from the architect’s fee on account of the use of old materials, penalty, liquidated damages or other sums withheld from payments to contractors.

13-A. The words “the cost of the work,” as used in articles 1 and 9 hereof, are ordinarily to be interpreted as meaning the total of the contract sums incurred for the execution of the work not including architect’s and engineer’s fees or the salary of the clerk of the works, but in certain rare cases, e. g., when labor or material is furnished by the owner below its market cost or when old materials are re-used, the cost of the work is to be interpreted as the cost of all materials and labor necessary to complete the work, as such cost would have been if all materials had been new and if all labor had been fully paid at market prices current when the work was ordered, plus contractor’s profits and expenses.

The projects contemplated under the two resolutions are generally known as

1. Hayes Park West.

2. Hayes Park East.

3. Boylan Street.

4. Clifton and Seventh Avenues.

The plaintiff alleges that part of the work to be performed in connection with the projects described in said resolutions, was under separate contracts and therefore as to some of the work, which was entirely in connection with mechanical equipment to be installed in said pools and buildings connected therewith, that the rate of six per cent. (6%) of the total cost is applicable and that as to the balance of the work, the basic rate of six per cent, plus an additional four per cent, is applicable.

There is no dispute that the plaintiff prepared the preliminary plans, sketches and studies described in said two resolutions and it is also conceded that the defendant delivered same to the Works Progress Administration, with written applications which described in detail the proposed projects and included as completely as could be, an estimated list of the expenses to be incurred in connection with the cost of said projects, which included in each instance and on each one of said four projects, an item for architect’s services and commissions and for the supervision of said work by the plaintiff. The application of the defendant to the WPA-for a grant towárd.the estimated cost of said projects, was accepted 'and approved and the plaintiff, in accordance with the tenor of the foregoing two resolutions adopted by the defendant municipality, prepared final working drawings, plans, details and specifications, all of which were accepted both by the defendant and by the Works' Progress Administration.

The work in connection with each of said four projects was commenced and did continue from the time of said acceptance up to the present time, with the exception of a period when the defendant corporation suspended operations thereon.

Subsequent to the original grant of a contribution of the Works Progress Administration to the four projects mentioned herein, a supplementary or amended application for an additional grant was made (which was only for labor to be performed by the Works Progress Administration) and, said supplemental application was prepared in waiting, by the defendant and said application submitted to the Works Progress Administration and included therein, in addition to all other estimates of the various costs to be incurred in the completion of said projects, was an item in each instance, for architectural services.

Prom time to time during the progress of said work, the plaintiff submitted bills' to the defendant for payment on account of its services rendered up to the date of the rendition of said bills. The bills so rendered by plaintiff were calculated by it in accordance with the rates and charges of the Architects Institute and as in said two resolutions referred to and especially in accordance with paragraphs numbered 1 and 6 {supra) of said schedule.

The original application to the Works Progress Administration for a grant covering said swimming pools shows a federal contribution of $249,465.60 and a contribution by the city of Newark (sponsor) of $364,279.58, making a total of $613,745.18. virtue of the supplemental application to the Works Progress Administration (which application was approved) the federal contribution for these projects has been increased to a total of $625,721.42. The city’s contribution has been increased to $641,661.31, making the present cost of said four projects as being in the sum of $1,267,382.73.

The budget of the city of Newark for the fiscal year 1936 contains no appropriation of moneys for swimming pool projects or for any work in connection therewith. Plowever, on December 9th, 1936, the Board of Commissioners of the city of Newark adopted an ordinance (No. 6496) providing for the issuance of $410,000 general improvement bonds of the city of Newark, in which is included $150,000 to be raised to finance the construction of the four public swimming pools aforesaid. This ordinance (No. 6496) is the initial step taken by the defendant to raise moneys for the purpose of financing these swimming pool projects.

On December 30th, 1936, resolution numbered 6648 was adopted by the Board of Commissioners of the city of Newark, which said resolution makes reference to the July 15th, 1936, ánd September 9th, 1936, resolutions previously adopted by the defendant, including a recital to the effect that the defendant did agree to pay compensation to the plaintiff in accordance with the schedule of rates, rules and regulations of the American Institute of Architects. Said resolution numbered 6648 further recites that the aforesaid projects together with the estimated costs thereof, have been duly approved by the WPA and the city and that the plaintiff prepared and delivered both to the defendant and to the WPA, the completed final working drawings, plans, details and specifications for the four separate swimming pools and recreation buildings above referred to, which final working drawings, plans, details and specifications have been duly approved by the sponsor and the WPA and that actual work has been commenced on each and every one of said swimming pools and recreational buildings and that by reason thereof, the plaintiff has presently become entitled to receive payment as compensation for the preparation of the aforesaid final plans, &c., a snm equal to sixty per cent (60%) of their several fees for the aforesaid respective projects and the balance from time to time, in proportion, during the execution of the work, “as by reference to the rates, rules and regulations of the American Institute of Architects more fully appears.” Said resolutions further recited that the total construction cost is based on the cost estimated in the applications heretofore submitted to the Works Progress Administration upon which a grant from the said Works Progress Administration has been received. This resolution directed the payment to the plaintiff of $2,732.17 for the balance due of the sixty per cent. (60%) of the architectural and engineering fees for the Clifton and Seventh avenues project} the sum of $8,049.27 for the balance due of the sixty per cent. (60%) of the architectural and engineering fees for the Hayes Park East project, the sum of $5,107.48 for the balance due of the sixty per cent. (60%) of the architectural and engineering fees for the Boylan street project and the sum of $4,593.86 being the balance due on sixty per cent. (60%) of the architectural and engineering fees on the Hayes Park West project. These figures are in accordance with section 9 (supra) of the schedule of rates of the American Institute of Architects referred to herein. Following the adoption on December 9th, 1936, by the Board of Commissioners of the city of Newark of ordinance numbered 6496, the first contract to be awarded by said city in connection with said swimming pools, was to cover installation of an electrical system. This award was made on February 24th, 1937. Between the latter date and August 11th, 1937, contracts for mechanical equipment and materials to be used in the construction of said swimming pools were let by the city and totaled $428,992.92.

The plaintiff concededly has performed on its part all work necessary to be performed so as to entitle it to the payment of its fees and charges, as the same may be due. The defendant, however, contends that the compensation of the plaintiff should be computed in accordance with paragraph 13-A (supra) and not in accordance with paragraphs 1, 6 and 9 thereof. The plaintiff contends that paragraph numbered 13-A in no way changes the scope, application, construction or interpretation of paragraphs 1 and 6 set forth above and that obviously paragraph numbered 13-A was intended and does cover situations where labor or material is furnished by the owner, below its market cost or where old materials are re-used, in which event the architect’s commissions are to be calculated on an amount which would represent the cost of the materials and labor necessary to complete the work, as such cost would have been if all materials had been new and all labor had been paid at market prices current when the work was ordered, plus contractor’s profits and expenses. Plaintiff further contends that inasmuch as part of the work which was contemplated to be performed in connection with these projects, if said work actually commenced, was to be awarded under separate contracts and that practically all of such separate contracts were intended and actually did cover mechanical equipment to be installed in said pools and buildings connected therewith, such as filtration equipment, electrical fixtures and heating equipment, that therefore the basic rate of six per cent. (6%) directed in the schedules of said Architects Institute, was increased by adding thereto an additional four per cent (4%) of the cost of said mechanical equipment.

As hereinbefore stated, the plaintiff corporation concededly prepared the preliminary plans, sketches and studies described in the resolutions adopted by the defendant municipality and accompanying the same were written applications prepared and signed by the defendant, delivered to the Works Progress Administration by the defendant, setting forth in detail all of the proposed projects, including not only a statement that the plans and specifications had been prepared by the plaintiff, but a statement indicating that the work was to be done under the supervision of the plaintiff. An item covering the fees of the plaintiff was also included on the printed application form submitted by the sponsor defendant.

The estimated amount in both the original applications and supplementary or additional applications prepared and signed by the defendant for the defendant’s contribution in connection with said projects to cover plaintiff’s fees and commissions, were calculated in accordance with paragraphs numbered 1, 6 and 9 of the rates of the American Institute of Architects quoted above and were' based on the estimated amount of the total cost of said projects, including both the Works Progress Administration grant and the contribution of the defendant. The individual statements or requisitions submitted by the plaintiff were itemized for each project and the amount of each bill was based on the amount spent or contributed by the Works Progress Administration and on the amount contributed by the city of Newark — one item being for six per cent. (6%) services, another item for the four per cent. (4%) additional services in connection with the mechanical equipment. The net amount of each individual' bill, in each instance, would represent’ the amount of money presently due to the plaintiff after crediting any payments previously made to the plaintiff. These bills as submitted wére paid by the defendant.

The defendant contends that the labor furnished on the projects involved in the present suit, was furnished to it free of charge by the Works Progress Administration and that any fee due to the plaintiff should be based on the market price of said labor which would be what a private contractor would charge and not on the cost of Works Progress Administration labor, the defendant claiming that it has no control whatsoever over Works Progress Administration labor. The city further contends that the schedule of the American Institute of Architects (admittedly adopted' in 1908, and revised in 1916, 1921 and 1922) has no application to the claim of the plaintiff for that it does not refer directly or indirectly to Works Progress Administration projects and hence furnished no basis for calculating any commissions for services performed. This latter contention on the part of the city, in my opinion, cannot be given any serious consideration by this court, as a reading of resolution numbered 5853-P (adopted July 15th, 1936); resolution numbered 6108 (adopted September 9th, 1936); resolution numbered 6648 (adopted December 30th, 1936), all make reference to the schedule of rates, rules and regulations of the American Institute of Architects, in my opinion, then in effect, i. e., as of the date of adoption by the defendant of said resolutions. The defendant municipality through its Board of Commissioners, undoubtedly contemplated that the fees and charges of the plaintiff be computed in accordance with said schedule of rates regardless of the date of adoption by Architects Institute of such rates or schedule of fees. Said schedule of rates in its entirety as contemplated by the parties hereto, is annexed to the complaint filed herein and to the affidavits submitted by and in behalf of the plaintiff herein in this cause. Counsel for the defendant admitted that this schedule was the one within the contemplation of the Board of Commissioners of the city at the time of the enactment of the resolutions authorizing said employment.

The defendant further contends that it and the Works Progress Administration, in a dual capacity, are engaged in the construction of the projects referred to and that as such, the defendant is not an “owner” within the purview of such term as used in the Architects Institute schedule and that the grant of the federal government to the city of Newark should not properly be the basis for the payment to the plaintiff of any commissions. This contention, too, is without merit for that the employment of Works Progress Administration labor on these and similar projects tends to decrease the relief burdens of the defendant municipality and these pools and recreation buildings will serve for the betterment of the health and public welfare of the juveniles and citizens generally, of the city of Newark living within the congested areas where said projects have been constructed.

On April 5th, 1939, ordinance numbered 4566 was adopted by the Board of Commissioners of the city of Newark, authorizing and providing the raising of an additional $500,000 for the purpose of financing the cost of construction of said swimming pools. With the adoption of this ordinance, the city has appropriated the total sum of $650,000 to date, to defray the expenses of said construction work. (See ordinance No. 6496 adopted December 9th, 1936, supra.)

The defendant municipality, in its answer, intimates that the contract entered into by the plaintiff with the defendant, pursuant to the resolutions aforementioned, is null, void and illegal “by the statutes in such case made and provided,” in that at the time of the adoption by the defendant of the resolutions numbered 5853-F and 6108, “no appropriation had been provided for in the budget of the defendant covering any liability that might result from said alleged contract” entered into with the plaintiff pursuant to said two resolutions.

The attention of this court has been directed by counsel to R. 8. 40:2-29, the source of this legislation being found in section 301 at page 539 of Pamph. L. 1936. However, a reading of section 507 of chapter 211, of the laws of 1936, at page 552, as to the effective date of this act, indicates that “this act shall take effect immediately as regards all matters, terms and provisions affecting budgets, tax ordinances and tax resolutions for the fiscal year one thousand nine hundred thirty-seven and any subsequent fiscal year and in all other respects, shall take effect on December thirty-first, one thousand nine hundred thirty-six.” This “effective date” is of course omitted in our Revised Statutes of 1937 and can only be ascertained from an examination of page 552 of Pamph. L. 1936.

This court is of the opinion that the projects here under consideration are “capital projects” and that the contract entered into between the plaintiff and the defendant is not an illegal one.

It should be noted that the resolutions authorizing the employment of the plaintiff, were adopted on July 15th, 1936, and September 9th, 1936, respectively; that the ordinance adopted by the city on December 9th, 1936, to raise $150,000 was another step in the construction of these projects and that on December 30th, Í936, a resolution was adopted by the city authorizing the payment to the plaintiff of the several sums therein mentioned. In this posture of the case and under section 507 of Pamph. L. 1936, supra, R. S. 40:2-29 has no application to the case at bar. However, to remove any doubt, the legislature passed an act validating contracts heretofore made by any city for the construction of public swimming pools and providing for the financing of such contracts. This act approved April 28th, 1938, to take effect immediately, is chapter 99 of the laws of 1938, at page 219 (1938 N. J. S. A. 40:2-29 note), and provides that: “All contracts heretofore made on behalf of any city by the board of commissioners of such city council, or other governing body of such city which provide for the doing of any work or the rendering of any services or for the purchase of any materials or supplies necessary for the construction of public swimming pools in said city are hereby ratified, validated and confirmed notwithstanding that said contracts require the expenditure of money in excess of the amount heretofore appropriated for the construction of such swimming pools.

"Notwithstanding anything contained in section 40 :l-59 of the Kevised Statutes, any payments required to be made by said city pursuant to such contracts may be financed from the proceeds of bonds heretofore or hereafter authorized to be issued for the construction of such swimming pools pursuant to and within the limitations prescribed by the local bond law.”

This court is of the opinion that any questions as to the legality of the plaintiff’s agreement for compensation as set forth in the resolutions referred to herein were removed by the passage of said chapter 99 of the laws of 1938, supra.

Therein lies the difference between the case of Frank Grad & Sons, Inc., v. City of Newark, 118 N. J. L. 376; 193 Atl. Rep. 177.

On or about June 21st, 1939, the plaintiff submitted to the defendant, four separate requisitions or bills, one for each project described therein, as follows: Hayes Park West, $3,636.54; Hayes Park East, $5,670.78; Boylan street, $4,140.10; Clifton and Seventh avenues, $4,247.50, making the total sum of $17,694.92 then claimed to be due to the plaintiff as of the date of the rendition of said statements or bills. This indebtedness is based upon the total cost of the work in the order of completion as it was known or estimated to bo, at the time these bills were rendered. The defendant refused to pay the same claiming that the plaintiff was not entitled to any fees for the amount of the cost of said projects represented by the amount of the contributions which had been or which were to be made by the Works Progress Administration toward the total cost of each of said projects, but that the plaintiff was only entitled to the percentages described in the resolutions and architect’s schedules based upon the actual cost of the projects as reflected by the amount which had been paid or was to be paid by the city of Newark as its contribution toward the completion of each of said four projects. This was the first time that this contention was so raised by the defendant municipality.

There is no dispute that the work claimed to have been done by the plaintiff has been performed on its part, from the date of the original resolution recited herein down to and including the date of the rendition of the bills forming the basis of this present claim. As hereinbefore indicated, the question in dispute between the parties is as to whether or not the plaintiff is entitled to be paid on the basis of the total cost (or estimated cost of the said projects) or upon the amount of money paid or to be paid by the city of Newark as its contribution towards said “total post or estimated cost.”

Without prejudice to either side, one-half of the bills rendered as aforesaid has been paid to the plaintiff, leaving due and unpaid at the time said bills, invoices or requisitions were Tendered, for services as described in said bills, invoices or requisitions, without prejudice to any claim on the part of the plaintiff for any extra work, or for compensation because of delays in said work, the total sum of $8,84=7.46 as follows: Hayes Park West, $1,818.27; Hayes Park East, $2,835.39; Boylan street, $2,070.05; Clifton and' Seventh avenues, $2,123.75.

The complaint as presently filed by the plaintiff, is for the said sum of $8,847.46.

The matter first came on to be heard by this court on the plaintiff’s motion td strike the answer filed by the defendant on the ground that the said answer is frivolous and does not set forth a good defense to the cause of action as alleged in the complaint and for the entry of judgment for the plaintiff and against the defendant for the amount claimed in said complaint. On the date set for the argument of said motion to strike the answer as aforesaid, counsel representing the respective parties hereto, did in writing, stipulate that the said motion is considered by both parties as having been modified and changed so that the issues now joined by the complaint and answer filed herein shall be considered by this court in the same way and manner as if the above case had been regularly noticed for trial and reached for trial in the regular manner. Said stipulation further provided that both parties waive trial by jury and that the affidavits filed by the plaintiff and the defendant on the motion to strike the answer shall be considered by the court together with the exhibits attached to such affidavits, as if the same had been produced as evidence at the trial of the case.

1 have been attended by counsel representing the parties hereto and have carefully considered the arguments advanced by each of them.

After due deliberation and careful consideration of all matters, including the pleadings, affidavits, stipulations and arguments of counsel aforesaid, I am of the opinion that the plaintiff is entitled to the payment of the $8,847.46 .as claimed in the complaint filed in this cause, together with lawful interest to be computed from June 21st, 1939, together with costs of suit to be taxed.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDWARD ALBERT HORNECKER, Jr., BY HIS NEXT FRIEND, CLARA HORNECKER, PETITIONER, v. ALBERT BRUNNER & SONS, INC., ALBERT BRUNNER, EUGENE BRUNNER AND TRAVELERS INSURANCE COMPANY, RESPONDENTS.
    Decided November 14, 1939.
    Por the petitioner, Whiting & Moore.

    Por the respondent, James J. Slcefington.

   }J ******

Petitioner alleges that he is twenty-one years of age, and that on or about August 3d, 1938, he was employed by Albert Brunner & Sons, Union, New Jersey, wholesale florists, doing all kinds of heavy work, earning $20 per week; that during July he wheeled dirt, loaded flower benches, sifting dirt and potting, weeding and cultivating; on August 3d, 1938, he reported to work feeling as good as usual, at seven a. m., which was his regular time to start work every day in the year, and started in by leveling off, hauling rubbish, bricks and ashes to the dump four hundred feet down the field in a regular steel wheelbarrow, and worked at that until about nine-forty-five A. m., at which time he was called to help Mr. Jacob Hummel, an employe of respondent, in raising curtains on the field beds. The work involved reaching down and unhooking the hooks along the bottom of the frame, rolling the canvas back and tying it. He admitted that they were heavy, about one hundred feet long, made of umbrella cloth, and he was sweating quite a bit after wheeling and doing the job, and testified “it happened while I was lifting a curtain I dropped,” and again, “I reached down to grab one of the hooks and as I did, it just stuck and I fell over.” He testified that it was one of the hottest days of the season, “an extra hot day,” but did not know the temperature. He further stated the next thing he remembers was after the first operation in Neurological Institute, New York City, on August 7th, 1938, remaining there to sometime in September, 1938, and then was taken home, where he stayed for a little over two months. On November 14th, 1938, he returned to work for the respondent, tending and stoking boilers from December, 1938, up to two weeks before Easter and his hours were seven p. M. to six a. m., the following morning, and did not fall unconscious at any time during that period. He worked for the respondent until June, 1939, at which time he left because he felt “kind of dizzy when it got hot.” In June, 1939, he was employed by a Mr. Britten, Short Hills, New Jersey, as a private gardener, doing lighter work, and is employed there to the present time. Petitioner was asked specifically if he told Mr. Jacob Hummel that he was feeling faint, he answered, “no, sir.” He further denied that Mr. Hummel offered him his hat, and further denied that he walked from the place where he was unhooking the curtains to a shed to lay down, but that the last thing he remembers was that he was unfastening or unhooking the curtains and fell over unconscious. He further denied that he had a loss of appetite and felt uneasy for a few days prior to August 3d, 1938, but admitted that he seldom had headaches. He admitted that he was at Sea Girt, the National Guard Camp of New Jersey, for two weeks sometime in July, 1938, and that his duties required him to be out in the sun from six a. m. to five p. m., weather permitting, doing all kinds of work. He further admitted that to-day he feels as good as he did before August 3d, 1938, that to-day he engages in all sports, including “baseball, football, horseback riding, high diving and swimming,” and performs them as well as he did before the alleged accident. The petitioner further admitted that at no time did he request medical treatment from his employer and that his medical bills were paid by his father and mother. .

Dr. Theodore E. Ford took the stand on behalf of the petitioner and qualified as a neurologist. He testified that he first examined the petitioner in the ward of the Orange Memorial Hospital, August 4th, 1938. His examination at that time showed dilated pupils; double vision; upper abdominal reflexes diminished; right knee jerk greater than the left; right ankle jerk greater than the left; equivocal right Babinski; on posture holding function there was a down drift of right arm, and succession movements were slightly impaired on thé right; neck was slightly stiff; blood pressure 106/58 and pulse sixty to seventy-two; petitioner had difficulty in expressing himself; and diagnosed his condition as a subdural hemorrhage, on the left side, near the motor speech area. The doctor further testified that he was given symptomatic treatment only and transferred to the Neurological Institute for further diagnostic procedure and treatment on the doctor’s own advice. The doctor stated that from the facts contained in a hypothetical question, he was of the opinión that the petitioner’s employment caused the subdural hematoma and acute illness. The doctor admitted that the petitioner had an abnormal blood vessel, an anastomosis between the arteries and veins in the sylvian fissure which is a congenital condition. He stated that the petitioner may have suffered from heat stroke or heat exhaustion. The doctor admitted that the petitioner was not completely unconscious on August .4th, but was confused. The doctor further admitted that a spinal tap was performed on August 4th, 1938, and six c. c. of xanthrochromic fluid was withdrawn indicating a possibility of a hemorrhage in the brain. He further stated that it takes a variable length of time for this xanthrochromic fluid to appear, depending on circumstances, but felt that this hemorrhage didn’t occur prior to the collapse of the petitioner on August 3d, 1938. The doctor admitted that an individual could have a small hemorrhage in subdural area and be unaware of it. He stated that normal temperature of the body is ninety-eight and six-tenths degrees and that since the hospital temperature chart starts at ninety-nine and two-tenths degrees, is not necessarily abnormal but could happen in normal individuals. He further stated that the blood pressure of one hundred and six over fifty-eight shown on the hospital chart was normal. The doctor further testified that the last time he saw the petitioner was at the Orange Memorial Hospital, August 4-th, 1938.

Dr. Fritz Cramer was then called as a witness by the petitioner and qualified as an attending neurological surgeon at the Neurological Institute, New York, New York, specializing in nervous system, brain, spinal cord and nerves. He first examined the petitioner on August 8th, 1938, at which time the petitioner complained of a headache and stiff neck. The essential findings were as follows: Petitioner was not abnormally groggy; he had a slight weakness of the right arm; grip was weak; had some ataxia in the use of both arms and legs, greater on the right side, apparently due to weakness; he had a slight hyperreflexia on the right side with an absence of the abdominal reflexes on the right side and an absence of the plantar flexion on the right side and a positive Babinski sign and Chad dock on the right; his optic fundi was normal; the right pupil was greater than the left; he had a central type of facial weakness on the right. He stated that his diagnosis was a spontaneous sub-arachnoid and subpial hemorrhage, probably on the basis of a rupture of an abnormal group of capillary or large blood vessels in the left cerebrum. An X-ray of skull showed it to be normal except for anterior displacement of the pineal glands. He further stated that the treatment consisted of rest and an exploratory trephining exploration in the left temporal region and it was after that that he saw the petitioner. After this operation the abnormal signs persisted and an encephalogram was performed which showed the displacement of the lateral and third ventricles toward the right side. On the basis of the persistence of the neurological findings and the interpretation of there being a tumor, an osteoplastic craniotomy was performed, which disclosed an abnormal vascular condition of the skull and of the dura, and on opening the dura the underlying cerebral cortex was abnormal in several respects. After this operation, the petitioner made steady improvement, and was discharged from the hospital on September 10th, 1938. He further stated that he last examined the petitioner on December 14th, 1938, at which time he advised the petitioner not to tend the furnaces in the greenhouse. The doctor was of the opinion that the petitioner’s employment caused the acute illness of the petitioner, and further, that the circumstances surrounding his employment operating on the petitioner’s pre-existing condition precipitated the acute illness. The doctor admitted that the scar due to the operation will be visible during his lifetime, but will become a fine line eventually. The doctor further admitted that six c. c. of xanthrochromic fluid obtained about one day after the collapse was not unusual in brain hemorrhages. The doctor was confronted with his report dated October 6th, 1938, wherein he stated that he “cannot say whether the injury was the .competent producing cause,” and he admitted that he signed said report but that was before he spoke to the petitioner and his family concerning the alleged accident. The doctor further admitted that an individual may have a slight brain hemorrhage without being aware of it though he may have such symptoms as malaise and anorexia. The doctor stated that the petitioner made a very good recovery.

Clara Hornecker then took the stand on behalf of the petitioner, and testified that she is the mother of the petitioner. She stated that on August 3d, 1938, the petitioner was brought home about ten a. at. by Albert Brunner and that she first noticed him on the floor of the ear, and that he was carried into the house and put to bed. She further stated that she tried to talk to him but he wouldn’t answer and after attempting to get several doctors, she called the Orange Memorial Hospital where the petitioner was taken. She testified that he was taken to the Neurological Institute, New York, where he remained for five weeks, at the end of which time he returned home and rested for several months. Mrs. Hornecker further stated that the petitioner did not complain of headaches prior to August 3d, 1938, and she admitted that he may have had headaches which she may not have known. She also stated that he fractured his shoulder in 1936. She admitted that she paid the bills of the Neurological Institute, Ambulance Company and Orange Memorial Hospital and, further, that these bills were forwarded to the insurance carrier of the respondent.

Mrs. Charles T. Hornecker then took the stand on behalf of the petitioner and testified that she is his aunt by marriage and that the petitioner assisted her husband in his floral shop in December of 1937 for about twelve days, and the following Easter, three or four days, and that on these occasions petitioner’s work was satisfactory. She further testified that the petitioner’s mother brought the medical bills to her and that she forwarded them to Mr. Brunner.

The petitioner put into evidence over objection of the respondent the record of United States Bureau of Agriculture showing the average temperature, wind velocity and humidity for Elizabeth and Plainfield, New Jersey, as of August 3d, 1938, as well as a report of Mr. William Wiener, meteorologist, dated December 16th, 1938.

The respondent called as its first witness Mr. Jacob Hummel, who testified that he resides at 71 Bose street, Union, New Jersey, and on August 3d, 1938, was employed by the respondent. He further testified that on said date he was working with the petitioner removing cloths on the outside of flower frames and that the day was hot. They were working about twenty minutes sliding these cloths when the petitioner complained of severe pain in his head and grabbed for his head with both hands. Mr. Hummel stated that he threw the petitioner his hat but the petitioner wouldn’t wear it and they worked for another five minutes finishing that job and together they walked into a shed where the petitioner lay down on a bench. He further stated that when he spoke to the petitioner, he received no response and then called Mr. Brunner. The petitioner walked to Mr. Brunner’s car, but appeared dazed and didn’t talk. He stated that before petitioner collapsed, petitioner told him that he was at an ice cream parlor the night before and that it was so cold it gave him “goose pimples.”

Mr. William Wiener then took the stand on behalf of the respondent and qualified as meteorologist. He testified that on August 3d, 1938, the temperature at seven A. M. was sixty- . eight degrees, eight a. eme. seventy-one degrees, nine a. eme. seventy-four degrees, ten A. me. seventy-seven degrees and eleven A. me. eighty degrees; that there was no precipitation, the day was clear and that humidity at noon was seventy degrees and in his opinion, it was not the type of day to cause heat exhaustion, heat stroke or heat prostration.

Dr. Carl A. Peterson then took the stand on behalf of the . respondent and qualified as a neurologist. He testified that he examined the petitioner at his office on October 21st, 1938, at which time the petitioner stated “I feel as good as ever excepting that I do not feel as strong.5’ The neurological examination revealed pulse, eighty; temperature, ninety-seven and four-tenths; blood pressure, one hundred and twenty over seventy-six; there were areas of alopecia of the scalp over each temporal region; there were two scars in the left temporal region; the one scar is linear and extends upwards, there being no defect in the underlying temporal fascia or muscle, and no abnormal pulsation; the second scar is “H” shaped with its convexity upwards, being eleven and one-half inches long; there were no visible cranial defects and the function of the cranial flap and skull was not palpable; deep reflexes of the right upper extremity' and the right lower extremity were slightly greater than those on the left side; plantar responses were normal; there were no Hoffman, Babinski, or Oppenheim; there was no swaying in Romberg and no ataxia. The doctor further testified that it is significant that petitioner complained of malaise and anorexia for four days immediately preceding his admission to the Orange Memorial Hospital, in that they may be symptoms of a brain hemorrhage. He further stated it is significant that the record at Orange Memorial Hospital discloses that six c. c. of xanthrochromic fluid was withdrawn one day after his admission to the hospital, indicating that there was a slow leakage of blood into the cerebro spinal spaces starting at least three or four days before his collapse. It takes at least three days for the red blood cells to break up liberating .the hemoglobin which in turn is converted into a yellowish hemasiderin, causing the spinal fluid to be xanthrochromic. The doctor further stated that the petitioner had a congenital and pre-existing abnormal condition of the cerebral arteries and veins which was revealed by operation at the Neurological Institute. This abnormal condition expressed itself in episodes of headache, malaise and anorexia on a number of occasions. The doctor further testified that an individual may suffer with a slight hemorrhage in the brain and work about four days with no apparent discomfort except such symptoms as malaise and anorexia. He further stated that he examined the records of the Orange Memorial Hospital, Neurological Institute, the hourly temperature, humidity and wind velocity of the meteorologist’s report, and that the petitioner’s activities and the conditions under which he worked on August 3d, 1938, excludes the presence of sun stroke, heat stroke or heat exhaustion, but that his acute illness was primarily caused by the congenital and pre-existing abnormal condition of the cerebral arteries and veins.

After carefully considering the testimony adduced before me, it is apparent that the petitioner had a congenital and pre-existing abnormal condition of the cerebral arteries and veins which was in nowise aggravated nor accelerated by the petitioner’s work and the conditions under which he worked on August 3d, 1938, for the respondent Albert Brunner & Sons, Inc. I am satisfied that the petitioner in this instance failed to sustain the burden of proving that he suffered an injury as the result of an accident arising out of and in the course of his employment.

It is accordingly this 14th day of November, 1939, ordered that the petition be and the same is hereby dismissed.

John C. Wegner,

Deputy Commissioner.


author: Brown, C. C. J.

text:
    Hudson County Circuit Court.
    MARTHA VELTHUYSEN, PLAINTIFF, v. HOBOKEN LAND AND IMPROVEMENT COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    Decided December 9, 1939.
    For the plaintiff, Matthew W. Begovich (Nicholas 8. Schloeder, of counsel).
    For the defendant, Autenrieth & Wortendylce.

   Brown, C. C. J.

The defendant in the aboye entitled cause alleges as a ground for striking the complaint that it does not state-a cause of action. The motion is directed to an amended complaint. The complaint charges that the defendant was the owner of premises in Garden street in the city of Hoboken and that on the 2d day of July, .1937, the plaintiff’s daughters leased the premises from the defendant; that prior to the signing of the lease the plaintiff’s daughters made known to the defendant that their mother, an elderly woman, who is the plaintiff in this cause, was to occupy the premises with them and inquired of the defendant as to whether or not the premises about to be leased were in a safe condition and free from any defects which would render them dangerous for use as a dwelling house. It is further charged that the defendant for the purpose of inducing the daughters of the plaintiff to enter into the lease and “with the intent that the said lessee should believe such statements were made on the defendant’s personal knowledge and to influence them thereby and for the purpose of inducing the lessees to act in reliance thereon stated to the said lessees, as of his own knowledge, that the premises about to be leased were in a safe condition and free from defects which would render them injurious or dangerous to the life, health or safety of the lessees or members of their household or invitees.” It is further charged that these statements were false and that the defendant concealed from the lessees the existence of a dangerous condition existing in the cellar of the premises. In the absence of a continuing nuisance or an express contract the law imposes the duty of repairing the premises upon the tenant. Naumberg v. Young, 44 N. J. L. 331. The breach by a landlord of a contract, made with his tenant, to repair such parts of the demised premises as were in a defective condition does not make the landlord liable for injuries received by a member of the tenant’s household and resulting from any of such defective conditions; for one who is not a party to a contract cannot sue in respect to a breach of duty arising out of it, unless the contract was made for his benefit. There is privity of estate and of contract between the landlord and his tenant arising from the letting, but there is neither privity of estate nor privity of contract between the owner of premises and the persons whom the tenant may choose to make members of his family in any capacity. Such persons dwell in the premises demised neither by license nor by invitation of the owner. "Where there is neither privity of estate nor privity of contract, the owner of premises is not liable for injuries sustained by third persons by reason of the condition of the premises, unless by invitation, express or,implied, the owner induces them to come upon the premises. Clyne v. Helmes, 61 Id. 358; 39 Atl. Rep. 767; Eberle v. Productive Building and Loan Association, 119 N. J. L. 393; 196 Atl. Rep. 666. While the theory of the case upon which Eberle v. Productive Building and Loan Association, supra, was tried was that of negligence charged in failing to examine and repair the premises, it did not appear in that case that the owner expressly or impliedly induced the plaintiff to come upon the premises. If the complaint in this cause is to be sustained it can only be upon the grounds of deceit, fraud or misrepresentation and in such an action no matter who the parties may be, whether the lessees or the plaintiff, there are three necessary allegations that must be pleaded and sustained by the proof before liability can be established, that is to say, it must be alleged and proved that the defendant made a representation to the plaintiff either directly or indirectly with intention that the plaintiff should act thereon; that the representation was false; that the defendant when he made it knew it to be false and that the plaintiff believing the representation to be true acted on it to her injury. Lembeck v. Gerken, 86 N. J. L. 111. If a suit was brought by the lessees against the defendant on the ground of misrepresentation, fraud or deceit the decisions are clear in holding that it would be necessary to plead and prove the above mentioned essentials. If these requirements are necessary where they concern a party to the lease it follows that one who is not a party to the lease should not be excused from fulfilling those requirements. It nowhere appears in the complaint that the representations were made to the plaintiff by the defendant either directly or indirectly. While it may be said that the representations were made by the defendant owner to the lessees it nowhere appears that the lessees communicated those representations to the plaintiff. It does not appear anywhere in the complaint that the plaintiff had knowledge of the alleged fraudulent statements or representations and that the plaintiff relied upon such statements as being true. The plaintiff contends that the case of Langridge v. Levy, 2 M. & W. 519, supports as a cause of action the statements contained in the complaint. The facts in the Langridge case were not the same as in the instant case. The declaration in the Langridge case stated that the father of the plaintiff at the request of the defendant bargained with him to buy a gun for the use of' the father and the son and that the defendant falsely warranted the gun to be of a certain make and to be good, safe and secure and then sold the gun for the use of the father and the son, when in truth and in fact the defendant was guilty of a breach of duty in that the gun was not of the make represented nor safe and secure for use. It is further charged in the Langridge case that “the plaintiff in fact says, that he knowing and confiding in the said warranty did use and employ the said gun, but which for said warranty he would not have done.” It should also be noted in this case the representations and warranty were expressly made for the benefit of the son as well as the father. The decision in the Langridge case concludes with this statement, “we decide that he is responsible in this case for the consequences of his fraud whilst the instrument was in the possession of a person to whom his representation was either directly or indirectly communicated and for whose use he knew it was purchased.” The amended complaint under consideration does not disclose that the subject of the lease was made for the benefit of the plaintiff. It does not disclose that the representations alleged to be false were communicated either directly or indirectly to the plaintiff. It may be contended in the instant ease that the premises were rented for the use of the plaintiff as well as her daughters. Be that as it may from all that appears in the complaint the plaintiff never knew whether the representations were made; whether they were true or false and that the plaintiff did not act upon the representations. The judgment of the court is that the amended complaint in the above entitled cause does not state a cause of action and the motion to strike is granted.


author: Giobdano, C. P. J.

text:
    Monmouth County Court of Common Pleas.
    HARRY COLE, APPELLANT, v. BOROUGH OF KEANSBURG, APPELLEE.
    Decided November 27, 1939.
    Por the petitioner-appellant, Quinn, Parsons Doremus {Theodore J. Labrecque and Theodore D. Parsons, of counsel).
    Por the respondent-appellee, Coult, Satz, Tomlinson & Morse {Edward E. Kuebler, of.counsel).
   Giobdano, C. P. J.

This is an appeal from the judgment of the Workmen’s Compensation Bureau denying the appellant, Harry Cole, compensation. The question to be answered is whether or not the injuries sustained by the appellant arose out of and in the course of his employment with the borough of Keansburg, the appellee. It is undisputed that the appellant has been employed some time prior to April 8th, 1932, by the borough of Keansburg in the street department. It is also undisputed that one Ralph Williams was borough superintendent. The evidence further discloses that some time subsequent to the date of appellant’s employment he was transferred to the sewer department of said borough as helper upon a truck operated by one Milo Schumacher for said borough.

The appellant, Harry Cole, and Milo Schumacher were subordinant to and under the direct supervision and control of the Ralph Williams, borough superintendent. The duties for which Schumacher and Cole were engaged were of a routine and specified nature. The daily routine of the appellant’s employment was upon arriving at work in the morning to proceed to the sewage disposal plant in the borough of Keansburg and there load a truck with cans containing sediment. These cans were to be taken to either one of two farms in the vicinity where the sludge was to be dumped. After the sludge had been disposed of, the empty cans were to be returned to the sewage disposal plant and the appellant and Schumacher would go out along the sewer line and clean it out.

On the day in question, namely, April 8th, 1932, the proofs show that the trucks were loaded with cans containing waste material; it was driven to the farm of one Steve McMahon in East Keansburg, which was one of the farms in the vicinity where the sludge was to be dumped. The sludge was dumped on the McMahon farm but instead of plaeing.the empty cans back on the truck and following the daily routine, a load of sod belonging to McMahon was placed on the truck for transportation to the cemetery plot owned by McMahon. There is no proof before me that Williams or any one else in authority gave special instructions on the day in question to deviate from the daily routine laid down.

Cole contends strenuously that he did not know why the sod was loaded upon the truck, although he assisted in so doing. This he could have and should have refused to do because he had no instructions to do otherwise than he had heretofore been instructed by his immediate superior, the borough superintendent, to whom he was responsible. He was engaged as a helper on the truck to do certain specific work, and that was to load the truck in the morning with sediment and dump said sediment on either McMahon’s farm or the other one as per arrangement and return with the empty cans and finish out his day of labor cleaning sewer lines. The evidence is barren of any special or further instructions left at the plant. The accident occurred on April 8th, 1932, while the truck was returning from the cemetery where the sod had been dumped. The appellant interposes the defense that at the time of the placing of the sod and until he had reached about one-half mile from the McMahon farm lie was not cognizant of their mission and that it was at this point that he was first informed of the fact that the mission in which he was then engaged was not in the performance of the duties of his employment. This may be true, but after receiving this information, the fact remains that he continued to engage in the unloading of the truck and depositing of the sod at the cemetery, and, therefore, became a party to the acts then being performed, and which, from the evidence, is quite clear were outside the scope of appellant’s employment. There is no evidence before me that petitioner protested, but instead the evidence clearly shows that he actively undertook to engage in this mission with full knowledge of the facts. The proofs are barren that the respondent had given permission to petitioner or to the driver of the truck, Schumacher, to use the truck for any other purpose but for the furtherance of the employer’s business, nor' is there any evidence before me that the respondent borough of Keansburg at anytime ever had knowledge that the truck was used for any purpose other than the borough’s business, or that it had ever been so used.

If the accident to Cole resulted from his doing something specifically connected with his employment it would certainly arise out of the employment, but the evidence does not so disclose. Steers, Inc., v. Dunnewald, 85 N. J. L. 449; 89 Atl. Rep. 1007; affirmed, 89 N. J. L. 601; 99 Atl. Rep. 345 : “An accident arises in the course of employment if the employe is doing what a man so employed may reasonably do within the time during which he is employed and at a place where he may reasonably be during that time.”

The facts in this case very clearly indicate otherwise.

The appellant relies upon the ease of Soden v. Public Transportation Co., 4 N. J. Mis. R. 817; 134 Atl. Rep. 560, and affirmed by the Court of Errors and Appeals in 103 N. J. L. 713; 137 Atl. Rep. 437. This case is not analogous to the situation presented here.

The evidence does not substantiate the contention of the appellant that Schumacher was Cole’s immediate superior. The mere fact that Schumacher happened to be the driver of the truck and that Cole was a helper on the truck did not give Schumacher the power or the authority which the appellant endeavors to spell out of the proofs. Both Schumacher and Cole were placed on the truck with equal authority, one to drive the truck and the other as a helper. Both were to load the cans of sediment and both were to dump them and return and do the identical work after this partiular phase of their duties were completed, and that was to clean out sewer lines. There is no evidence that Schumacher was superior in authority to Cole. Williams was clothed with this authority by the borough of Keansburg, and was so designated by the title which he had. Cans full of sediment could not be loaded and unloaded single-handed to begin with and someone had to drive the truck, and it so happened that Schumacher was the one, but that circumstance alone, without any evidence to substantiate anything to the contrary, is not indicative that anyone was superior in position than Williams.

It is my opinion and I do so determine that at the time of the accident the appellant, Henry Cole, was not engaged in the performance of a duty for his employer, nor was he engaged in the performance of any duty that was in any way related to his employment. He had for the time being abandoned his employment and was about his own affairs. The appellant was under no obligation to participate in the unloading of the sod after he had knowledge of the fact that it was being performed for the accommodation of McMahon at the borough’s expense, on the borough’s time. The appellant was disobeying the specific instructions given to him by his superior, Borough Superintendent Williams, and accordingly appellant deviated from the business which he was hired and directed to pursue. Because of these circumstances I must of necessity find that the relationship of master and servant terminated at the time of the accident; that the accident did not arise in the course of, nor out of the appellee’s employment.

The appeal is dismissed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THEODORE De GROOT, PETITIONER, v. HENRY BECKER & SONS, INC., RESPONDENT.
    Decided December 28, 1938.
    Editor’s Note — See same case on appeal, 17 N. J. Mis. R. 387.
    For the petitioner, Nathan A. Whitfield.

    For the respondent, George E. Meredith.

   I have given careful consideration to the evidence presented in this matter and have spent a great deal of time in the study of the case which I consider one of serious import. The trial was continued over a long period of time, because of the volume of important evidence presented.

The case has proved a most difficult one to decide. The situation, as I see it, is entirely a question of fact. I have heard the evidence and the opinion of the doctors. Some of the doctors recognized the relationship between this disability and the accident; other doctors gave an entirely different view. So in reaching a decision I must consider not only the medical evidence, but also all the facts involved, and from those facts reach my deduction.

Now; in considering the facts in this case, I have taken into account the petitioner’s past, and I have considered also the testimony relating to this accident. Frankly, I am not impressed with the contention that the petitioner was not in normal health before the accident, or with his nearsightedness, which is not an uncommon ailment, an abnormal condition. He came from Holland in 1930, and took this job as a milkman, which is in my opinion a position entailing hard manual labor, inasmuch as it necessitates chiefly night work with considerable lifting to be done. And I cannot help but be impressed with, the fact that he scarcely lost a day from work; and I am not impressed with the fact that occasionally he had a cold or a headache or an attack of indigestion. I consider those things are part of a normal life. I feel that np to the time of this accident, he led what might be considered a normal life, and that his health, if anything, was slightly above the average.

Now, as to this accident: As indicated by the evidence, this petitioner while in a milk truck, the type which has a door on each side and which is familiar to all of ns, is abont to get ont of the truck just as it is struck by an automobile. From the evidence of the occupants of the car, I feel that the collision must have been severe, inasmuch as they testified they were all dazed, and that bottles of milk were knocked from the wagon and scattered in all directions. Then we have the evidence of the petitioner, who testified that he was struck on the head by a milk case; that he was injured in the hand; that he was injured on the heel, and that he was rendered unconscious. Whether or not the petitioner was struck on the head and rendered unconscious is the crux of this case. By his evidence as presented, and the corroborating testimony of the occupants of the car, I believe that he sustained a head injury. I cannot imagine that a man standing up in a milk wagon and being struck by an oncoming car would receive no greater injury than cuts on the heel and hand. There is no doubt in my mind that he was rendered unconscious.

Of course, there is evidence that there was no report of head injury in the hospital, and that for a period of time the man attended the clinic where he was treated only for injury to his heel. However, there was a report of head injury at the police station where he was taken prior to going to the hospital.

He testified that for the first two or three days following the accident, he had severe headaches which temporarily subsided. This testimony is significant from the point of view of the petitioner’s credibility, for if he had not testified honestly, he could have said that the headaches continued uninterruptedly from the time of the accident, in an attempt to strengthen his case. However, he did say that the headaches subsided temporarily but came on again; and by December, it appears that he was suffering seriously from headaches. We have the testimony to this effect of Dr. Phelps; we have the testimony of his wife that around Christmas time he did not appear to be himself. In February, his condition was such that he was unable to work, and he was dizzy, he staggered and his vision was affected. At that time he went under the- care of physicians who were unable to agree upon any diagnosis. The following year he was operated upon by Dr. Masson, who ascertained the true cause of his disability, namely a tumor on the brain.

I am not impressed with the testimony that this accident caused the tumor, but the issue is whether this accident aggravated that condition. After a great deal of thought, I have come to' the conclusion that the petitioner has sustained the burden of proving that this accident did aggravate the tumor and caused the petitioner to be in the condition in which he is now, namely totally disabled.

I am somewhat impressed by the report of the operation wherein it says that the tumor was vascular; and although some doctors tried to bring out that this tumor was immovable and calcified, I am not convinced of that fact. Of course, eighteen months had passed since this original condition. Ho doubt there was some calcification, and yet the tumor seemed to be active.

I have to accept the facts as presented to me and the picture I have before me is a man, who from the evidence, was in normal health before this accident. And then within a short time all these symptoms developed seriously. They were not slow growing symptoms, but came on within a few months.

After considering all the facts, I have decided that the petitioner’s disability is -now the result of this accident which arose out of and in the course of his employment, and I therefore find judgment in favor of the petitioner.

*******

Chakbes E. Cobbin,

Deputy Commissioner.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    THEODORE De GROOT, PETITIONER-APPELLEE, v. HENRY BECKER & SONS, INC., RESPONDENT-APPELLANT.
    Decided June 2, 1939.
    Editor’s Note — See opinion of Workmen’s Compensation Bureau, 17 N. J. Mis. R. 384.
    Eor the petitioner-appellee, Nathan A. Whitfield.

    Eor the respondent-appellant, Kellogg & Ohance.

   Hartshorne, C. P. J.

This is a fact case. Furthermore, the fact is a medical one, and one where the medical experts differ as to the basic medical theory — whether or not a brain tumor was or can be aggravated by trauma.

Petitioner was a driver for respondent milk company, and while on his route, was hit October 6th, 1935, as he was getting off his wagon, by a third party’s automobile. To this all agree. All further agree that at that time, though unknown to anyone, petitioner had at least an incipient brain tumor. But as to whether this shock did or could have aggravated this incipient unknown tumor are the crucial points at issue.

As to the former, there is evidence that petitioner was dazed or unconscious for a while after the accident, that bystanders saw him holding his head after the accident, that he told his own doctor three days later that his head had been hit, and that he suffered pain and headaches from the time of the accident, through intermediate treatment, to the operation for the tumor, February 8th, 1937. On the other hand, he was able to go to get his horse after the accident, and the hospital record shows no complaint or treatment of his head. On this point the weight of evidence would indicate that there was a blow to petitioner’s head, but not of such severity, or with such a sharp instrument, as to require treatment, when compared with his other injuries.

We now turn to the second point, i. e., whether this blow did, in fact, aggravate the then existing, but unknown, tumor. Here we have a definite split. of medical theory, each side supported by a series of medical experts of admitted ability. It might be added that due to petitioner’s comparative good health previous to the accident, and his almost continuous headaches thereafter, respondent undertook to have him diagnosed and cared for by Dr. Dowd, who is well known in this state. And it was not till after the operation, which occurred much later, and showed a partially calcified tumor, that respondent itself, or its physicians, ■ seems to have had much question as to the connection of the accident with petitioner’s suffering in his head.

This question, then raised for the first time, was based (1) upon the fact assumption, now found false, that there was no blow to the head, (2) upon the medical assumption that trauma cannot affect a brain tumor at all, and (3) that the operation a year and a half after the accident indicated that there had been no blow to the head. Of course, theories 2 and 3, supra, seem inconsistent, because if trauma could not affect a tumor, the tumor doubtless would not show the trauma. So the very fact that respondent’s physicians rely upon what the operation showed, makes somewhat questionable their own theory that trauma can never affect a brain tumor.

As to their further theory, that the tumor, as found by the operation, showed that there had been no trauma, they base the fact that it had not been dislodged from a position which it had evidently occupied for some years, and that there was no break visible in the blood vessels in the part not calcified.

Bearing in mind, however, that a concussion of the brain may run practically the entire gamut of degrees of force, it would seem clear that the blow might have been such as to cause a concussion without dislodging the tumor, or without breaking the blood vessels themselves. Furthermore, there is much medical evidence to the effect that nature’s curative effects would, in the course of a year or more (which have intervened between the accident and the operation), have eliminated the traces of hemorrhage. This also is quite regardless of the fact that the tabs taken from the tumor were so limited that they might well not have shown vestiges of hemorrhage which did exist elsewhere in the tumor.

In other words, the medical theory relied on by respondent’s physicians, appears based either (a) upon an assumption false in fact, or (b) upon one which they themselves question, or (c) based upon insufficient evidence.

As opposed to respondent’s theory, we have, as before stated, the medical judgment of a series of outstanding men, based upon the fact that there was a blow to the head, and upon the further fact of a continuance of head symptoms for a year and a half, from the time of the accident till the time of the operation. Upon this basis these experts all conclude both that trauma can affect a brain tumor, and that the trauma in this ease did affect and aggravate this particular tumor.

Under all the circumstances, the evidence, both lay and medical, would seem to support the petitioner, and the award in his favor, made by the Compensation Bureau, will accordingly be affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HELEN MUROWISKY, PETITIONER, v. PYRENE MANUFACTURING CO., RESPONDENT.
    Decided December 5, 1939.
    For the petitioner, David Boshein.

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

   ífc íJí H* ❖ ❖ if:

The facts developed by the evidence are essentially as follows:

That on May 5th, 1938, and for some time prior thereto, the petitioner was employed by the respondent in an occupation which required the frequent use of solder fluxes and various acids and chemicals incidental to the soldering process. On that day the petitioner testified that while in the performance of her work she sustained an acid burn to her right eye. The testimony indicates that the petitioner was working under the most unusual circumstances; that it was not uncommon for the girls to sustain burns of their clothing, their faces and their limbs. In fact, the employer maintained and provided a chemical substance to neutralize the effects of said acid or flux when it came in physical contact with the said employes. It was furthermore not uncommon for such injuries to take place. Following the occurrence in issue, the petitioner sought and received medical attention from the nurse in charge of the respondent’s plant. From the evidence adduced, I am satisfied and so find that the petitioner suffered a compensable industrial accident, which accident arose out of and in the course of her employment with the respondent. The respondent had due knowledge and notice thereof. Following the occurrence, the vision of the eye was blurred, the eye became inflamed and she suffered a considerable amount of pain and discomfort therein. She thereafter received medical attention at the Newark Eye and Bar Infirmary and the records of said institution, admitted into evidence, indicate that a diagnosis of an acid burn of the cornea of the right eye and conjunctivities was made. She was thereupon referred to Dr. Elbert Sherman for treatment of the injured eye, which treatment was rendered for a short period of time. Nevertheless, the condition of her eye became more acute and painfully worse. No further medical aid being furnished her by the respondent, and finding herself in dire need of medical care and treatment, she sought the same from a doctor of her own choosing.

The respondent having denied liability for the injury, and having refused to furnish any further medical treatment, an application to this court was made for same and Dr. Benjamin Adelman was thereupon authorized by this department to treat the petitioner.

I find and determine that the medical treatment furnished by Dr. Adelman was necessary and that the respondent is liable for the cost thereof. Accordingly, the respondent is directed to pay the bill of Dr. Adelman in the amount of $2SO, which I find to be a reasonable charge for the services rendered by him.

The respondent herein denied legal liability for the injuries sustained by the petitioner and contended that she was suffering not from the effects of the said acid burns to her eye, but from a disease known as trachoma. This diagnosis was made by Dr. Sherman, a medical expert produced by the respondent. Dr. Sherman also had occasion to treat the petitioner during the acute stages of her illness. It appears without dispute, that trachoma is a rare disease. Medical science recognizing the need and advisability of a confirmatory opinion, has established tests by laboratory methods to substantiate or refute the diagnosis. In this case, however, the doctor failed to obtain such confirmation by appropriate laboratory tests and apparently relied solely upon his own findings. This diagnosis was neither confirmed or supported by laboratory tests which were subsequently made. On the contrary, the laboratory evidence and findings as obtained by Dr. Adelman and developed by the Clinical Laboratory definitely ruled out a diagnosis of trachoma. Thus, it appears from the greater weight of the credible evidence adduced, that the clinical findings, coupled with the laboratory tests, definitely rule out the disease of trachoma as a factor in this petitioner’s disability, and I so find. I am satisfied and determine that the petitioner has sustained the burden of proof imposed upon her, and that she has established by the greater weight of the competent evidence, that she suffered from a corneal burn of her right eye due to the contact of the member with the said acid or flux and as a result thereof, developed an interstitial kerrititis which resulted in a total loss of vision of the right eye. Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. 396. The respondent has undertaken to explain the condition by attributing it to another cause. This takes the nature of an affirmative defense and the burden of proof shifts to the respondent to establish that defense by the required preponderance of evidence.. This, the respondent has failed to do. Simpson v. Creter, 62 N. J. L. J. 405.

As a result of the said accident, the petitioner is entitled to receive compensation for temporary disability from July 29th, 1938, to November 1st, 1938, and from February 6th, 1939, to May 12th, 1939, a period of twenty-seven and three-sevenths weeks, at the compensation rate of $12 per wéek (petitioner’s wages being $18 per week). Furthermore, I find that the petitioner has sustained a permanent disability equivalent to one hundred per cent, loss of usefulness of her right eye. This entitles her to receive compensation for a period of one hundred weeks, at the compensation rate of $12 per week, in the amount of $1,200.

It is therefore, on this 5th day of December, 1939, ordered, that judgment be entered in favor of the petitioner and against the respondent.

^ if: $ $ $ $ ^

Harry S. Medinets,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RAFFAELE GRIECO, PETITIONER, v. C. R. DANIELS, INC., RESPONDENT.
    Decided December 7, 1939.
    Por the petitioner, Mario Turtur.

    Por the respondent, John Vincent Fiore.

   In the case sub judice petitioner alleges an accident on October 1st, 1938, when he was struck upon the head by a large roll of canvas weighing three hundred to four hundred pounds throwing him sideways and injuring his back and his head, causing permanent injury.

Prom the testimony adduced at the trial it was determined that in 1921 or thereabouts petitioner suffered an automobile accident due to a collision with a Public Service bus. He sustained injuries to his back and ribs, fracturing a number of the latter. Suit was brought in the Hnion County Circuit Court resulting in a jury verdict of $1,500 which was paid.

Petitioner was under treatment for a considerable time both in this country and in Italy. Subsequently he obtained employment with the Roll-O-Matic, Inc., and on November 14th, 1936, sustained another accident resulting in severe contusions and a sacroilliac sprain on the right side of the back. He was treated for this injury by one Dr. Benjamin Lubin and discharged January 19th, 1937. He estimated his permanent disability on March 22d, 1937,' as seven and one-half per cent, of total.

Due to this respondent not being insured and there being some question as to their solvency, a receiver having been appointed, a default judgment was entered March 22d, 1937, awarding petitioner seven and one-half per cent, of total.

■ Respondent contends that at the time of the accident of October 1st, 1938, petitioner was still suffering from results of two accidents recited above. Petitioner alleges he had fully recovered from effects of same, and disability from which he now suffers is all chargeable to last occurrence.

Petitioner testified as to his condition after the first accident, his treatment both here and abroad, his return to work, his second accident, and alleges prior to October 1st he was in good physical condition, had no disability and had worked in a nursery and for the highway department chopping trees, lifting stumps and doing heavy labórous work.

He now claims he is suffering from headaches, dizziness, nervousness, insomnia and further states at intervals has spells.

Many lay witnesses were produced by petitioner to corroborate his testimony as to laborous work as well as present physical condition.

Dr. Ford, who examined petitioner January 7th, 1939, February 1st, 1939, and June 16th, 1939, qualified as a neurologist, diagnosed condition from a neurological standpoint as a concussion of the brain and a post traumatic neurosis. He estimated disability as thirty-five per cent, to forty per cent, of total.

Dr. H. Kleinberg, who treated petitioner for his head and back condition was of the opinion that petitioner suffered a sprained back and concussion of the brain. He estimated disability due to this accident as fifty per cent, of total, holding that he had fully recovered from previous accidents.

Dr. Leo Szerlip, who examined petitioner orthopedically, and who had studied X-rays which he took, testified that in his opinion, based upon the hypothetical question, his examinations and X-ray study that petitioner had fully recovered from previous injuries, and disability he now found in back was all due to October 1st accident. He found tenderness and loss of flexion and estension. X-rays disclosed moderate arthritic changes. He estimated disability as thirty-five per cent, of total.

Respondent produced Dr. Clement, who examined petitioner orthopedically August 1st, 1939, and found slight muscle spasm, tenderness and estimated disability as twenty-five per cent, of total.' In his opinion the condition he found was due to the series of accidents and not to any one.

Dr. Cucchinello, who examined petitioner December 20th, 1938, testified that in his opinion at that time the man could have returned to work and estimated his disability as twenty-five per cent, of total, five per cent, of which was due to accident in question. He was of the opinion that previous accidents had caused a permanent disability from which he had not recovered.

Dr. Blumberg, a recognized neurologist, examined petitioner January 6th, 1939. His various findings were negative. He diagnosed condition as a neurosis and estimated disability as five per cent, to seven per cent, of total.

I have carefully considered the testimony, both medical and lay, and have had an opportunity to observe petitioner in court on each trial day, and I have noted the demeanor of his lay witnesses, some of whom were prone to exaggerate.

Petitioner did have two previous accidents, both of which caused injury, the first one an injury of rather a serious nature. That is reflected by the extensive treatment he underwent for same. I am cognizant of the fact that any percentage of disability testified to as due to the first injury is mere conjecture. The second accident did definitely cause a disability of seven and one-half per cent, of total from petitioner’s own doctors’ testimony. * * *

Some consideration must be given to the previous back and rib injury. While perhaps same has become progressively better, still from the nature of same they did leave a residual defect.

Considering all the elements of the case, I am of the opinion that petitioner has suffered a permanent disability as the result of the accident of October 1st, 1938, and I am awarding compensation as follows: Temporary disability— from October 1st, 1938, to March 1st, 1939, at $12 per week. Permanent disability — thirty per cent, of total or one hundred and fifty weeks at $12 per week.

H: :J? % $ # ❖ ❖

John C. Wegnee,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HUGO BOBERTZ, PETITIONER, v. TOWNSHIP OF HILLSIDE, RESPONDENT.
    Decided December 11, 1939.
    For the petitioner, Kellogg <& Chance.

    For the respondent, Nathan Rabinowiiz.

   A formal petition having been filed in the above matter claiming compensation under and by virtue of the terms of the Workmen’s Compensation act of the State of New Jersey, and the supplements and amendments thereto, and answer having been filed, and the parties having appeared before me and testimony being taken in the presence of counsel for the respective parties, and memoranda having been submitted by both parties, I find and determine as follows:

On September 28th, 1937, and prior thereto, petitioner was in the employ of respondent as superintendent of plumbing and sewers. He alleges that on September 28th, 1937, while performing some of his duties in and about a sewer in the township of Hillside, some sewage splashed on his face, mouth and other parts of his body. He further alleges that on or about October 10th, 1937, while at the same sewer, in the course of his employment, he became ill. He promptly ceased work on that day and was shortly thereafter removed to a hospital where he remained until March 12th, 1938. Subsequently he was confined to his home for a period of time. The diagnosis was typhoid fever with complications resulting in empyema of the chest.

Petitioner testified that he was perfectly well up to the time when he visited the sewer the second time as above stated and argues that the incident of September 28th when the sewage splashed in his face and mouth, caused him to swallow some of it; that the sewage contained the typhoid bacillus and that by reason of the ingestion of the sewage on that date, he developed typhoid on or about October 10th, 1937.

It was shown that typhoid fever is caused by typhosus bacillus, a specific organism, the period of incubation of typhoid varying between seven and thirty days, although there were instances on record where it is as low as two days. It was shown that while petitioner could have contracted the typhoid by reason of the alleged accident of September 28th, yet it was also shown that there are many other sources from which the disease might have been contracted, such as milk, food, water, insects, such as the fly, human carriers, and others.

Petitioner’s attending physician, Dr. Konzelmann, in testifying on his behalf, said that all sewage does not necessarily contain the typhoid germ and that there are times when sewage may not contain it. It was also shown that the only method of definitely determining the presence of the typhoid germ is by analysis of the substance wherein it is claimed to reside.

There was no evidence that other employes similarly exposed to sewage, contracted the disease or that the disease was common to sewer workers. There is no greater prevalence of the disease among sewer workers than others.

There was no testimony showing that any of the sewage in the sewer systems of Hillside had ever been analyzed or that there was anything in the particular sewage that might justify the conclusion that petitioner contracted his disease therefrom. Examinations were made of the various members of petitioner’s family which resulted in negative findings so far as they were concerned. This evidence was offered to show that it was not likely that petitioner contracted the disease at home or that no member of the family was a carrier of the disease. It was also shown, however, that the resistance to the disease varies in different individuals. In any event, assuming that the disease was not contracted at home, it creates no probability that the germ was contracted through the ingestion of the sewage. I cannot find from the evidence that there was any probability that the typhoid was contracted by the petitioner in the course of his work in the sewer than from eating or drinking something. Petitioner is required to establish that his injury is related to or affected by the employment, that is to say, if, but for the employment, it would not have occurred. Proof of the contraction of the disease alone during the employment will not suffice. But injury, which on proofs that are sufficient and persuasive, would not have occurred but for the services rendered in the employment, amount to injury by accident. Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512.

The proofs in this ease are insufficient and not persuasive that the injury occurred by reason of the services rendered in the employment. The evidence creates a state of things which leaves me in the position, of having to guess ox conjecture where in fact petitioner became affected with the disease. There is no right to base an award on mere guess or conjecture.

With respect to the alleged accident of September 28th, testimony was adduced on both sides, respondent contending that petitioner had failed to sustain the burden of proving that said accident, which was the basis of petitioner’s claim, in fact occurred.

In view of the fact that I find that the petitioner has failed to satisfy the requirements of the law in that he has failed to show that the disease from which he suffered was due to the alleged accident, if it in fact occurred, I, therefore, consider it unnecessary to pass upon this question.

For the reasons indicated, the petition will, therefore, be and the same is hereby dismissed.

Stephen J. Lokenz,

Deputy Commissioner.


author: Giordano, Judge.

text:
    Monmouth County Orphans Court.
    IN THE MATTER OF THE ESTATE OF SOPHIA E. WILLISTON, DECEASED.
    Decided December 21, 1939.
    For the petitioner, Edward B. Talcott, Milton M. Unger.

    For Margaret F. McLaughlin, acting guardian, J. Victor Carton, appearing for Chester B. McLaughlin.

    Formerly representing Sophia E. Williston, guardian, now deceased, William E. Foster.

   Giordano, Judge.

This matter comes on before me in the form of a petition addressed to the court by one Edward B. Talcott of the borough of Point Pleasant, in the county of Ocean, in this state, as next friend for Louise Williston, an incompetent party. The petition prays for the appointment of a guardian ad litem for the purpose of taking an appeal from the probate of the last will and testament of Sophia E. Williston, mother of the incompetent party, which last will and testament was admitted to probate by the surrogate of the county of Monmouth on March 29th, 1937.

The Bank of New York and Trust Company and John Foster Dulles produced before the surrogate a paper-writing purporting to be the last will and testament of the said Sophia E. "Williston, deceased, wherein the said Bank of New York and Trust Company and John Poster Dulles were named as executors thereof.

On March 29th, 1937, the surrogate made an order admitting said paper-writing to probate as and for the last will and testament of said Sophia E. Williston, deceased, and did on that day grant letters testamentary thereof to said Bank of New York and Trust Company, one of the executors in said will and subsequently on April 30th, 1938, did grant additional letters testamentary to John Poster Dulles, another of the executors named in said will.

It is contended in the petition that the order of the surrogate admitting the said will to probate and issuing letters testamentary thereon is erroneous, improper and contrary to law because at the time of the making and of the supposed execution of said paper-writing, and for a long time prior thereto, the said Sophia E. Williston was of unsound mind and as such was incapable of disposing of her estate by will, and it is further contended in the petition that at the time said will was probated the said Louise Williston had been adjudged incompetent by the Court of Chancery of New Jersey, and was, at that time, confined to the Payne-Whitney Memorial Hospital in the city of New York; that she was thereafter transferred from said hospital to New York Hospital, Westchester Division, White Plains, New York, where she is now confined and to which institution she was formerly committed by an order made by the County Court of Westchester, New York, on March 30th, 1938.

The petition further recites that on or about the 18th day of April, 1939, the said Louise Williston, as petitioner, and petitioner, Edward B. Talcott, on her behalf, pursuant to a notice theretofore given to Margaret E. McLaughlin, guardian of the said Louise Williston, filed a petition in the Court of Chancery of New Jersey to traverse the inquisition in the cause in which the said Louise Williston was adjudged to be an incompetent in the Court of Chancery of New Jersey, or to award an issue to try the fact of lunacy, and whether she was capable of the government of herself, her lands and tenements, goods and chattels and such proceedings were had thereon that the Court of Chancery of Mew Jersey made an order on June 12th, 1939, wherein Ealph E. Lum, Esquire, one of the special masters of said court, was appointed to examine the said Louise Williston in the presence of Dr. Christopher C. Beling and Dr. Moses Keschner, two psychiatrists appointed by said court; that-thereafter the said special master having conducted said examination and filed his report, from which it appeared that the said Louise Williston was incapable of managing her affairs and was suffering from a type of insanity, and that a traverse of the inquisition would be futile and that she was. not capable of government of herself, her lands and tenements, goods and chattels; that thereafter and on or about the 6th day of July, 1939, the said Court of Chancery made an order denying and dismissing the petition of the said Edward B. Talcott and the petition of the said Louise Williston, as aforesaid.

The petition further recites that Margaret E. McLaughlin was appointed substituted guardian of the said Louise Willis-ton by the Orphans Court of this county on June -19th, 1931', and that she has continued so to be and is now acting as such guardian.

The question to be considered is whether this court should under the facts before it exercise its power and authority to grant the petition of Edward B. Talcott, as next friend, that he be appointed guardian ad litem for Louise Williston, incompetent, to appeal in her behalf from the probate of the will of her mother, notwithstanding that incompetent has a qualified and acting general guardian.

The time within which an appeal from -the surrogate may be taken has elapsed. The proceeding of the surrogate is a finality until it is disturbed by a direct attack upon it. dSTo attack has been made, and if one is made it should originate before the surrogate; the Orphans Court cannot on application set it aside.

Margaret F. McLaughlin, the appointed guardian, is acting under the authority of this court. Proofs are barren that she is arbitrarily exercising this authority and that she is unjustifiably refusing to take the proceedings prayed for in the petition. The court is circumspect of any deviation from the statute unless it is obvious that an injustice is being done. I find no evidence which would justify the abrogation of the statute, bio attack is made upon the appointment or upon the qualifications of the guardian, nor is there any proof before me that the guardian has an interest which is adverse to that of the incompetent person.

The power and authority which the courts have and which the courts are duty bound to exercise should be exerted when satisfied that it is for the best interests of the incompetent or insane person. The facts before me convey nothing more than an honest difference of opinion between this petitioner and the acting guardian.

I find no basis under the instant circumstances for the appointment of a guardian ad litem, and accordingly dismiss the petition and deny the application.