text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FLORENCE ROGERS, PETITIONER, v. NATIONAL SILK DYEING COMPANY, RESPONDENT.
    For the petitioner, Donald M. Waesche.

    For the respondent, Charles W. Broadhurst.

   Hí Hí H* H* ❖ Hi

1. Simeon A. Rogers, of 269 Falmouth avenue, East Paterson, New Jersey, was on November 26th, 1926, and for sometime prior thereto, employed by the respondent as a laborer, his rate of pay being $22 per week.

2. He died February 11th, 1921, at the Paterson General Hospital from a strangulated hernia.

• 3. On November 24th, 1926, Simeon A. Rogers, upon the conclusion of the day’s work, complained of pain and of not feeling well to the petitioner’s wife, Florence Rogers. He was later confined to his bed and did not work for the next two days. He returned to work after this time and worked fairly steady up to February 12th, 1921, as appears from the records of the company. On this date he became ill and a Dr. Curtis was called. Dr. Curtis saw him on February 14th, 15th and 16th, 1921. He ordered him to the hospital on February 16th, 1921. Simeon A. Rogers died in the Paterson General Hospital on February 11th, 1921, about twenty-four hours after his admission.

4. The petitioner, Florence Rogers, testified that on November 26th, 1926, she, for the first time, saw her husband’s side, and at that time there appeared to be a black and blue spot on his left side in the region of his hip, which was some four inches in size and somewhat swollen.

5. It was stipulated by counsel that Dr. Curtis, if called as a witness, would testify that when he examined the decedent on February 14th, 1927, he found that he had a hernia at about the place where Mrs. Eogers had testified the black and blue area was situated. It definitely appears that no physician was consulted from November 24th, 1926, to Feb-, ruary 15th, 1927. The doctor would further have testified that, in his opinion, the hernia could be due to a blow and that, in his opinion, it did not exist longer than about November 24th, 1926. He would further testify that the death was due to the hernia.

Application was made at the conclusion of petitioner’s case, by counsel for the respondent, for dismissal of the proceedings on the following grounds — first, there was no evidence before the court that the hernia from which Simeon A. Eogers died was caused by an accident' arising out of and in the course of his employment with the respondent on November 24th, 1926, as claimed; secondly, that the uncontradicted proof showed deceased did not consult a physician within twenty-four hours from the date of any alleged accident, as required by the statute; thirdly, that the petitioner failed to prove prostration as required by the act; fourth, that the petitioner failed to prove the descent immediately followed the cause; fifth, that petitioner failed to prove notice to the respondent within twenty-four hours, as required by the act. After consideration of the argument of counsel on the matter, I am of the opinion that the motion should be granted for the reasons stated.

Harry J. Goas, Deputy Commissioner.


source: Caselaw Access Project

author: Harry J. Goas, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation. Bureau.
    ROBERT RINGWALD, PETITIONER, v. HEALTH PRODUCTS CORPORATION, RESPONDENT.
   1. That on January 18 th, 1927, the petitioner was employed by the respondent at a weekly wage of $30 as a millwright, in and about its business, and while so employed, in the removal and erection of machinery, he was caught in the pulley belts thereof, rendered unconscious and his clothing torn from him, sustaining the injuries thereafter complained of. Due to the exposure to which he was subjected on that cold Januarj1- day he contracted bronchitis. The petitioner was then removed to his home and under the care of the plant physician, Dr. Briestadt, who treated him for numerous external injuries to his back, limbs, arms, chest and ribs and for the bronchitis. Dr. Briestadt testified that the bronchitis sustained was due to the exposure resulting from said accident and I as a matter of fact find that to be so. Dr. Briestadt, after about two months’ treatment, recommended Dr. Bear, a masseur, to the petitioner, to whom the petitioner went for treatments to his back some twenty odd times, and during this period and until the present time, the petitioner was under the care and treatment of Dr. Loux. The respondent had due knowledge of the said accident and the same arose out of and in the course of the employment of the petitioner with the respondent, and that intoxication was not the proximate cause of the said accident and that the injury was not self-inflicted.

2. It appears from the testimony of petitioner and from testimony of physicians who examined and treated the petitioner, and I find, as a matter of fact, that the petitioner sustained the injuries to his chest, shouders, back and right leg, and the resulting bronchial injuries, injuries to his nervous system and the internal injuries he now complains of. Dr. Loux testified that from April, 1926, until about a month prior to the said hearing, he has been in attendance, irregularly nevertheless, on the petitioner for injuries to his abdomen and his nervousness. The petitioner complains of nervousness which is testified to by the physicians of the petitioner. He complains of dizziness, injuries to his abdomen and stomach. It appears from the testimony of Dr. Dowd that the petitioner is suffering from diabetic iusipidus and traumatic neurosis, in addition to the bodily injuries which are apparent.

3. From the testimony of the petitioner and his physicians I find that the petitioner sustained the injuries which he now complains of and the injuries to his nervous system, and his internal injuries as a result of this terrifying experience of January 18th, 1926. It also appears from the testimony of the petitioner that he never returned to his work as a millwright, but has continued in the employ of the respondent as a maintenance man, which he characterizes as light work, sweeping and doing odd errands. The petitioner testified, and from all the testimony in the case, I find that petitioner is unable to do any heavy work as a millwright, which he was accustomed to do. From all the testimony in the ease, I therefore find that petitioner has sustained temporary disability for a period from January 18th, 1926, to March 22d, 1926, at the compensation rate of $17 per week, the full amount of which has been paid. I further find that petitioner has sustained permanent disability at the rate of twelve and one-half per cent, of the use of his body, for which petitioner is entitled to receive compensation for sixty-two and one-half weeks at the compensation rate of $17 per Aveek, beginning March 22d, 1926, twenty-five weeks at the said compensation rate having already been paid by the respondent, the balance which is now due and owing to the petitioner, shall be paid to the petitioner in a lump sum.

* * * * $ $ $

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN DONNELLAN, PETITIONER, v. PUBLIC SERVICE TRANSPORTATION COMPANY, RESPONDENT.
    For the petitioner, Charles Becker.

    For the respondent, Henry J. Sorenson.

   # í{í % # % #

I find that John Donnellan, the petitioner, was employed by the Public Service Transportation Company; that in his petition he alleges he met with an accident on January 4th, 1926, in such a manner that a jitney bus axel came into contact with his body in and around the region of the left kidney. On January 17th the petitioner met with another accident. During the interval between these alleged accidents the petitioner worked continuously. He testifies that January 24th, 1926, was the last day that he worked. After the alleged accident of January 17th, 1926, the petitioner visited the respondent’s physician, who treated him for muscle soreness. Subsequent thereto the petitioner visited Dr. Kessler, to whom he gave a history of having suffered pain from sometime in November, 1925. In August, 1926, when the petitioner was admitted to the Newark Memorial Hospital, he gave a history of having suffered the first symptom of pain April 26th, 1926. From the apparent discrepancy as to the date of the alleged accident, and from the discrepancies as to the facts with regard to when the petitioner first suffered pains, I 'cannot say that I have sufficient facts before me from which I can draw a conclusion that the petitioner met with an accident.

But, let us assume that he did meet with an accident. Dr. Haussling testified that he diagnosed the petitioner’s condition to be hydro nephrosis, and that this condition was chronic in character. Dr. Haussling’s testimony further disclosed that when the petitioner was received in the hospital there was no history of injury given, 'and that he was further convinced that this was not a case of traumatic hydro nephrosis because the petitioner had continued to work for about two weeks after the date of the alleged accident. Dr. Haussling further testified that a trauma severe enough could aggravate a condition of hydro nephrosis, but that was not what occurred in this ease. After having made a diagnosis of the petitioner’s condition, Dr. Haussling removed the petitioner’s left kidney.

Dr. Menks testified that he cystoscoped the petitioner, and found that he suffered from an infected left kidney, which condition he diagnosed as hydro nephrosis, and that the function of the left kidney was entirely destroyed, and that, in his opinion, the condition was chronic — extending over some time. Dr. Menks further testified that the accident did not aggravate the petitioner’s condition if it had existed at the time of the alleged accident because a blow necessary to cause an aggravation would have to be of such severity as to cause a collapse of the petitioner. On or about May 26th, 1926, the petitioner visited Dr. Mautner, who testified that at that time he found no symtoms of an injury.

Prom the testimony in this ease I have come to the conclusion that there is but one possible question involved and that is, was the petitioner’s condition aggravated, and I am impressed by the testimony of Doctors Haussling and Menks, because they were the doctors who actually diagnosed petitioner’s condition for the purpose of prescribing treatment, and as a result of their advice he submitted himself to the above-mentioned operation. Dr. Mautner, who had been treating the petitioner before he was sent to the hospital, stated that his treatments were solely for a back condition, and because he did not know the cause of petitioner’s pains he sent the petitioner to the hospital, and to Dr. Haussling, and that Dr. Haussling’s findings were tru.e, and in accord with his own. He further testified that it was possible to aggravate such a condition by an injury.

Several doctors produced by the petitioner testified that the petitioner’s condition was caused by the alleged accident of January 4th, but no single one of these doctors treated the petitioner.

Therefore, I find that the weight of the testimony in this case clearly demonstrates that the petitioner’s condition was chronic, and the testimony further shows that if this condition was in existence on January 4th, the date of the alleged accident, and there was no aggravation of this condition because he did not suffer any collapse, but on the contrary continued to work for about two weeks, and assuming that there was an accident on either the 4th or 17th day of January, 1926, I am of the opinion that it had nothing to do with the condition which was diagnosed by Dr. Haussling as hjrdro nephrosis.

I, therefore, find that the petitioner has failed to sustain the burden of proof in showing that he met with an accident arising out of and in the course of his employment.

* * * :¡s * * *

Harry J. Goas, Deputy Commissioner.


author: Lawrence, J.

text:
    Monmouth County Circuit Court.
    ANNA WINFIELD, PLAINTIFF, v. DOROTHY VIVIAN SAUNDERS, AN INFANT, ET AL., DEFENDANTS.
    For the plaintiff, Philip F. Sauer.

    For the defendants, Eugene R. Hayne.

   Lawrence, J.

This is an action in ejectment. The suit was submitted to the court, without a jury, by consent of the parties, on the testimony and evidence offered and received at the trial, and is decided on the facts found and the law deemed applicable.

The facts are :

On July 1st, 1911, James B. Dayton (single) and Lucinda E. DeNyse (widow) conveyed to “Anna Winfield and Silas Winfield, her husband,” the land described in the complaint. The conveyance was in the usual form, including covenant of warranty of title, with no indication of the nature of the estate lodged in the grantees, other than the fee, and that arising out of the relation of husband and wife. The deed was delivered to the grantees named therein, and duly recorded. It was made and executed by the grantors in pursuance of a prior duly executed written contract for sale made by Dayton and Mrs. DeNyse with Anna Winfield (so called, but not the plaintiff), who made the payments in part at least of the consideration money at the times and in the manner stipulated in the contract. No evidence was offered as to how much or what part, if any, of the purchase price was paid by Silas Winfield. A dwelling house was subsequently erected on the land and certain bonds and mortgages were signed and duly executed by Anna Winfield and Silas Winfield, as her husband, the grantees named in the deed, for loans obtained thereon by them. One or the other of these grantees paid from time to time, out of their own earnings, the interest and sums on account of the principal of these mortgages, together with the taxes, insurance premiums and other fixed charges on the property, including repairs. Both grantees entered into possession of the premises and actually occupied them until April 4th, 1924, when Silas Winfield died intestate. Anna Winfield then continued in possession and occupation until June 17th, 1926, when she died testate. Her will, duly admitted to probate in the office of the surrogate on July 19th, 1926, devised the premises to Dorothy Yivian Saunders, the infant defendant, subject to a life estate therein of the other defendant, James Holmes.

Plaintiff, who admittedly was not the Anna Winfield named in the contract to purchase the land or in the bonds and mortgages, and in fact is not the woman to whom delivery of the deed was made as a grantee, and likewise not the person who entered into joint possession and occupation with Silas Win-field, now seeks, in this action, to obtain possession of the premises as surviving tenant by the entirety, basing her claim on an alleged marriage to him on April 29th, 1888. Her maiden name was Anna Bowles. She testified that the ceremony was performed in the city of Brooklyn, New York, and gave the name of a minister who she states officiated. Neither he nor any witness present was produced at the trial. After this alleged ceremony, plaintiff further testified, she lived with Silas Winfield as his wife at Long Branch, in this county, and on March 31st, 1889, a son was born to them who was named Thomas, but thereafter, it appears, went by the name of Bowles, his mother’s maiden name, and still does. The evidence is, however, that Silas from time to time recognized him as his son. Proof of the claimed marriage was not established at the trial by any formal record or any witness present at the time. Such evidence had been sought, it appears, but could not be obtained for the reason that the minister could not be located and no formal record could be found in any public office in Brooklyn where such records are usually kept. Such proof as was offered was confined to the statements of plaintiff and to those of one or more witnesses examined in her behalf who testified that she and Silas had lived together at Long Branch and that while so living together the 'child had been born. She further testified that they had lived together until 1893, when he deserted her and she had not thereafter had anything to do with him. He appears to have gone to New York City but three or four years later he returned to New Jersey and took up his residence at Asbury Park, about six miles from Long Branch, where she lived with her family when not employed and where her son lived until he became old enough to go out and work for himself. While it appears that the son frequently visited his father and plaintiff knew where the latter was, she admits that she had no communication with him and made no effort to have him resume their alleged marital relation or to require him to provide for her and the child.

Por a number of years prior to 1911 (when the deed in question was made) to 1924 when he died, Silas lived and worked in Asbury Park. During all of these years he neither lived nor had anything to do with the plaintiff who obviously acquiesced in the separation if, in fact, they had been married. The proofs, however, show that sometime before 1911, and continuously thereafter until his death, he lived with a woman (not the palintiff) who went by the name of Anna Winfield, was known in the neighborhood as his wife, and who entered into the contract to purchase the land in dispute, paid out of her own earnings, in part at least, the consideration money fetipulated therein and participated in the delivery of the deed as a grantee. She it was, moreover, who executed with Silas as her husband the bonds and mortgages to secure the loans negotiated at the time the dwelling was erected on the land and thereafter assisted in the payment of the taxes, insurance premiums and other charges. It is admitted that this woman did live with him at the time of the transaction here involved and continued to do so until his death, a period of ten or twelve years, but it is insisted that plaintiff and not the woman who went by the same name remained his lawful wife and is now entitled to possession of the locus in quo as surviving tenant by the entirety under the title vested by the deed.

It is further urged that no evidence can be received, or is legally admissible, for the purpose of identifying the woman grantee named in the deed, but that the court must assume that such grantee was intended to be the plaintiff as the legitimate wife, for the reason that such evidence, if received, as it was at the trial, would tend to alter or vary the terms of a. written instrument contrary to the rule laid down in Naumberg v. Young, 44 N. J. L. 331.

The rule applicable, however, appears to be that when the name of a grantee, as written in a deed, is capable of being applied to two or more persons, parol evidence is admissible to identify the grantee named. In such a case a latent ambiguity exists, which may be removed by extrinsic evidence. It is a common and well-established practice to admit parol testimony, to identify persons or property named in a deed or record. This does not in any way contravene the rule that parol evidence will not be received to contradict or vary the terms of a written instrument; for the object of this evidence is not to contradict the deed, but, by showing the circumstances under which it was made, to enable the court or jury trying the case to ascertain the person or property referred to, so as to carry into effect the intention of the parties to the instrument. 22 C. J. 1192, § 1593, citing footnote 11— Wolff v. Elliott, 68 Ark. 326; 57 S. W. Rep. 1111, where it was held that a deed to “John Elliott and Amanda Elliott, his wife,” as grantees may be shown by parol evidence to have been made to a woman to whom John Elliott was unlawfully married while having a wife living, also named Amanda Elliott. Also 10 R. C. L. 1078, §§ 274, 275; 18 C. J. 174, § 56; 176 (footnote 49); Cubberly v. Cubberly, 12 N. J. L. 309; Kupferschmidt v. Agricultural Insurance Co., 80 Id. 441, 444, 445, and cases cited.

A latent ambiguity exists when, on the face of the paper, no doubt or uncertainty appears, but by proof aliunde the language is shown to be alike applicable to two or more persons or things, the uncertainty or ambiguity in such case being removable by the same character of proof as that by which it is made to appear. 8 R. C. L. 1041, § 96; 22 C. J. 1192, and cases cited, footnote 11, p. 1193.

Plaintiff must depend upon the strength and validity of her own title. Hoyt v. Buckenmyer, 96 N. J. L. 245; Nugent v. Lindsley, 97 Id. 268. Under the proofs, it is clear that she was not the person who entered into the contract to purchase the land in question, paid any part of the consideration money, or received delivery of the subsequent deed pursuant to such contract as one of the grantees, or thereafter executed the bonds and mortgages to which reference has been made. In the circumstances, since she was not the grantee actually named in the deed and there is no evidence that she was so intended, ho such implication can arise. She cannot, therefore, take under the deed as surviving tenant by the entirety. Judgment may be entered for the defendants.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNIE VAN WART, PETITIONER, v. GREGORY’S GARAGE, RESPONDENT.
   This is a proceeding on a petition for compensation, under an act entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment and establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder, approved, April 4th, 1911,” and the acts amendatory thereof and supplementary thereto. The facts in the case have been stipulated by counsel of the respective parties substantially as follows:

Petitioner is the widow of John William Yan Wart, who, on and prior to January 25th, 1924, was employed by the respondent as an automobile mechanic. On that date, the said John William Yan Wart, while working under an automobile in respondent’s garage at Englewood, New Jersey, inhaled the exhaust gases from the automobile. It is agreed between the parties that the accident thus described arose out of and in the course of the said John William Yan Wart’s employment with the respondent. As a result of the said accident, the said John William Yan Wart sustained disability total in character and permanent in quality. Respondent paid compensation to the said John William Yan Wart on the basis of disability, total in character and permanent in quality, at the rate of $17 per week, from the date of the accident. The last payment of compensation was made on November 9th, 1926, which payment was for the compensation which had accrued as of that date. On November 12th, 1926, the said John William Van Wart died, as a result of the accident, and on February 23d, 1927, his widow filed a petition for compensation as a dependent of the said John William Van Wart. It is agreed that the widow was solely dependent upon her husband. At the time of his death the said John William Van Wart earned $35 a week.

Eespondent contends that the petition is barred because it was not filed within one year from the date of the accident, as required by section 23-h of the Workmen’s Compensation act. The contention of the petitioner, on the other hand, is that the petition is good because it was filed within one year from the last payment of compensation.

Section 23-h is as follows: “In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the workmen’s compensation bureau, at the state house, in Trenton, within one year from the date on which the accident occurred, or in case an agreement of compensation has been made between such emploj^er and such claimant, then within one year after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by such employer, then within one year after the last payment of compensation.” It is to be observed at the outset that this section includes all claims for compensation on account of personal injury or death.

This section establishes the main limitation that all claims for personal injuries or death shall be forever barred, unless a petition is filed within one year after the date on which the accident occurred. This limitation, however, is qualified- by two exceptions, viz.:

1. “Of in case an agreement of compensation has been made between such employer and such claimant, then within one year after the failure of the employer to make payment pursuant to the terms of such agreement;” and

2. “Or in ease a part of the compensation has been paid, by such employer, then within one year after the last payment of compensation.” . It is clear that the petitioner in the present case cannot avail herself of the first exception, for the reason that the language of that exception contemplates an agreement of compensation between the employer and the claimant. No agreement of compensation has been made between the petitioner and the employer in this case. If the petitioner can recover, therefore, it must be under the second exception, viz.: “Or, in ease a part of the compensation has been paid by such employer, then within one year after the last payment of compensation.” It is significant that the second exception is set off from the preceding part of the paragraph by a semicolon, which is a mark of grammatical punctuation used to indicate a separation in the relations of the thought, a degree greater than that expressed by the comma. It is also significant that the last clause of the paragraph begins with the disjunctive “or.” It would seem from the punctuation and the use of the disjunctive “or” that the intent of the legislature was to set off the second exception in sharp contrast to the main limitation and the first exception to it. In other words, the second exception, by reason of the use of the semicolon and of the disjunctive “or,” constitutes a limitation different in kind as compared with the main limitation or the first exception to it. It is clear that the second exception does not contemplate an agreement between the claimant and the employer; for if it did, it would be substantially the same as the first exception.

The question thus raised is what is meant by “part of the compensation,” as used in the second exception. As pointed out above, the phrase “part of the compensation,” cannot mean part of the compensation which the employer has paid by reason of an agreement; for if that were so, the first and second exceptions would be identical.

It is fundamental that in construing the statute, an endeavor should be made to ascertain the intent of the legislature and give effect thereto. The legislative intent is to be derived from a view of the whole act. In re Merrill, 88 N. J. Eq. 261, it was said that the real intention when ascertained will prevail over the literal sense of terms. In other words, when words are not expressed, the intention is to be collected from the context and the occasion and the necessity of the law and from the mischief felt and the remedy in view; and the intention is to be taken or presumed according to what is consummate to reason and good discretion'. Section 23-h must be read in connection with the whole act.

Paragraph 7 provides that “when an employer and employe shall, by agreement, either expressed or implied, accept the provisions of section 2, compensation for personal injuries to or for, the death of such employe shall be made by the employer according to the schedule set forth in the act.”

In paragraph-8 it is said: “Such an agreement [that is to accept the provisions of section 2] shall be a surrender by the parties of their rights to any other method or form or amount of compensation or determination thereof, than as provided in section 2 of the act and shall bind the employe, himself and for compensation for his death, shall bind his personal representatives, his widow and next of kin, as well as the employer.” The schedules referred to in paragraph 7 are contained in paragraphs 11 and 12.

Paragraph 12 contains the provisions for the computation of compensation payable to dependents in case of death of the employe.

In paragraph 12-k, provision is made that the compensation, in case of death, shall be paid during three hundred weeks.

Paragraph 14-a provides: “Compensation for all classes of injuries shall run consecutively and not concurrently and except as provided in paragraph 14, as follows: “First, medical and hospital services and medicines as provided in paragraph 14. After the waiting period, compensation during temporary disability. If total period of disability extends beyond seven weeks, compensation to cover waiting period. Following both, either or none of the above, compensation consecutively for each permanent injury. Followihg any or all or none of the above, if death results from the accident, expenses of last sickness and burial. Following which, compensation to dependents, if any. In no case shall the total number of weekly payments be more than five hundred, except as provided in paragraph 11-b and 12-k of this act.”

Under section 2 of the act, the employer is obligated to pay compensation, not only to the injured employe, but also to his dependents where the death results from the accident. Thus, where an employer has paid compensation to an employe, and the employe subsequently dies, as a result of his injuries, the employer’s obligation under the statute, to pay compensation, is not discharged until he has paid the employe’s dependents compensation as provided in the act; should the employer, in such a case, fail or refuse to make the payments of compensation to the dependents, after the death of the employe, only a part of the compensation which the employe was obligated by the provisions of the act to pay, would have been paid.

The dependents’ right to compensation is upon an equal standing with the ' employe’s right to compensation; the theory of the Compensation act is that an employe shall receive compensation according to the schedules of compensation set forth in the act, and, if death results from the injury, his dependents shall receive compensation in accordance with paragraph 12 of the act. I conclude that the meaning of the words “part of the compensation,” as used in section 23-h, means part of the compensation which the employer is obligated to pay to an injured employe and in case of death, as a result of an injury, compensation to his dependents in accordance with the provisions of the act.

Under paragraph 12-k, compensation in case of death is limited to three hundred weeks. By paragraph 14-a, compensation for temporary disability, permanent disability to dependents, if death results from the accident, is limited to five hundred weekly payments. Under this latter section, the legislature, in effect, has said that if two hundred weeks of compensation have been paid to an employe who dies as a result of his- injuries, leaving dependents, the latter are entitled to three hundred weeks of compensation. It is clear that the obligation of the employer to pay compensation does not cease at the death of the employe who dies as a result of his injuries, leaving dependents. If more than two hundred weeks of compensation have been paid to the employe, then the obligation of the employer to pay compensation to the dependents ceases when the payments to both the employe and his dependents aggregate five hundred weeks.

It should also be observed that in the second exception, no mention is made as to whom “part of the compensation” shall have been paid. Under the Compensation act, compensation can be paid only to an injured employe, or to his dependents. See section 22. It has been seen that section 23-h applies to payments for compensation on account of death, as well as on account of personal injury. It would seem that the intent of the legislature was to fix the limitation from the date of the last pajunent to either the injured employe or his dependents, or both. In other words, in the case of dependents, their claim would be good, providing the petition were filed within a year from the last payment of compensation to the employe, or to themselves. It may well be that the legislature, in adding this last exception to section 23-h, contemplated such a situation as is presented in this case where the emplojrer has acknowledged his liability by the payment of compensation to the employe for more than a year from the date of the accident.

The legislative scheme is clear. Compensation shall be paid to the employe during his temporary disability, if any, and thereafter, for his permanent disability, if any. Should death result from the accident, during the time that payments are being made for either temporary or permanent disability, compensation shall then be payable to the employe’s dependents, if any. If less than two hundred weeks of compensation have been paid to the employe himself, the dependents are entitled to compensation for a period of three hundred weeks; if more than two hundred weeks have been paid to the employe, then the dependents shall receive compensation until five hundred weeks of compensation have been paid to the employe and his dependents. I cannot adopt the view that the dependents’ right to compensation would be barred where an employer has paid compensation to the employe for more than a year after the accident and the employe subsequently dies as a result of his injury. If this view prevailed, it would be necessary for those dependent upon an injured employe, to whom compensation is being paid either for temporary or permanent disability, to file a petition within one year from the date of the accident, while the employe himself was still living, in order to protect their rights under the statute. Certainly such a thing was not within the contemplation of the act. The dependents have no standing in court until the employe’s death, as a result of his injury. It seems to me it would be absurd to hold that in case where an employe has been paid compensation up to his death for a period of more than a year after the accident, that the right of the employe’s dependents is barred, because a petition was not filed within one year from the date of the accident. In.view of the foregoing, T conclude that the petition in this case is not barred by section 33-h of the act.

# * * # ‘ * ❖ *

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbih, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JACOB BACHER, BY HIS NEXT FRIEND, GUSSIE BACHER, AND GUSSIE BACHER, INDIVIDUALLY, PETITIONERS, v. MEYER RAFALOWITZ, RESPONDENT.
    For the petitioners, Norman L. Brundage.

    For the respondent, Michael Breitkopf.

   * * * :j: * * ili

Petitioners, Jacob Bacher and Gussie Bacher, are respectively, the son and widow of Joseph Bacher, who, on and prior to October 15th, 1926, was employed by the respondent as a painter. On that date the said Joseph Bacher, while climbing a ladder, carrying a can of paint, fell from the ladder to the ground and sustained a fracture of the fourth rib on the right side and severe shock. As a result of the fall and the shock and injury occasioned thereby, pneumonia developed, resulting in his death on the 21st day of October, 1926.

At the trial, respondent endeavored to show that at the time of his fall decedent was doing work other than what he had been told to do by his employer. The following question was asked by respondent of the witness Drabyk, on cross-examination : “When you got to the building where you were working, did you hear any conversation between Eafalowitz and Bacher?” Counsel for petitioner objected to the question on the ground that it was hearsay. I advised that I would admit the question subject to it being stricken out if I later determined that it was -improper. I have decided that the question was proper. It. appears that petitioner’s husband was told by respondent to do some varnishing work in the interior of the house in question; that he went inside immediately upon his arrival at the house on the morning 'in question and remained therein for some time. Drabyk, a fellow-employe, who was called by respondent, testified that shortly after his arrival at work on the morning in question he went upon the roof and started to work, staining the roof, and that Bacher went inside the building.' Drabyk had finished about one-third of the work when Bacher came upon the roof and began to assist in staining the roof. The testimony is not clear or satisfying as to just what varnishing work Bacher was supposed to do, nor how long it would take to complete the particular work he was supposed to do. We may infer from' the testimony that Bacher had done some varnishing in the interior of the house on the morning in question. It should be observed that none of the witnesses can say how much varnish was available at the house on the day in question.

According to the witnesses Bazan and Sedgwick, the varnish work in the interior of the. house had been completed prior to the accident. These witnesses were disinterested and appeared to me to be telling the truth. Under the circumstances, Rafalowitz can hardly be said to be a disinterested witness. It is significant that after the accident Rafalowitz went to. Bazan and directed him to go upon the roof and assist Drabyk in completing the staining of the roof, and further instructed Bazan to stay on the job until the roofs of the four houses were all occupied.

Rafalowitz would like it to be believed that he instructed Bacher not to go upon the roof. There was no corroboration of this, although the witness Drabj^k was present and heard the order given to Bacher by the respondent. In my opinion, this is an afterthought conceived by Rafalowitz. I am of the opinion that no such instruction was given to the decedent and I do so find. If there was any varnishing work to be done in the interior of the house, on the morning in question, it would probably be to touch up that which had been done and was such as would not take much time. Upon a careful consideration of the whole case, I have concluded that decedent was not acting in disobedience of respondent’s orders at the time of the accident, and that decedent was acting within the scope of his employment at that time. I do therefore find that the accident arose out of and in the course of the employment.

Charles E. Corbih, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WALTER SUK, PETITIONER, v. SHERWIN WILLIAMS COMPANY, RESPONDENT.
    For the petitioner, George W. Allgair.

    For the respondent, M. L. Somerville.

   The petitioner in this cause states that he is a machinist and metal worker employed by the respondent. Respondent admits this allegation, and also that his rate of wages is $42 per week.

Petitioner further contends that on December 15th, 1926, while working for respondent, he was injured by a piece of metal which struck him in the left eye with great force while making a weld. Petitioner further testifies that he gave notice of his injury to the respondent, and was treated by respondent’s chemist for the injury.

Petitioner further testifies that he was burned by sulphuric acid in the left eye, which had been previously injured, and that following the sulphuric acid burn he was sent to respondent’s physician, Dr. Mack, of Bound Brook, New Jersey, for treatment.

Respondent denies knowledge of the accident which occurred on December 15th, 1926, but offers no proof whatsoever as to whether or not the same actually occurred. Respondent’s physicians deny that the sulphuric acid burn caused the total blindness of the left eye which exists at the present time. Respondent’s doctors further failed to express any opinion as to whether or not the blindness of the left eye was caused by a blow to the eye.

Dr. Levy, also of Bound Brook, New Jersey, who treated the petitioner when further medical attention was refused him by the respondent, states that it is his opinion and the opinion of a specialist of Philadelphia, who assisted in treating the petitioner, that the total blindness of the left eye was due to the injury which the petitioner sustained on December 15th, 1926.

It therefore appearing that the petitioner has sustained by a preponderance of the evidence the allegations alleged in his petition, it is therefore adjudged and decreed that the respondent pay to petitioner the sum of $17 per week for one hundred weeks, commencing with December 15th, 1926; to Dr. Levy the sum of $50 for'medical services, and the sum of $25 for his services as a witness at the hearing of this cause; to the stenographer in attendance for his services the sum of $10 and to George W. Allgair, the attorney for the petitioner, the sum of $150.

Charles E. Corbin, Deputy Commissioner.


author: Smith, Circuit Court judge,

text:
    Essex County Circuit Court.
    GENEROSO DAMIANO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ALEXANDER DAMIANO, DECEASED; GENEROSO DAMIANO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ANTONIELLA DAMIANO, DECEASED; GENEROSO DAMIANO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF GENEROSO DAMIANO, DECEASED; GENEROSO DAMIANO, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF NICOLINA DAMIANO, DECEASED; MARGARET LO RE, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF CARMELO VALENTINO, DECEASED; ROSE DAMIANO, BY GENEROSO DAMIANO, HER NEXT FRIEND; ANTHONY DAMIANO, BY GENEROSO DAMIANO, HIS NEXT FRIEND, PLAINTIFFS, v. BONIFACIO DAMIANO, ADMINISTRATOR OF THE ESTATE OF AGATA DAMIANO, DECEASED, AND STANDARD ACCIDENT INSURANCE COMPANY, A CORPORATION OF THE STATE OF MICHIGAN, DEFENDANTS.
    For the defendants, Collins & Corbin (by Edward A. Markley).

    For the plaintiffs, Milton M. Unger (by Leonard J. Emmer glick).

   Smith, Circuit Court judge,

sitting as Supreme Court commissioner.

There are a number of questions presented on this motion in the seven above-entitled cases.

The actions are based on two counts and arise out of an automobile accident which happened on July 3d, 1927, at a grade crossing in Belmar, Monmouth county, New Jersey, involving a ear driven by the defendants’ intestate, in which the plaintiffs’ intestate and two other of the plaintiffs were riding.

As to the first count, the allegation is that the defendants’ intestate was negligent in the management of the ear. In four of the cases plaintiffs’ intestate were infant children of the defendants’ intestate. Carmelo Valentino was also killed in the accident and had been riding with the defendants’ intestate, and her administratrix ad prosequendum, sues to recover damages for Carmelo Valentino’s death. Two other actions are brought, one by Rose Damiano and another by Anthony Damiano, by their next friend, against the administrator of the driver, alleging negligence upon the part of the driver. They were injured in the accident and allege negligence on the part of their mother, the driver, and therefore sue her administrator.

The second count is against the Standard Accident Insurance Company and alleges that the defendants’ intestate was indemnified by a policy of insurance against the plaintiffs’ claims. The indemnity in the policy is for the payment of any judgment recovered against Agata Damiano or her estate, and the only right of action given to the plaintiffs under the policy directly against the insurance company is as to any judgment that they are unable to satisfy against the deceased or her personal representatives. Any action brought before judgment and where proof of failure to satisfy is not alleged, is premature, and as to the second count the motion to strike out will be granted.

As to the first count, I will consider first the question raised as to the right of action of the administrator ad prosequendum, of the deceased children; those that were killed in the accident. The question here raised on this motion is as to their right to maintain an action under the Death act, because, it is alleged that no right of action would have existed in their favor against their mother if these children had not died. They were unemancipated children and it is claimed that the mother is not liable at common law to such child for a tort committed by her against such child. This question does not seem to have been passed upon by the Supreme Court or the Court of Errors and Appeals in this state. The question, however, has been well considered by Judge Ackerson in the Circuit Court in the case of Mannion v. Mannion, 129 Atl. Rep. 431; 3 N. J. Mis. R. 68, and the general principle is referred to in 29 Cyc. 1663.

In determining this motion I will adopt the conclusion of Judge Aekerson and hold that had the children not died they would not have had any action against their mother for her negligence in causing them an injury. The Death act gives a right of action only for a tort committed against the deceased where the deceased would have had a right of action if death had not ensued. Under these circumstances, there not being a right of action at common law by an unemancipated child against her parent for a tort, no right of action is given by the Death act.

This conclusion also applies to the cases of the infant children who were injured, and the applications to strike out the first count as to all of the plaintiffs, except Margaret Lo Ee, administratrix ad prosequendum of the estate of Carmelo Valentino, will be granted.

There is a further question presented as to the survivorship of the action where the mother died. It is unnecessary to dispose of the case on this count as the ground which I have already considered disposes of the case.

As to Margaret Lo Ee, administratrix, it appears from the facts in the case that Carmelo Yalentino, her intestate, was not a child of the defendants’ intestate, and is therefore not governed by the principle applicable to the children. The application as to her will be denied. Separate orders should be submitted in each case.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LUCIANO COSTELLO, PETITIONER, v. VAN KEUREN & SON, RESPONDENTS.
   This matter comes before the court on a petition alleging increased disability of the petitioner since the last payment of compensation. It appears that petitioner, while in the employ of respondents, was injured, on February 16th, 1924, when a chimney struck him on both ankles. The accident arose out of and in the course of petitioner’s employment with respondents. A petition for compensation for his injuries was filed by petitioner, to which respondents filed an answer. The matter came on for hearing before Deputy Commissioner Goas, on December 17th, 1924. After hearing the testimony adduced by both parties, Deputy Commissioner Goas awarded compensation to the petitioner for temporary disability, from February 16th, 1924, to December 13th, 1924, at the rate of $17 per week, and ordered petitioner to submit himself to medical treatment, at the expense of the respondents, by a physician to be selected by the respondents, for a reasonable length of time, with a view to affecting a complete cure of his injuries, and, further, that said respondents continue to pay said petitioner compensation for temporary disability at the rate of $17 per week, during the period of said treatments, and to pay petitioner’s attorneys a counsel fee of $50.

It further appears that on May 16th, 1925, a stipulation was entered into and signed by the attorneys of the respective parties and approved by Deputy Commissioner Harry J. Goas, to the following effect: That said petitioner he paid compensation for temporary disability for the period from February 16th, 1924, to April 22d, 1924, or sixty-one and four-sevenths weeks, at the rate of $17 per week, and compensation for permanent disability to said petitioner’s right foot to the amount of twenty per cent, of the loss of use thereof, or twenty-five weeks, together with all medical expenses which had accrued to that date and that respondents pay petitioner’s attorneys a counsel fee of $100.

It further appeared that on December 19th, 1925, petitioner applied for a modification of the stipulation of May 16th,. 1925, and thereafter an agreement was made between the attorneys of the respective parties, by the terms of which petitioner agreed to submit himself to treatment by a physician selected by respondents, and respondents agreed to pay petitioner compensation at the rate of $17 per week, during the entire period of said treatments, at the conclusion of which it was agreed further proceedings would be taken, in accordance with said petitioner’s condition as of that time; that pursuant to the said agreement, petitioner did submit himself to treatment by a physician selected by the respondents, for a period of eight weeks, when it was agreed between the parties that the time had arrived for the determination of the extent, if any, of the petitioner’s additional permanent disability. On April 28th, 1926, it was agreed by and between the parties that said petitioner had not suffered any additional permanent disability. It further appears that all counsel fees and compensation hereunder above referred to, both temporary and permanent, together with all medical expenses, had been paid.

This matter came on before me on September 26th, 1927, at which time Eichard Spitz represented the petitioner and Norman L. Brundage the respondents. Petitioner, by counsel’s consent, was examined by Dr. Kessler, who reported that petitioner was suffering from disability, partial in character, but permanent in quality, to the extent of thirty-five per cent, to forty per cent, of the right foot; it was admitted by counsel that Dr. Kessler was of the opinion that the man’s foot was in such condition that a slight abrasion would render the condition of the foot much worse.

Dr. Yanderhoof, who had treated the petitioner since the accident, stated the man was under his care at St. Michael’s Hospital, Newark, during the month of March and part of April, and that at the time of his discharge from the hospital petitioner’s foot was in better condition than at any time since the accident. He further stated that at the time of petitioner’s discharge from the hospital he instructed petitioner to wash the foot and that sometime after petitioner’s discharge from the hospital he came to the doctor’s office for examination, at which time it was clear that petitioner had not followed the doctor’s instructions. Dr. Yanderhoof further stated that an abrasion or any irritation in the region of the injury would render the condition of the foot much worse, and further, that if the foot were properly cared for by the petitioner, it would become better. ■

I find that the petitioner was in St. Michael’s Hospital for a period of four weeks and is entitled to compensation therefor. I do further find that petitioner is now suffering from disability, partial in character but permanent in quality, to the extent of thirty-five per cent, of the right foot. I desire at this time to make a liberal award to petitioner, which shall be final and conclusive, as to compensation for injuries to the right foot. In my opinion, the condition of petitioner’s right foot, if properly cared for by the petitioner and protected against abrasion or irritation, would certainly not become worse. I do not think it is fair that the employer should be called upon to pay additional compensation to petitioner, when the cause of the disability is the lack of care and protection afforded to the foot by the petitioner; hence, I shall not be disposed' to reopen this case in the future and for that reason I am giving the petitioner a liberal award of compensation at this time.

It is therefore ordered that respondents pay petitioner four weeks of temporary compensation at the rate of $17 per week, and additional compensation for the disability partial in character, but permanent in quality, to the extent of fifteen per cent, of the right foot, or eighteen and three-fourths weeks at the rate of $17 per week, and it is further ordered that petitioner pay a counsel fee to his counsel in the sum of $75.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    THOMAS ROACH, PETITIONER, v. YELLOW CAB, INCORPORATED, RESPONDENT.
   (1) That on December 18th, 1926, the petitioner was employed by the respondent at a weekly wage of $25 a week and commission as a chauffeur of the respondent’s taxicabs in and about its business as an operator of taxicabs, and on that day the petitioner commenced work for the respondent at about four o’clock in the afternoon, took his station at the Hotel Riviera, Newark, New Jersey, and proceeded about the city on various fares from that time until stationed at the taxicab stand of the respondent at the Hudson and Manhattan railway station, Park Place, Newark, New Jersey, until he had occasion to take a fare to South Orange avenue and Norwood street, Newark, New Jersey, and after discharging the said passenger called his employers from a telephone box stationed on the corner of Stuyvesant avenue and South Orange avenue to inquire as to whether there were any calls in the vicinity to be made, as is the custom. The petitioner was directed to go to the corner of South Orange avenue and Sanford avenue for a fare.

(2) When the petitioner arrived, he observed that the respective passenger was slightly inebriated and was about to enter another taxicab known to be what is commonly called an “independent.” The prospective passenger, upon seeing the yellow cab drive up, discharged the independent cab and entered the cab owned by the respondent. The independent cab driver, the name of whom the petitioner is not aware, but whom the petitioner describes with a fair degree of certainty, resented the act of the passenger, and although not saying anything to the petitioner herein, gave the petitioner-a severe and resentful look.

(3) The petitioner was instructed by the fare to discharge him on Broad and Orange streets, Newark, New Jersey, and upon pulling his cab to a stop, petitioner noticed that the independent taxicab driver whom he encountered on South Orange avenue and Sanford avenue had followed him in the cab to Broad street. The independent driver accosted the petitioner, accused him of taking away a prospective passenger and treated him with violence. The independent driver departed with the admonishment “that he would get all that was coming to him.” The petitioner then assumed his cruising and returned to the parking stand belonging to the respondent, stationed in back of the easterly wing of the Hudson and Manhattan tube station, and while in the act of backing his cab in the rear of the Hudson and Manhattan tube station he was tripped, and while attempting to rise he was kicked in the jaw by an assailant whom he recognized as the driver of the independent cab whom he had met on two occasions earlier in the evening. The assailant fled and the petitioner pursued him, but was unable to overtake him. Petitioner then feeling a pain in his jaw went to his home, applied home solutions, and his brother, who testified in his behalf, testified to reporting the said accident that same evening to the starter in charge of the cab drivers at the Hudson and Manhattan tube station, and the starter, who testified for the respondent, did not repute this statement.

The -respondent's physician examined the petitioner a few days after the accident and the petitioner was examined by the state physician and treated by several other physicians and Dr. Guthrie, connected with the department.

In Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458: “A leading case in this state on the question involved, holds, where the injuries arose out of and in the course of the employment with the respondent comes within the province of the Compensation act and petitioner is entitled to compensation.”

To arise out of the employment, there must be a casual connection between the conditions under which the work is to be performed.

In Emerick v. Slavonian Roman Greek Catholic Church, 93 N. J. L. 282; 108 Atl. Rep. 223: John Emerick was employed by the respondent as bar tender in their saloon in Passaic. While there engaged in selling intoxicating liquors, he was shot and killed by a patron of the saloon. Judge Trenchard, in affirming the judgment of the Court of Common Pleas, stated that "where an accident is the result of a risk reasonably incident to the employment, it is an accident arising out of the employment. A risk is incidental to the employment when it belongs to or is connected with what an employe has to do in fulfilling his contract of service. It may be either an ordinary risk, directly connected with the employment, or an extraordinary risk, which is only indirectly connected with the employment, owing to the special nature of the employment.”

The duties of the claimant Avere such that subjected him to assault by employes of rival taxicab companies or independent cab drivers. Petitioner was about his employment in the act of picking up fares when an independent taxicab driver, aroused by the act of a passenger in accepting the cab of the respondent's company in preference to his OAvn, causing him to inflict bodily harm upon the petitioner, is an act which arose out of the employment of the petitioner. The petitioner sustained this accident at a place where he might reasonably be.

We cannot say that merely because the accident was caused by the act of a third person, even though the act was felonious, if at the time the workman sustained the injury he was exposed thereto by the nature of his employment. McFarlane v. Shaw, Court of Sessions Cases 273, p. 242, N. C. C. A.

I find that the petitioner has sustained an accident within the meaning of the Workmen’s Compensation act of New Jersey, which accident arose out of and in the course of petitioner’s, employment with the respondent. That intoxication was not the proximate cause thereof, nor was the injury self-inflicted.

Mr. Lehman, the starter at the respondent’s cab stand at the Hudson and Manhattan tubes, was notified of the said occurrence by a brother of the petitioner shortly after the said accident occurred. Mr. Lehman, when on the stand, did not deny the same. I find as a matter of fact that the respondent had due knowledge of the accident. Mr. O’Connell testified to a conversation with the mother of the petitioner a few days after the accident, and Dr. Seidman, the respondent’s physician, treated the petitioner. The only question involved, other than notice, is whether the said accident occurred while in the course of employment with respondent.

It is a well-recognized fact that there is constant rivalry between cab drivers in Newark, and from the fact that the entire episode occurred within two hours, or less, at a time when it was dark and according to the circumstances thereof as related by the petitioner and others leads me to the conclusion that the said accident occurred in and arose out of petitioner’s employment with the respondent, and I find as a matter of fact that the said accident did not occur out of personal animosity. The burden of proof of this claim rests with the respondent, and he has not produced any testimony to dispute the petitioner’s story and has produced no testimony to show that the said quarrel was of a personal nature. If the petitioner’s story is to be believed at all, it should be believed in toto.

Dr. Guthrie and Dr. Dowd testified to the condition of the petitioner, on behalf of the petitioner, and Dr. Seidman on behalf of the respondent, and from all the medical testimony, from the X-rays and from the appearance of the man while on the stand, and from the condition of his jaw, I find that the petitioner has sustained fractures of the jaw, and involvment of alveolar process, and the nerves thereof.

And I find that petitioner has sustained permanent disability to the extent of twelve and one-half per cent, of the usefulness of his body.

#$$$$$ #

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ILKO ZILICK, PETITIONER, v. AMERICAN SMELTING AND REFINING COMPANY, A CORPORATION, RESPONDENT.
    For the petitioner, David T. Wilentz, through James F. Patten.

    For the respondent, John F. Toolan.

   First. That John Zilick, now deceased, was on May 20th, 1926, in the employ of the respondent, the American Smelting and Refining Company, engaged in painting or stenciling distinguishing letters and marks on lead bars, which said employment was subject to section 2, chapter 95, laws of 1911, commonly known as the Workmen’s Compensation act, and the supplements and amendments thereto.

Second. That on quitting work on said date and returning home said John Zilick became sick with an inflamed or irritated throat diagnosed at the time by the attending physician for the respondent company as tonsilitis. Claim was made by petitioner at the hearing and testimony was offered by doctors who examined deceased between the 1st and 15th of September, 1926, that deceased was suffering from a stricture of the esophagus caused or induced by a caustic soda burn or by some other substance having properties similar to caustic soda. The said John Zilick died on December 8th, 1926. No direct testimony was offered by petitioner as to the exact cause of death except that Dr. Prank C. Henry, Jr., produced on behalf of the petitioner, testified that the stricture of the esophagus which he observed in September, 1926, would be a contributing cause of death providing no treatment was given to relieve the stricture. Dr. William.E. Ramsay, on behalf of the respondent, testified that death was due to gangrene of the lung and that death could in nowise be attributed either directly or indirectly to a stricture of the esophagus, and that in fact no stricture of the esophagus existed.

Third. Petitioner utterly failed to prove that there was any accident arising out of or in the course of the employment of the said John Zilick within the contemplation or meaning of section 2, chapter 95, laws of 1911, and the various supplements and amendments thereto, known as the Workmen’s Compensation act, or that respondent ever had any notice or knowledge of an accident to the said John Zilick while in their employ on May 20th, 1926, nor did petitioner prove that the death of the said John Zilick was caused or induced by any alleged accident at the plant while the said John Zilick was in the employ of the respondent company.

H? # i'fi i|i ^5 #

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK ANDES, PETITIONER, v. ALVIN H. THOMAS, TRADING AS LINCOLN SERVICE COMPANY OF NEW JERSEY, RESPONDENT.
   A petition was filed and served in the above-entitled cause, praying for compensation for injuries alleged to have been received as the result of an accident alleged to have occurred on August 30th, 1927, at the garage of the respondent, while petitioner was endeavoring, as he alleged, to lift a radiator on a Lincoln car, to replace same on said Lincoln ear; an answer was filed by the respondent and the cause was set down for hearing, which hearing was adjourned from time to time until the 21st day of December, 1927, when said cause first came on for hearing before Honorable Harry J. Goas, deputy commissioner of compensation, at 9 Eranklin street, Newark, New Jersey, in the presence of David Roskein, Esquire, counsel for petitioner, and Edwin Joseph O’Brien, of counsel for respondent.

Both the petitioner and the respondent, with their respective witnesses, were sworn and testified. After having listened carefully to the testimony of the various witnesses, observed their demeanor on the witness-stand, the manner in which they answered the various questions propounded to them by respective counsel, and considered what interest, if anjr, may have influenced them in giving the testimony which they gave, I have come to the following conclusion:

The story narrated by the petitioner, which was uncorroborated as to the happening of the accident, is not probable, to say the least, and falls far short of establishing a case, by the “preponderance of the testimony” even when considered in conjunction with the other witnesses whom he produced. The petitioner, a man of very slight build, who admitted in his own testimony that he was not able to do very heavy lifting prior to his alleged accident, claims that while lifting a radiator, the only evidence as to the weight of which was that it weighed approximately one hundred and seventy pounds, he strained his back, after he had gotten the radiator up as far as his chest. Petitioner’s wife and two other witnesses also state that in an altercation which occurred after the accident was alleged to have happened, petitioner raised his arm, with a wrench in his hand, to strike the respondent, despite the fact that according to his own story he was in a state of semi-collapse. There was also evidence to show that the radiator mentioned was in identically the same place that the respondent and petitioner had, together, placed it sometime preceding the alleged accident. These are but a few of the elements which convince me that the story of the petitioner is without basis in fact. There was also evidence introduced to show that petitioner went out and brought back two policemen, following an altercation over the tools, just before the petitioner left the garage as a result of his dismissal by the respondent. Petitioner never mentioned this fact in either his direct or cross-examination, and when confronted by this evidence on the respondent’s case, made no attempt to deny it.

Therefore, it appearing that the petitioner in this cause has failed to establish, by a preponderance of the evidence, that the alleged injury did, in fact, take place as he claims, arising out of and in the course of his employment.

*******

Harry J. Goas, Deputy Commissioner.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CORA L. IRONS, PETITIONER, v. HAUSE WASHED GRAVEL AND SAND COMPANY, RESPONDENT.
    For the petitioner, Francis L. Stone.

    For the respondent, Carl S. Kuebler, of McDermott, Enright & Carpenter.

   * * * * ❖ * *

I do find and determine from the evidence as follows:

First. — That Austin EL Irons, deceased, was on the 1st day of August, 1927, in the employ of Hause Washed Gravel and Sand Company, Wayside, New Jersey, as operator of an electric conveyer.

Second. — That the said Austin H. Irons, deceased, received for his services wages at the rate of $28 per week.

Third. — That on the said 1st day of August, 1927, the said Austin H. Irons, deceased, met with an accident which resulted in his death; that the said accident arose out of and in the course of the employment, and that death was caused by electric shock. The said Austin H. Irons was found dead at or about four p. m. on the day above mentioned, lying on the floor of the room containing the electric switches, compensator and other electric devices used in the operation of the electric conveyer. No one witnessed the fatality. There is no proof of accident other than by logical inference. The very nature of the decedent’s duties subjected him to an unusual hazard, that of electricity of high tension. There is testimony bearing out the fact that just prior to or at about the time the body of the deceased was found, there was a thunderstorm with considerable lightning. This, of course, adds to the already existing hazards, making it all the more likely for one employed in the capacity ás was the decedent to become shocked and killed by electric current. The testimony of Dr. Harvey W. Hartman, county physician of Monmouth county, who examined and also performed an autopsy upon the decedent on August 2d, 1927, establishes the fact that there were several burns on the body, one on the breast just below the nipple and two on the right hand; examination of the vital organs, such as heart, lungs, kidneys, &c., revealed them to be in a normal state. Ho other conclusion is susceptible but that the death of the said Austin H. Irons was caused by electric shock. If an employe is found dead and there is no evidence as to how he met his death, the court will presume it was by accident arising out of and in the course of the employment, provided the body is found under circumstances reasonably connected with the said employment. DeFazio’s Estate v. Goldschmidt Detinning Co., 87 N. J. L. 317, and Muzik v. Erie Railroad Co., 85 Id. 129. Although the respondent contends that death was caused and due to natural causes, this, however, is not borne out by the testimony. Where the respondent seeks to avoid liability for a cause for which it is not responsible, the burden of proof is on the respondent to show such cause. Atchison v. Colgate Co., 3 N. J. Mis. R. 451; 131 Atl. Rep. 921.

Fourth. — That the respondent had actual knowledge of the occurrence of the said accident.

Fifth.- — That the said employment was subject to the provisions of section 2, chapter 95, laws of 1911, known as the Elective Schedule of Compensation, and that the petition herein was filed with the secretary of the workmen’s compensation bureau, Trenton, New Jersey, on August 19th, 1927, and that as the accident occurred on August 1st, 1927, the petition was filed within one year after the accident as prescribed by law.

Sixth. — That the said Austin H. Irons, deceased, left surviving him a mother, Cora L. Irons, the petitioner, who I find was a partial dependent to the extent of $10 per week, being the net contribution of the said decedent to the petitioner each week up to the time 'of the accident.

Seventh. — I find, therefore, that the petitioner is entitled to compensation as a partial dependent for a period of three hundred weeks at the rate of $3.50, beginning with the 1st day of August, 1927, and I further find that the petitioner is entitled to the sum of $150 for burial expenses.

Eighth. — I further find that the petitioner’s attorney, Francis L. Stone, Esquire, is entitled to an allowance of counsel fee, which I fix in the sum of $150, and which I assess against the respondent.

Ninth. — Costs of stenographic attendance fees will be allowed the petitioner.

❖ * t'fi * # * sH

John J. Stahl, Referee.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELEANOR M. LE GRANDE, BY HER NEXT FRIEND, EDNA LE GRANDE, AND EDNA LE GRANDE, INDIVIDUALLY, PETITIONERS, v. HUBBARD & LANGE, AND AMERICAN MUTUAL INSURANCE COMPANY, RESPONDENTS.
   % * * # ifc * ❖

On or before the 25th day of January, 1927, the said Horace R. Le Grande was employed by the respondents Hubbard & Lange as a steam-fitter. On that date he was engaged in installing a steam trap in the boiler room of a private house situated in the environs of New Brunswick, New Jersey. He arrived at his place of work at the usual time that morning. According to the testimony of his fellow-workman, he appeared to be in good health when he came to work. His widow, who last saw him on the evening of January 23d, 1927, testified that he appeared to be in good health. Agnes Busehner, at whose home he stayed at New Brunswick, testified that she saw him in the evening of January 24th, 1927, and that he appeared to be a well man.

The floor of the boiler room in which decedent was working was from three to four feet below the floor of the building and was about fifteen feet in length by twelve feet in width, and twelve or fourteen feet in height. There were two boilers in the room, only one of which, however, was in operation on the morning of January 25th, 1927. There were two windows in the boiler room, both of which were closed, and one door, which was closed from time to time. To install the trap, it was necessary for Le Grande to go up on a ladder and to work near the ceiling. The steam trap was in front of the boiler, which was in operation and about five or six feet away. The door of the boiler which was in operation was opened several times to admit coal, and one witness testified it was open for fifteen minutes while Le Grande was engaged in installing the steam trap. When he had been working on the ladder for about fifteen minutes, he came down the ladder slowly and acted “dopey,” as the witnesses describe it. He sat down for a few minutes and again went up the ladder. After working there for a few minutes he came down and said to his helper, Walter McManus: “You go up there, I can’t stand it any longer.” As he came down the ladder for the second time he still acted “dopey,” and sat in the boiler room for a few minutes; all witnesses agreed that he acted dopey and that he appeared to be weak. He was then taken home by a workman who said that he'was just able to walk.

On the afternoon of January 25th, 1927, Dr. Henry Haywood was called and found Le Grande in bed and suffering from a headache and soreness in the chest. He was in a state of shock and told the doctor that he had inhaled furnace fumes which had made him sick. The doctor testified that the physical examination was absolutely negative; that there were no physical signs that anything was wrong with the man. The doctor next saw Le Grande forty-eight hours later; the man’s physical condition was negative at this time, but he was still in a state of shock. On the 29th day of January, 1927, the doctor found that the man was much worse; he found rules in the chest and directed that Le Grande be taken to the hospital. Pulmonary pneumonia developed and the man rapidly grew worse and died on February 7th, 1927. In Dr. Haywood’s opinion, the original cause of the pneumonia was the inhalation of the furnace fumes. The testimony established that Eleanore M. Le Grande, a daughter of Horace E. Le Grande, was fifteen years of age on November 6th, 1926, and that she and Edna Le Grande, decedent’s widow, were actually members of the decedent’s household at the time of his death. Decedent earned $66 per week.

OPINION.

In considering whether Le Grande sustained an accident arising out of and in the course of his employment, not much reliance can be put upon the testimony of the witness Walter McManus, so far as relates to the presence or absence of coal gas in the boiler room on the morning of January 25th, although his testimony in this connection was somewhat self-contradictory, I am not disposed to disregard his testimony in tolo; it appears beyond contradiction, however, that on the morning in question the door of the boiler which was in operation was opened several times to admit coal, while Le Grande was engaged in installing the steam trap, McManus testifying the door remained open for about fifteen minutes. It is also uncontradicted that the boiler had not been completely covered with asbestos; that merely the seams of the boiler had been filled in and that a few days after Le Grande left the shop flames appeared through the seams at several points. It will be remembered that the boiler had been in operation during the preceding night. It is common knowledge that coal furnaces throw off fumes which are lighter than air and have a tendency to rise. It is also common knowledge that coal furnaces throw off carbon monoxide which is lighter than air and which has a lethal effect through its operation upon the human system, through the lungs. Certainly some of the furnace fumes escaped through the boiler door when it was opened from time to time. It is highly probable' that some gas escaped through the seams, where a few days later flames were seen. The boiler room was not a large one and had very little ventilation. The coal fumes would therefore have a tendency to collect and remain at or néar the ceiling.

The testimony was convincing that Le Grande appeared to be in good health before he went up the ladder to install the steam trap. He worked on the ladder but a few minutes when he came down slowly acting weak and “dopey.” After a short rest, he again went up the ladder for a period of about fifteen minutes, when he came down and said to his helper: “I can’t stand it up there any longer, you go up.” Thereafter, he sat in the boiler room for a few minutes, acting weak and “dopey,” as the witnesses testified. On the afternoon of the same day he was so weak that Dr. Haywood was called. Le Grande told the doctor that he had inhaled furnace fumes which had made him sick. The doctor found no sign of anything wrong with the man’s lungs at that time. The man had a headache and there was a soreness about the chest. Eorty-eight hours later, upon examination, there was no sign of any pulmonary trouble. The doctor’s testimony is clear and uncontradicted, that in his opinion the pneumonia from which Le Grande subsequently died was induced by inhalation of the furnace fumes. The preponderance of the testimony constrains me to find that Le Grande was exposed to furnace fumes which were the original cause of the pneumonia from which he later died. I do therefore find that he sustained an accident arising out of and in the course of his employment.

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W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LOUIS SPIEWAK, PETITIONER, v. CAMPBELL SOUP COMPANY, RESPONDENT.
    For the petitioner, Howard L. Miller.

    For the respondent, Crawford Jamieson.

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The petitioner claimed that he suffered from a hernia arising out of and in the course of his employment with the respondent about May 6th, 1927. The respondent denied that the petitioner suffered a compensable hernia in that — firstly, the petitioner was not prostrated and required to cease work immediately; secondly, that there was no severe pain in the hernia region; and thirdly, that the descent of the hernia did not immediately follow the cause.

The petitioner testified that he felt a pain in his stomach and in his leg above the knee, and that immediately after feeling this pain he sat down for ten minutes. He then testified that he went to the company nurse and told her that he had a pain in his stomach. He then went back to his foreman and asked to go home and the foreman sent him back to the nurse. Instead of going back to the nurse he went up on the roof of the plant and laid down for two and one-half hours until his usual quitting time — four-thirty p. m. The petitioner admitted reading and signing a statement which contradicts the part of his testimony about feeling a severe pain suddenly and about stopping work immediately and about sitting down after he felt the pain.

Dr. Lock, of Philadelphia, testified on behalf of the petitioner that he first saw the boy at six p. m., May 6th, 1927, and that the boy had a hernia.

A boy named Tozzi testified on behalf of the petitioner that he was a fellow-employe and that he saw Spiewak attacked with the pain. He testified in a direct examination that upon seeing the boy in apparent pain he went to him and did his work for him while the boy sat down. On a cross-examination, Tozzi said that the place where he worked in the plant was two or three hundred feet away from the place where Spiewak was working. He' further testified that he first went to help Spiewak at one-thirty p. m., and that he assisted him to lift several cages between one-thirty and one-fifty, the latter being the exact time that sudden pain was felt, according to Tozzi and Spiewak. Tozzi further testified that he helped Spiewak lift two cages between one-fifty and two o’clock.

Thomas Harrison, foreman for the Campbell Soup Company and having supervision over the petitioner, testified that at no time during the day of May 6th, 1927, did he see Spiewak prostrated. He did recall that the boy approached him on that date and told him that he felt sick and he sent the boy to the nurse. The boy went to the nurse and came back again saying he felt sick and wanted to go home. He further testified that he then told the boy that if he wanted to go home, to go back to see the nurse.

Mr. Monroe, acting referee in the workmen’s compensation bureau, testified that when he interviewed the petitioner at an informal hearing, the boy told him that he first felt a slight pain in his stomach and continued to work for an hour after that time.

After carefully examining the evidence in this case, .1 find that the petitioner has not proved that he was prostrated and compelled to cease work immediately after an accident and therefore dismiss the petition without costs to either party.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FLORENCE GLASSER, PETITIONER, v. WESTINGHOUSE LAMP COMPANY, RESPONDENT.
    For the petitioner, Charles Becker.

    For the respondent, M. F. Reges.

   íjc sjí íjí t'fi

1. That the petitioner was on January 21st, 1927, employed by the respondent in Division 324, at its factory, located at Bloomfield, New Jersey.

2. That the occupation of said petitioner in said employment was mounting radio tubes, which employment required the operation of two-foot treadles, one being operated by the left foot and the other by the right foot, the latter being operated on the average of about seven hundred times per hour; that the rear or heel end of the foot treadle operated by the right foot was disposed about one-fourth of an inch above the level of the floor and the front or toe end of said treadle was disposed about five inches above the level of the floor; that the petitioner operated said treadles while seated; that but a very slight pressure was required in the operation of the treadles.

3. That the petitioner’s average weekly wages were $19.

4. Petitioner claims for compensation for personal injuries received by her during the course of her employment, as a result of her right foot slipping from the right-foot treadle and striking the floor,, which injury according to the testimony of her family physician, Dr. Morris Parkas, was 'diagnosed as an acute traumatic sprain of the right ankle; that Dr. Earkas further testified that his examination of the injured foot showed a discoloration on the outer or right side of the foot slightly below the ankle; that when he examined the petitioner’s foot on the evening of January 21st, 1927, the petitioner advised him that she had met with an accident and that the history of this case as related to him by the petitioner furnished a basis for his opinion; that the day following the accident, which day was a Saturday, upon which employes only worked until twelve o’clock noon, the petitioner worked the full period with her average hourly rate of production although the petitioner testified that her foot bothered her on that day; that the petitioner did not seek out the clinic or hospital provided by the Westinghouse Lamp Company at its factory at Bloomfield, New Jersey, either on the day when the accident is alleged to have occurred or on the day following or any other day, although she knew where the hospital was located and for what purpose it was there; that she testified to having reported the accident to Mr. J. K. Wheeler, her foreman, which was categorically denied by Mr. Wheeler; that she testified that Dr. Lucy Bannister, the physician in charge of the hospital, paid her a visit at her home the week following the week in which the accident was said to have occurred, and that Dr. Bannister was pointed out by the petitioner in the court room as the person who visited her, and that Dr. Bannister categorically denied having visited the petitioner in her home at that or any other time; that the petitioner alleged in her petition that the accident occurred about nine o’clock in the morning and testified that it occurred about three o’clock in the afternoon; that on the witness-stand the petitioner was extremely reluctant in answering questions on cross-examination; that there were no objects sufficiently near the right-foot treadle against which the petitioner could have struck her foot; that in view of the location of the injury and position of the discoloration on the outer aspect of the foot and the distance of the foot treadle from the floor as well as the fact that the petitioner’s weight was not upon the foot at the time the accident was said to have occurred, that it seems to me to be beyond the realm of probability that her right foot could have been injured in the manner claimed by the petitioner.

Hs Hi Hi H* H» Hi v

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN GLYNN, PETITIONER, v. JOHN F. BOYLE COMPANY, RESPONDENT.
   This matter coming on before the court after petition and answer having been filed and in the presence of the attorney for the petitioner and respondent, and the court having considered the evidence produced by both parties, and it appearing that petitioner was employed by the respondent, and that on or about the 25th day of May, 1927, he received an injury to his fingers, and it further appearing that he was employed as a brakeman whose duties were to pick up the waste paper lying about the machines after the papers were trimmed and carry it to the back, and it appeared on behalf of the respondent that the petitioner was instructed not to place any paper in the rolls and that he had done so on previous occasions, but each time he had been warned against doing same, and on the date of this alleged accident it appeared that he did place the paper in the rolls and caught his fingers, which caused the injuries which he filed the petition for.

I do find and determine that at the time of the alleged accident the petitioner was disobeying orders and he was not acting in the course of his employment.

Hí ❖ . Hi Hi Hi Hi

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AUBRAY CLABORN, PETITIONER, v. CAMPBELL SOUP COMPANY, RESPONDENT.
    For the petitioner, Rocco Palese.

    For the respondent, Richard W. Baker.

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At the time the case came on for a hearing it was found that the petitioner had died on May 10th, 1927, leaving no dependents, and therefore the case resolved itself into the question as to whether or not the petitioner’s estate was entitled to temporary compensation up to the time of his death. The respondent denied that the condition of the petitioner was due to an accident sustained while working for the respondent, and after considerable discussion it was agreed between the attorneys that the case be settled by a payment by the respondent to the estate of the petitioner of $600 by way of compensation for temporary disability, and further, that the respondent pay to the attorney for the petitioner a! counsel fee of $100, and the deputy commissioner was asked to approve this compromise.

After reviewing the facts in this case, I hereby approve the compromise and order that the respondent pay to the estate of the petitioner compensation for temporary disability in the amount of $600, and further, a $100 counsel fee to the attorney for the petitioner.

Charles E. Corbin, Deputy Commissioner.


author: Katzenbach, J.

text:
    CHARLES BERGER, TRADING AS BERGER FERTILIZER AND CHEMICAL COMPANY, PLAINTIFF, v. THOMAS DARMINIO, DEFENDANT.
    Decided September 11, 1928.
    For the motion, Edward R. Deibert.

    Contra, Philip Wendkos.

   Katzenbach, J.

The plaintiff trades as the Berger Fertilizer and Chemical Company. In the year 1925 and 1926 he sold to Thomas Darminio fertilizer which was used upon his farm. The account was not paid and was put in the hands of an attorney for collection, who instituted in behalf of the plaintiff an action against the defendant upon the book account. The defendant interviewed the plaintiff. The plaintiff agreed to accept a promissory note for the amount of the debt, payable on August 1st, 1927. This note was made out in the office of the attorney and signed by the defendant. The affidavit of the clerk in the office of the attorney for the plaintiff states that the defendant advised the attorney at the time of the delivery of the note that the fertilizer was unsatisfactory and that he had lost money in the year 1926, but he did not want any suit against him and therefore gave the note. The proceedings in this suit were discontinued. The note was not paid at maturity. Suit was instituted upon the note. Judgment by default was taken but the judgment was opened by consent of the attorney for the plaintiff and an answer and counter-claim w'ere filed by the defendant. These pleadings set up that the fertilizer was not of the purported analysis and that the defendant had been damaged thereby. The present motion is to strike out this answer and counter-claim. The grounds for the motion are that they are sham and frivolous. They are not frivolous. The question turns upon whether the defenses are sham defenses.

The suit is between the maker and the payee of the note, and the defendant is entitled, therefore, to make the same defenses as if the suit were upon the book account. While not particularly impressed with the defenses set up, the defendant has made an affidavit that the fertilizer was not up to the warranty given by the agent of the plaintiff who sold it to the defendant and that at the time of the delivery of the note the defendant made it distinctly understood that the fertilizer was not as represented. There is not sufficient evidence that the note was given by way of compromise and the defenses now set up waived. I am, therefore, of the opinion that the defendant is entitled to have his testimony passed upon by a jury. I shall, therefore, permit the answer and-counter-claim to stand.

This view results in a denial of the motion to strike out the defenses and for the entering of judgment final.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HOMER M. DAVIS, PETITIONER, v. RICHARD E. O’DEA—O’DEA TEMPLE OF MUSIC, RESPONDENT.
   It appears by the petition of Homer M. Davis that his son, Harold Willard Davis, on the 12th day of May, 1927, was engaged as a chief radio operator for the respondent at Paterson, New Jersey, and on that day was changing the radio station of the respondent from a lower power to a higher power station, and while so engaged, and changing connections on live wires, he became electrocuted and died immediately.

It appears from the evidence that the deceased, at the time of his employment, and immediately prior to his death, was a robust youth, twenty-two years of age, and was living with his father, mother and sister at 457 East Thirty-fifth street, in the city of Paterson.

The petitioner now comes to this bureau in behalf of himself and wife, and claims compensation on the theory of dependency under the statute in such ease made and provided, but the respondent, while not denying liability, denies in ioto that there was any dependency by the petitioner or his wife.

On formal hearing, it appeared from the testimony that the deceased made $44 a week regularly, and contributed towards the home $35 a week; that he bought his own clothing and was getting two meals a day home, and also lodging. There was also testimony that the father’s earnings and the son’s earnings were put in the common household fund, together with that of a sister, towards the support of the entire family of four.

The mother and sister testified that she purchased from the household fund the clothing for herself, her husband and her daughter, who is twenty-one years of age. That she also used the moneys for paying off the mortgage on the house which amounted to $75 a month, and which house was purchased about six months before the death of the deceased. That she also paid the taxes from this fund, which amounted to $193 a year. That she also paid water bills, which amounted to $12 a year, and that she also paid the telephone bills and also the sum of $54 a month interest on the first and second mortgages, which amounted together in the sum of $9,000.

The evidence showed that the house cost the petitioner and his wife $10,500, upon which there was a first mortgage of $5,000, and a second mortgage of $4,000, and that immediately subsequent to the death of the deceased, the petitioner and his wife, through necessity, • sold the house for $9,300, because they were unable to continue the upkeep of such home, due to the failure of the weekly earnings of the deceased, to be contributed towards the common household fund.

I am satisfied that there is ample evidence that the cost of lodging and food given to the deceased, by his mother, amounted to no more than $15 a week, and that his mother actually was dependent upon his earnings, but I am not satisfied that the petitioner is actually dependent upon the earnings of the deceased, and the dependency in his case will be denied.

The petitioner and his family are entitled to maintain that station of life whiqh they were accustomed to, and which was warranted by the good income which was derived from the pool of money to which the various members of the family contributed weekly, although it cannot be said that there is actual dependency where the money or part of the money derived from the common fund is used for an investment, but the facts in this case did not show any investment, and the $75 a month which was paid by the mother of the deceased towards pajdng off the mortgages only amounted to the payment of rent, and could not be called an investment, and it was also proven that the family of the deceased had no bank account, and that they lived in that station of life which they could afford, from the income derived from the common household fund.

The family protection involved in such saving or such expenditure was reasonable according to the station of life of the claimant, and will be held to be legitimate family expenditures. They are not the savings for investment, but rather the provision of thrift for the family protection against the contingencies of death, ill-health, lessening earning power, or lessening work to be had, and the evidence in the case does not show that the savings went beyond these reasonable bounds, hut were relatively small compared to the income derived weekly.

I will therefore order that the respondent pay to the dependent, Addie I. Davis, the sum of $150 as funeral expenses, and compensation for three hundred weeks at the rate of $7 a week, being thirty-five per cent, of $20, which I find is supported by the evidence submitted, and to which sum this dependent actually depended upon weekly; and that the sum of $224 be paid to said dependent, in a lump sum, being thirty-two weeks since the date of death of the deceased, and which is now due; and that the respondent pay to Louis C. Friedman, attorney for the petitioner, $100 as a counsel fee, and the dependent, Addie I. Davis, pay $50 as a counsel fee to her attorney.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE MARTIN, PETITIONER, v. NORTHERN CONTRACTING COMPANY, RESPONDENT.
   A petition having been filed in the above-stated matter praying for compensation to which the petitioner might be entitled by virtue of the terms and provisions of an act of the legislature of the - State of New Jersey, entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule for compensation, and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several supplements thereto and amendments thereof; and the time and place for the hearing of the petition having been fixed, and it appearing to the court that the said petition and notice of the time and place of said hearing were duly served upon the respondent, and an answer having been filed by the respondent, and the petitioner and respondent having appeared before Deputy Commissioner Charles E. Corbin at the compensation bureau, No. 571 Jersey avenue, Jersey City, New Jersey, the petitioner being represented by Messrs. Meehan Brothers and the respondent being represented by Messrs. Lindabury, Depue & Eaulks;' and it appearing that prior to the time of the filing of the petition now under consideration the petitioner filed a petition on or about April 4th, 1927, and upon answer being duly filed thereto a hearing was had on May 9th and May 20th, 1927, at which time it appeared and was found by this court and a determination thereafter on July 5th, 1927, entered that the petitioner, on May 10th, 1926, in the course of his employment and in an accident arising therefrom, sustained an injury to his head from-which he suffered a temporary disability of seven weeks and a five per cent, partial permanent disability; that the petitioner was actually only paid compensation for temporary disability in the sum of $24.29, the last payment on account of which being made on June 7th, 1926. No payments were made for permanent disability. In the meantime a claim for damages was made by the petitioner against the Pennsylvania Railroad Compaq, a third party, on account of the injuries for which he may have been entitled to be paid compensation, which said claim was settled by said company on December 16th, 1926, by the payment to the petitioner of the sum of $1,000. This payment was far in excess of any compensation which could be awarded petitioner under the proof offered at the hearings above mentioned, and respondent was thereby relieved from the pa3rment of any compensation for the injuries so received by petitioner. Such a payment in settlement cannot be considered as a payment of compensation under the Workmen’s Compensation act.

The present petition was filed July 19th, 1927, or more than one year after the last payment of compensation which was made on June 7th, 1926. It alleges that petitioner is suffering an increased disability over that found in the determination of July 5th, 1927. As no award to pay compensation was made in the determination of July 5th, 1927, the petitioner cannot review it under section 21 (f) of the Workmen’s Compensation act. Since it was filed more than a year after thé accident occurred and also more than a year after the last compensation was paid to petitioner by respondent, which is a condition precedent to the right of the bureau to entertain jurisdiction as required by section 23 (h) of the act, this court, under the authority of Lusczy v. Seaboard By-Products Coke Co., 101 N. J. L. 170, has no jurisdiction in the matter.

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Charles E. Corbin, Deputy Commissioner.