author: Giordano, C. P. J.

text:
    Monmouth County Common Pleas Court.
    LILLIAN COATES, PETITIONER-APPELLEE, v. WARREN HOTEL, RESPONDENT-APPELLANT.
    Decided June 7, 1940.
    For the petitioner-appellee, Levinson & Levinson.

    For the respondent-appellant, Wilbur A. Elevens.

   Giordano, C. P. J.

This matter come on before me on an appeal from a decision of the Workmen’s Compensation Bureau, wherein petitioner was awarded compensation of 100 per cent, total permanent disability and her compensation rate fixed on wages, room and board and tips received as a waitress in the employ of respondent.

The petitioner-appellee while employed as a waitress by respondent had an accident on August 17th, 1938, while in the course of her employment by falling on a wet floor, causing a fracture of the hip resulting in complete loss of function from her hip down on the right side. Temporary compensation at the rate of $8.46 per week was paid up to and including November 17th, 1939.

The issues involved in this appeal are the justification of the bureau in taking into consideration the tips received by petitioner as a waitress in fixing the rate of wages under the meaning of the Workmen’s Compensation act, and the justification of the bureau in awarding to the petitioner under the proofs in the case an award of 100 per cent, total disability.

Prom the indisputable facts, the petitioner agreed with the respondent-appellant to work for the respondent-appellant for the sum of $15 per month with room and board. This was the contract of employment. There are no facts from which any inference or inferences can be drawn to the contrary. The contract of employment speaks for itself; it is neither vague nor ambiguous, and, therefore, any award for compensation to be made should be on the basis of the contract of employment. The tips received by the petitioner were gratuities, and were so intended. They were no part of the contract of employment, and, therefore, should not be included in computing the wage rate of the petitioner.

R. S. 34:15-37 (N. J. S. A. 34:15-37) definitely excludes the consideration of tips:

“Wages when used in this chapter should be construed to mean the money rate at which the services rendered is recompensed under the contract of hire in force at the time of the accident, and shall not include gratuities received from the employer or others.
“Board and lodging when furnished by the employer as part of the wages should be included and valued at $5 per week, unless the money value of such advantages shall have been otherwise fixed by the parties at the time of the hire.”

The foregoing excerpt from the statute controls the first phase of the situation before me and dispenses with the question on appeal concerning the inclusion or exclusion of the tips as part of the wages earned by this petitioner.

Compensation, therefore, should be awarded on the basis of her wages which amounted to $15 per month, together with room and board, which in accordance with the statute when the rate has not been fixed by contract, shall be $5 per week.

The other question, which I must pass upon is whether or not the injuries received by this petitioner while in the course of her employment has totally disabled her, or whether, as contended by the respondent-appellant, she is disabled only to the extent of fifty per cent.

As a result of the accident in question petitioner now suffers from an ununited fracture of the neck of the right femur, there being no bony union of the same, partial absorption of the head of the femur, loss of motion of the leg joints, atrophy and loss of muscle tone, shortening of the leg one and three-quarters inches and complete loss of function of this member requiring the use of crutches to get about.

The evidence further discloses that the petitioner complains of loss of weight since the accident, inability to sleep, leg aches all the time especially at night, the necessity to use crutches to get about at all, unable to go up and down stairs, extremely nervous, and inability to do any of the ordinary duties of a housekeeper.

Dr. Cuccinelli, who testified on respondent’s behalf, admitted that the petitioner’s power of locomotion is practically nil.

The proofs disclose a pre-existing condition characterized as myocarditis, hypertension, enlarged thyroid gland, hypertrophic arthritis of the spine. These conditions were admitted by petitioner’s medical witnesses to have pre-existed the accident but claim that they were not functionally disabling. and definitely contend that this accident aggravated such pre-existing conditions. The petitioner, who is fifty-five years of age, testified that she had always enjoyed good health before the accident, was never sick before and had worked as a waitress for a period of twenty years preceding the accident.

Despondent-appellant relies upon R. S. 34:15-12b (N. J. S. A. 34:15-12b), which states that the loss of any two members shall be total disability, and argues that obviously from the proofs the petitioner has not suffered the loss of two members as a result of the accident, and, therefore, such disability falls short of total permanent disability, and that the compensation should be limited according to the schedule.

The court does not agree, and cannot agree, under the proofs before it, to such a narrow interpretation and application of the statute in question. The Workmen’s Compensation act is to be treated as a remedial statute and should be liberally construed like other statutes of that character.

In all cases of this type, where the usefulness of a member, or where any physical function is permanently impaired, the compensation shall bear such relation to the amounts stated in the schedule as indicated in the statute referred to, as the disability bears to those produced in the accident and the injuries named in the schedule. If it were to be otherwise, it would be too literal an application of the letter of the statute and quite inconsistent with its spirit. That the act is remedial in character appears by the entire trend of decisions in this state. It will suffice for present purposes to cite: Jensen v. F. W. Woolworth, 92 N. J. L. 529; 106 Atl. Rep. 808, a very recent decision of the Court of Errors and Appeals.

The purpose of the Workmen’s Compensation act is to provide compensation for personal injuries out of and in the course of employment, and after setting forth schedules of compensation for temporary and permanent disability, it provides: “in all lesser and other eases involving permanent loss” proportionate compensation shall be made. Therefore, in the ascertainment of the amount of compensatory disability suffered by an injured employe, allowance for disfigurement in addition to the strictly functional loss ensuing from the injury is within both the letter and-spirit of the statute.

While the compensation afforded by the Workmen’s Compensation act is based upon and measured by the workmen’s earnings, the test of the liability is not the immediate impairment of earning power, but is rather the loss ensuing from the personal injury which detracts from the former efficiency of the workmen’s body or its members in the ordinary pursuits of life.

The case of Everhart v. Newark Cleaning and Dyeing Co., 119 N. J. L. 108; 194 Atl. Rep. 294, lays down the .principle of law which must be applied in the present instance. The case of Bateman Manufacturing Co. v. Smith, 85 N. J. L. 409; 89 Atl. Rep. 979, relied upon by the respondent is not applicable to the situation.

The evidence overwhelmingly satisfies this court that the injuries received by this petitioner are directly attributable to this accident, and that as a result thereof she has been rendered functionally useless and permanently disabled to the extent of 100 per cent.

The award of compensation of 100 per cent, permanent disability is sustained and that part of the award based upon tips is vacated. All other awards made in this matter are affirmed.


source: Caselaw Access Project

author: Jayne, C. C. J.

license: Public Domain

text:
    Atlantic County Circuit Court.
    KATHERINE CRAMER, ADMINISTRATRIX OF ESTATE OF SARAH FEDNER, DECEASED, PLAINTIFF, v. THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY OF BOSTON, MASSACHUSETTS, DEPENDANT.
    Decided May 17, 1940.
    For the plaintiff, Joseph B. Kauffman.

    For the defendant, Cassman & Gottlieb (Bilis L. Gottlieb).

   Jayne, C. C. J.

This action rested fundamentally upon two policies of insurance on the life of one Sarah Fedner, now deceased. The defendant acknowledged its obligation to pay to the estate of the deceased the face amount of the policies. The controversy related to the claim of the plaintiff for additional sums of equal amount, commonly known as double indemnity or accidental death benefits. The factual question was whether the insured sustained bodily injuries solely through external, violent and accidental means which resulted directly and independently of all other causes in her death. The jury resolved this query in the affirmative and rendered a verdict in favor of the plaintiff.

The defendant has a rule to show cause why this verdict should not be annulled and a new trial granted.

True, the burden reposed upon the plaintiff to prove the requisite factual circumstances comprehended by the provisions of the policies. Travelers’ Insurance Co. v. McConkey, 127 U. S. 661, 668; 8 S. Ct. 1360; 32 L. Ed. 308; Kresse v. Metropolitan Life Insurance Co., 111 N. J. L. 474; 168 Atl. Rep. 634; Kennedy v. U. S. Fidelity, &c., Co., 113 N. J. L. 431; 174 Atl. Rep. 531.

Therefore in the consideration of the present application, the interpretation and accepted meaning of the pertinent provisions of the policies become of primary interest. The expression “accidental means” has been employed in certain policies of insurance for many years. The word “accidental” is defined in Webster’s Dictionary as “happening by chance, or unexpectedly; taking place not according to the usual course of things; casual; fortuitous; as an accidental visit.” 6 Cooley’s Briefs on Insurance (2d ed.) 5234, defines accidental means as follows: “Strictly speaking, a means is accidental perhaps only when disassociated from any human agency, but this narrow interpretation is not recognized in the law of accident insurance. * * * An effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means.” Definitions of like signification are supplied in Couch, Insurance, § 1137; Vance, Insurance 871; 1 C. J. 425, 427.

It is noticeable that the courts of our sister states and our federal courts have been called upon more frequently to interpret the expression “accidental means.” The case to which most of such authorities refer, is U. S. Mutual Accident Association v. Barry, 131 U. S. 100; 9 S. Ct. 755, 762; 33 L. Ed. 60, 67, wherein tiie following instructions were appproved : “If a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means.”

nevertheless, an examination of the reported cases reveals that from this statement of the law two somewhat diverse views have developed. The one procession of cases hold that, where an unusual or unexpected result occurs by reason of the commission of an intentional act by the insured, where no mischance, slip or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used were accidental, and it is not enough that the result may be unusual, unexpected or unforeseen. This view is lucidly expressed in Kimball v. Massachusetts Accident Co., 44 R. I. 264; 117 Atl. Rep. 228, 230; 24 A. L. R. 726. It is said that accidental means and accidental cause are synonymous expressions. Caldwell v. Travelers Insurance Co., 305 Mo. 619 ; 267 S. W. Rep. 907; 39 A. L. R. 56, 80; Bryant v. Continental Casualty Co., 107 Tex. 582; 182 S. W. Rep. 673; L. R. A. 1916E, 945, 949. The distinction is made between an accidental death and a death caused by accidental means. See Olinshy v. Railway Mail Association, 182 Cal. 669; 189 Pac. Rep. 835, 837; 14 A. L. R. 784, 786. Other cases are: Fane v. National Association, Railway Postal Clerks, 197 App. Div. 145; 188 N. Y. S. 222, 223; Husbands v. Indiana Travelers Accident Association, 194 Ind. 586; 133 N. E. Rep. 130; 35 A. L. R. 1184; Fulton v. Metropolitan Casualty Co., 19 Ga. App. 127; 91 S. E. Rep. 228, 229; Curry v. Federal Life Insurance Co., 221 Mo. App. 626; 287 S. W. Rep. 1053; Smith v. Travelers Insurance Co., 219 Mass. 147, 149; 106 N. E. Rep. 607; L. R. A. 1915B, 812; Cobb v. Preferred Mutual Accident Association, 96 Ga. 818; 22 S. E. Rep. 976; Whitehead v. Railway Mail Association (C. C. A.), 269 Fed. Rep. 25; certiorari denied, 253 U. S. 570; 41 S. Ct. 375; 65 L. Ed. 791; Southard v. Railway Pass. Assur. Co., 34 Conn. 574, 576, 578; Fed. Cas. No. 13, 182; Stone v. Fidelity and Casualty Co., 133 Tenn. 672; 182 S. W. Rep. 252; L. R. A.1916D, 536, 538; Ann. Cas. 1917A, 86; Carswell v. Railway Mail Association (C. C. A.), 8 Fed. Rep. (2d) 612; Martin v. Interstate Business Men’s Accident Association, 187 Iowa 869; 174 N. W. Rep. 577, 578; Appel’s Case, 86 App. Div. 83; 83 N. Y. S. 238; Metropolitan Life Insurance Co. v. Landsman (Del. Super.), 165 Atl. Rep. 563, 567; Shanberg v. Fidelity and Casualty Co. (C. C. A.), 158 Fed. Rep. 1, 5; 19 L. R. A. (N. S.) 1206; Pledger v. Business Men’s Accident Association (Tex. Civ. App.), 197 S. W. Rep. 889, 891; Rock v. Travelers Insurance Co., 172 Cal. 462; 156 Pac. Rep. 1029; L. R. A. 1916E, 1196; Feder v. Iowa State Trav. Men’s Association, 107 Iowa 538; 78 N. W. Rep. 252; 43 L. R. A. 693, 695; 70 Am. St. Rep. 212; New Amsterdam Casualty Co. v. Johnson, 91 Ohio St. 155; 110 N. E. Rep. 475; L. R. A. 1916B, 1018; Lehman v. Great Western Accident Association, 155 Iowa 737; 133 N. W. Rep. 752; 42 L. R. A. (N. S.) 562, 567; Ogilvie v. Aetna Life Insurance Co., 189 Cal. 406; 209 Pac. Rep. 26; 26 A. L. R. 116, 120; Clarkson v. Union Mutual Casualty Co., 201 Iowa 1249; 207 N. W. Rep. 132, 133; Smouse v. Iowa Trav. Men’s Association, 118 Iowa 436; 92 N. W. Rep. 53, 54.

The other column of cases hold that, where injury or death is the unusual, unexpected or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, mischance, or other unusual or extraordinary circumstance in the act or event which caused such injury or death. Comprehensive statements of this persuasion may be discovered in Western Commercial Travelers Association v. Smith (C. C. A.), 85 Fed. Rep. 401, 405; 40 L. R. A. 653, 656; Lickleider v. Iowa Traveling Men’s Association, 184 Iowa 123; 166 N. W. Rep. 363, 366; 168 N. W. Rep. 884; 3 A. L. R. 1295, 1300, 1301. Compare, however, with the foregoing citations the following cases from the same state: Lehman v. Great Western Acci dent Association, 155 Iowa 737; 133 N. W. Rep. 752, 753; 42 L. R. A. (N. S.) 563; Carnes v. Iowa State, &c., Association, 106 Iowa 281; 76 N. W. Rep. 683; 68 Am. St. Rep. 306. Many eases may be taken from the reports which seem to hold that “accidental means” simply implies “means” producing a result which is not the natural and probable consequence of such means. The following citations are illustrative : Mchaffey v. Provident Life and Accident Insurance Co., 205 N. C. 701; 172 S. E. Rep. 331, 333; Losleben v. California State Life Insurance Co., 133 Cal. App. 550; 24 Pac. Rep. (2d) 825, 826; Robinson v. U. S. Health and Accident Insurance Co., 192 Ill. App. 475, 477, 478; Fidelity and Casualty Co. v. Stacey’s Ex’r (C. C. A.), 143 Fed. Rep. 271; 5 L. R. A. (N. S.) 657, 661; 6 Ann. Cas. 955; Horan v. Prudential Insurance Co., 104 Pa. Super. 474; 159 Atl. Rep. 69, 70; Gohlke v. Hawkeye Commercial Men’s Association, 198 Iowa 144; 197 N. W. Rep. 1004; 35 A. L. R. 1177, 1183; Carter v. Standard Accident Insurance Co., 65 Utah 465; 238 Pac. Rep. 259; 41 A. L. R. 1495, 1518, 1519; Hodgson v. Preferred Accident Insurance Co., 100 Misc. 155; 165 N. Y. S. 293, 297; Inter-Ocean Casualty Co. v. Jordan (1933), 227 Ala. 383; 150 So. Rep. 147, 148; Horsfall v. Pacific Mutual Life Insurance Co., 32 Wash. 132, 135; 72 Pac. Rep. 1028; 63 L. R. A. 425; 98 Am. St. Rep. 846; New York Life Insurance Co. v. Gustafson (C. C. A.) 55 Fed. Rep. (2d) 236, 237; 82 A. L. R. 729; Young v. Railway Mail Association, 126 Mo. App. 325; 103 S. W. Rep. 557, 563; Moutzoukos v. Mutual Ben. Association, 69 Utah 309; 254 Pac. Rep. 1005, 1007, 1008; Aetna Life Insurance Co. v. Brand (C. C. A.), 265 Fed. Rep. 6; 13 A. L. R. 657, 660; certiorari denied, 253 U. S. 496; 40 S. Ct. 587; 64 L. Ed. 1031; Schleicher v. General Accident, &c., Corp., 240 Ill. App. 247, 253; Horton v. Travelers Insurance Co., 45 Cal. App. 462; 187 Pac. Rep. 1070, 1071; Mutual Life Insurance Co. v. Dodge (C. C. A.), 11 Fed. Rep. (2d) 486; 59 A. L. R. 1290; Continental Casualty Co. v. Willis (C. C. A.), 28 Fed. Rep. (2d) 707, 709; 61 A. L. R. 1069; Townsend v. Commercial Travelers Accident Association, 231 N. Y. 148; 131 N. E. Rep. 871; 17 A. L. R. 1001, 1004; Woods v. Provident, &c., Co., 240 Ky. 398; 42 S. W. Rep. (2d) 499, 501; Zurich General Accident, &c., Co., v. Flickinger (C. C. A.), 33 Fed. Rep. (2d) 853, 854; 68 A. L. R. 161; Grosvenor v. Fidelity and Casualty Co., 102 Neb. 629; 168 N. W. Rep. 596, 597.

Indeed there are cases which hold that death having been caused through external and violent means, it will be presumed that the death was caused by accidental means. Baciocco v. Prudential Insurance Company of America, 22 Fed. Rep. (2d) 700, 702; affirmed, 29 Id. 966; certiorari denied, 279 U. S. 854; Standard Life and Accident Insurance Co. v. Thornton (C. C. A.), 100 Fed. Rep. 582; Preferred Accident Insurance Co. v. Fielding, 35 Colo. 19; 83 Pac. Rep. 1013; 9 Ann. Cas. 916; Fort Worth Mutual Benevolent Association v. Jennings (Tex. Civ. App.), 283 S. W. Rep. 910; Buckley v. Massachusetts Bonding and Insurance Co., 113 Wash. 13; 192 Pac. Rep. 924; Postler v. Travelers Insurance Co., 173 Cal. 1; 158 Pac. Rep. 1022; Withers v. Pacific Mutual Life Insurance Co., 58 Mont. 485; 193 Pac. Rep. 566; Watkins v. Reliance Life Insurance Co., 152 Ark. 12; 238 S. W. Rep. 10; Aetna Life Insurance Co., v. Lillie, 146 Ark. 70; 225 S. W. Rep. 298.

In our own state no such presumption is recognized. Kresse v. Metropolitan Life Insurance Co., supra. The existence of such a presumption is also denied in other jurisdictions. Watkins v. Prudential Insurance Co., 315 Pa. 497; 173 Atl. Rep. 644; 95 A. L. R. 869; Grosvenor v. Fidelity and Casualty Co., supra; Merrett v. Preferred Masonic Mutual Accident Association of America, 98 Mich. 338; 57 N. W. Rep. 169; Farmers’ Loan and Trust Co. v. Siefke, 144 N. Y. 354; 39 N. E. Rep. 358, 359; Johns v. Northwestern Mutual Relief Association, 90 Wis. 332; 63 N. W. Rep. 276, 277; 41 L. R. A. 587; Keefer v. Pacific Mutual Life Insurance Co., 201 Pa. 448; 51 Atl. Rep. 366, 367; 88 Am. St. Rep. 822; Hill v. Central Accident Insurance Co., 209 Pa. 632; 59 Atl. Rep. 262, 263.

Mr. Justice Cardozo remarked in his dissenting opinion in Landress v. Phoenix Mutual Life Insurance Co., 291 U. S. 491; 54 S. Ct. 461, 463; 78 L. Ed. 934; 90 A. L. R. 1382:

“The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.”

The definition of “accidental means” composed in the Barry case, supra, 131 U. S. 100, 121, has been endorsed by our Court of Errors and Appeals. Lower r. Metropolitan Life Insurance Co., 111 N. J. L. 426; 168 Atl. Rep. 592. The meaning of the Barry case seems now to hare been rendered indubitable by the decision in Landress v. Phoenix Mutual Life Insurance Co., supra., 291 U. S. 491. Mr. Justice Stone, speaking for the court stated : “But it is not enough, to establish liability under these clauses, that the death or injury was accidental in the understanding of the average man—that the result of the exposure ‘was something unforeseen, unsuspected, extraordinary, an unlooked for mishap and so an accident,’ * * * for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is not against an accidental result. The stipulated payments are to be made only if the bodily injury, though unforeseen, is effected by means which are external and accidental.” The case related to one who suffered a sunstroke while playing golf and the court held that the death of the insured did not result from accidental means. The conflict in authority is well illustrated in cases where death or injury has occurred from sunstroke or heat prostration. Lower v. Metropolitan Life Insurance Co., supra; Continental Casualty Co. v. Pittman, 145 Ga. 641; 89 S. E. Rep. 716; Pack v. Prudential Casualty Co., 170 Ky. 47; 185 S. W. Rep. 496; L. R. A. 1916E, 952, 956; Bryant v. Continental Casualty Co., supra; Continental Casualty Co. v. Ciarle, 70 Okl. 187; 173 Pac. Rep. 453; L. R. A. 1918F, 1007, 1011; Elsey v. Fidelity and Casualty Co., 187 Ind. 447; 120 N. E. Rep. 42; L. R. A. 1918F, 646, 648; Richards r. Standard Accident Insurance Co., 58 Utah 622; 200 Pac. Rep. 1017; 17 A. L. R. 1183; Hawkinson v. Order of United Commercial Travelers (Tex. Civ. App.), 20 S. W. Rep. (2d) 101; Higgins v. Midland Casualty Co., 281 Ill. 431, 439; 118 N. E. Rep. 11; U. S. Fidelity, &c., Co. v. Hoflinger, 185 Ark. 50; 45 S. W. Rep. (2d) 866, 867; Continental Casualty Co. v. Bruden, 178 Ark. 683; 11 S. W. Rep. (2d) 493; 61 A. L. R. 1192, 1195; Annotations 7 A. L. R. 1132; 17 A. L. R. 1183; 61 A. L. R. 1197.

However, the distinction between accidental means and accidental result has been generally recognized in consequence of the chosen language of the policies.

“In determining that an injury occurred by ‘accidental means,’ it should appear that the cause or means governed the result, and not the result the cause; and that, however unexpected the result might be, no recovery could be allowed under such a provision, unless there was something unexpected in the cause or means which produced the result.” Kimball v. Massachusetts Accident Co., supra.

Our own courts recognize this distinction between an injury that is accidental and one that is caused by accidental means. Lower v. Metropolitan Life Insurance Co., supra; Lawrence v. Massachusetts Bonding, &c., Co., 113 N. J. L. 265; 174 Atl. Rep. 226; Kennedy v. U. S. Fidelity, &c., Co., supra, and where the injury is the probable result of a deliberate act. Wiley v. Travelers’ Insurance Co., 119 N. J. L. 22; 194 Atl. Rep. 59.

Turning, now, to the case under review, the' evidence disclosed that the insured was engaged in preparing a quantity of chicken soup in the kitchen of her home. The liquid and other ingredients were deposited in a covered aluminum cooking pot which was placed upon the gas stove for heating and boiling. The burner beneath the container was ignited and subsequently the aluminum kettle exploded, casting the boiling soup and fragments of the pot itself about the room and upon the insured. The insured was burned.

Assuredly, this is a case where, in the act which preceded the injury, something unforeseen, unexpected, and unusual occurred which produced the injury. The insured in such circumstances sustained bodily injury (the burns) solely through external, violent and accidental means. Bodily injury is said to be a localized abnormal condition of the living body. Linnane v. Aetna Brewing Co., 91 Conn. 158, 162; 99 Atl. Rep. 507; L. R. A. 1917D, 77; King v. Travelers Insurance Co., 193 Atl. Rep. 311. The term “violent” signifies merely that a physical force, however slight, is efficient in producing a harmful result. Lower v. Metropolitan Life Insurance Co., supra; Arnstein v. Metropolitan Life Insurance Co., 196 Atl. Rep. (Pa.) 491, 493; Paul v. Travelers Insurance Co., 112 N. Y. 472; 20 N. E. Rep. 347; 3 L. R. A. 443; Paist v. Aetna Life Insurance Co., D. C., 54 Fed. Rep. (2d) 393; Thalassinos v. Massachusetts Accident Co., 84 N. H. 261; 149 Atl. Rep. 512; Lane v. Horn & Hardart Baking Co., 261 Pa. 329, 335; 104 Atl. Rep. 615; 13 A. L. R. 963.

It was incumbent upon the plaintiff to also prove that the bodily injury thus sustained resulted directly and independently of all other causes in the death of the insured. The bodily injury so occasioned must be an efficient and proximate cause of death. Kelly v. Pittsburgh Casually Co., 100 Atl. Rep. (Pa.) 494, 495.

The policies of insurance also stipulated that “No accidental Death Benefit will be paid * * * if death is caused or contributed to, directly or indirectly, or wholly or partially, by disease, or by bodily or mental infirmity.” The words “bodily infirmity” or “disease” as used in policies of insurance are construed to be practically synonymous. The term “bodily infirmity” has uniformly been taken to mean a condition of a settled and substantial character materially impairing the bodily functions and processes and not to embrace minor physical deficiencies and ailments which are frequent and common incidents of life. In Silverstein v. Metropolitan Life Insurance Co., 254 N. Y. 81; 171 N. E. Rep. 914, 915, it was laconically declared: “A policy of insurance is not accepted with the thought that its coverage is to be restricted to an Apollo or a Hercules.”

Yet, it must be realized that the stipulations embodied in the policies are restrictions on the right of redress of the insured against the insurer. The express and unambiguous terms of the policy contract cannot be ignored. Where, as here, the insured was afflicted with a disease or bodily infirmity within the meaning of the policy, the question usually arises whether the accidental injury resulted directly and independently of all other causes in the death of the insured and whether the death was “caused or contributed to, directly or indirectly, or wholly or partialy by disease or by bodily infirmity.” The plaintiff cannot recover if the cause of death is left to mere conjecture. Stauffer v. Susquehanna Collieries Co., 176 Atl. Rep. (Pa.), 740, 742.

In Runyon v. Monarch Accident Insurance Co., 108 N. J. L. 489; 158 Atl. Rep. 530, the Court of Errors and Appeals was concerned with a policy which limited the liability of the insurer to death resulting “exclusively from bodily injuries caused solely by external, violent and accidental means.” Mr. Justice Trenchard in delivering the opinion stated: “The instruction was well within the general rule that, under such a policy, if the insured, at the time of the accidental injury, was also suffering from a disease, and the disease aggravated the effects of the accident, and actively contributed to the death occasioned thereby, there can be no recovery upon the policy.”

In the recent case of Kelly v. Prudential Life Insurance Co. (1939), 334 Pa. 143; 6 Atl. Rep. (2d) 55, Mr. Justice Maxey, in ruling on similar policy provisions, approved the following charge: “The law is that if a disease, while existing, be but a condition and the accident the moving, sole and proximate cause of death, the exception in the policy will not relieve the insurer for death so caused. The fact that the physical infirmity of the victim may be a necessary con- • dition to the result does not deprive the injury of its distinction as the sole producing cause. In such case, disease and low vitality do not arise to the dignitjr of concurring causes, but, in having deprived nature of her normal power of resistance to attack, appear rather as the passive allies of the agencies set in motion by the injury * * *.” The justice continued on page 59: “It is clear that if the physical condition of the insured is merely weakened or his resistance to disease lowered by a pre-existing ailment or disease incident to advanced age, which creates a bodily condition of a passive nature not alone sufficient to cause death, this fact will not prevent recovery for death resulting from accidental means under an insurance policy providing indemnity therefor, even though death resulting indirectly from bodily or mental infirmity or disease is excluded as a risk, provided the accident sets in progress the chain of events leading directly to death.”

The phrase “resulting directly and independently of all other causes in the death” undoubtedly refers to the efficient cause of death at the time it occurs. Simply stated, it means the proximate cause. We speak of the proximate cause as being the cause that naturally and probably led to the result; the cause that in the existing conditions would be reasonably expected to produce the result; the cause which in natural and continuous sequence, unbroken by any efficient intervening cause produces the result and without which the result would not have occurred. “Proximate Cause,” “Remote Cause,” “Reasonable Interpretation” and “Intention of the Parties” are all terms that have been considered in the treatment of this subject. Many pertinent decisions are cited in Preferred Accident Insurance Company of New York v. Combs, 76 Fed. Rep. (2d) 775; Scanlan v. Metropolitan Life Insurance Co., 93 Fed. Rep. (2d) 942. To construe these accident policies too strictly would likely thwart the general object of the insurance and ultimately subserve neither the purposes of the insurers, nor the insured. To further study the views of the state courts on the general subject just discussed, see Notes 25 Mich. L. Rev. 467 and 803; 26 Ill. L. Rev. 344; 19 Minn. L. Rev. 244.

Since the insured in the present case was affected with arteriosclerosis, it is not inappropriate to note that pertinent decisions may be found in the annotations in 3 A. L. R. 1304 and 82 A. L. R. 1411.

Now in the case at hand, the defendant protests that the determination of the jury relative to the cause of the death of the insured was manifestly discordant with the weight of the evidence. This is the most imposing point in support of the application for a new trial. The evidence concerning this branch of the case has been intently examined. Some of the significant facts were not in dispute. The mishap occurred on February 12th, 1939. The insured was discharged from the hospital on March 21st, 1939, and died on April 15th, 1939. The certificate of death signed by Dr. Samuel A. Shuster who attended the insured immediately before her death evinces that the cause of death was “cerebral hemorrhage (apoplexy) arteriosclerosis, contributory cause.” The proof of claim for normal death benefits addressed to the defendant under date of April 15th, 1939, states the cause of death to have been “cerebral hemorrhage (apoplexy) and the contributing cause of death (arteriosclerosis and hypertension).” The claim for accidental death benefits under date of May 1st, 1939, declares cerebral hemorrhage to have caused the death of the insured and a contributory cause of death is therein said to have been “accidental burns (of face and arms).” Notwithstanding the filing of such proofs of death the plaintiff was not estopped from proving, if able, that the death was, in fact, caused by accidental means. Home Benefit Association v. Sargent, 142 U. S. 691; 12 S. Ct. 332; 35 L. Ed. 1160; Pythias’ Knights’ Supreme Lodge v. Beck, 181 U. S. 49; 21 S. Ct. 532; 45 L. Ed. 741; Jensen v. Continental Life Insurance Co., 28 Fed. Rep. (2d) 545; Annotations, 93 A. L. R. 1342.

The death certificate and proofs of death, signed by Dr. Shuster, are, however, expository of his conclusion at the time of the demise of the insured. After claim was presented to the defendant for accidental death benefits, Dr. Shuster addressed a letter to the defendant in which he wrote “In my opinion, there is no question but that the burns which the deceased suffered were a definite contributing cause to her death.” When, at the trial, he was given a history of all relevant antecedent conditions and events as an hypothesis and asked to express an opinion concerning the cause of death, he replied “I am still not certain.” Such perplexity had no probative force.

The plaintiff leans chiefly upon the testimony of the expert witness, Dr. Isaac Stalberg, who expressed the opinion that the accidental burns caused the death of the insured, directly and independently of all other causes. An hypothetical question having been propounded, he was asked: “Q. Can you say with reasonable certainty what the cause of death was? A. With absolute certainty. Q. What in your opinion was the cause of death? A. In my opinion she died as a result of the burn or scald wounds that she received on February 12th or 15th, whatever the date is.” The following explanatory answers were given on cross-examination: “A. I said that whole condition, the chart and the suffering she underwent, and I know the end results of burns. A man or a woman can suffer only a certain amount of pain, whether mental, physical or otherwise, then eventually something happens and they die. They get well and they die, too, and it is logical to conclude, T mean theoretically, that the woman died as the result of the burns.” . “A. The end result of the burns, the burns inflicted on her body destroyed the tissue, destroyed the nerve ends and gave her the pain, and then I believe, too, that it may be that an emboli broke through.” “A. He came in there and she had the symptoms of what we call an apoplexy or stroke. The end had come. In all probability that can come from one of several things, from an emboli breaking loose from the wound, from a thrombus or from some end defect in the blood that we get in burns, or from the bursting of one of the vessels in the brain. All of these things are conjecture. I can believe one thing, Dr. Shuster another thing and Dr. Johnson another and we may all be right or wrong, but we are giving our honest opinion.” “A. The pain of mental suffering, the breaking down of her vascular system, the possible lodging of an emboli or aortal thrombus and the weakening down of the whole condition after six, seven or eight weeks of suffering.” “A. If she had died from a heart condition she had many contributing factors in the last quarter century that would have contributed toward it. I go by the study of the whole case, by a conception of the entire situation, and I say honestly and sincerely that that whole heart condition had absolutely nothing to do with her death in April when she died.”

The witnesses, Dr. Carl A. Surran, Dr. Y. Earl Johnson and Dr. Eoland T. Hellebranth were in discord with Dr. Stalberg on this aspect of the case. Dr. Surran was summoned to treat the insured in June, 1934. He resolved that she was then suffering from auricular fibrillation and decompensation of the heart. Her breathing was heavy, her feet and face were swollen, and she was immediately taken to the hospital. A diagnosis of auricular fibrillation and chronic myocarditis was there confirmed. The patient remained at the hospital eleven days. For some period thereafter digitalis was administered to her. Dr. Surran is the official physician and surgeon for the members of the Atlantic City fire department and has had an extensive experience in the observance and professional treatment of bodily burns from those of first degree to carbonization. It was his conviction that the burns did not in anywise cause the cerebral hemorrhage from which, in his judgment, the insured died.

Dr. Hellebranth treated the insured for coronary sclerosis and generalized hardening of the arteries from August, 1935, to September, 1938. He asserted that this infirmity was serious and progressive and that coronary thrombosis or cerebral hemorrhage were results to be reasonably anticipated. Incidentally, he was called to the home of the insured to consult with Dr. Shuster on April 15th, 1939, where he again was afforded an opportunity to observe the insured’s physical condition. He expressed the conclusion that the cause of death was a cerebral hemorrhage superinduced by arteriosclerosis involving the so-called basilar artery.

This testimony was materially aggrandized by the statements of Dr. Johnson who is chief in surgery at the Atlantic City Hospital and who there medically treated the insured for her accidental injuries. The insured was admitted to the hospital on February 12th, 1939, and discharged on March 21st, 1939. She thereafter occasionally consulted Dr. Johnson at his office up to a few days before her death. While at the hospital on this occasion it was again ascertained that she was also suffering from auricular fibrillation, a chronic cardiac disturbance. The following excerpts epitomize the testimony of Dr. Johnson: "Q. Doctor, what is the dangerous period in burns? A. The first fortj'-eight hours and during the tenth day to the twenty-first. During the first forty-eight hours from shock and the absorption of toxins, and from the tenth to the twenty-first day as a result of absorption from infection of the burn. If they get through those two periods we are not concerned about the question of life and death. Q. She did get over those periods? A. She was discharged the thirty-seventh day. Q. From your knowledge of the case, would you give us your opinion as to whether or not these burns which Mrs. Fedner suffered and for which you treated her resulted directly and independently of any other cause in her death? A. They did not. Q. Why do you say that, doctor? A. To start with, on April 11th, when I saw Mrs. Fedner last her burns were practically entirely healed. She had just a few little small areas, I think about three about the size of my small linger nail, that hadn’t completely epithelialized over. I can’t quite see how a burn that has practically recovered would cause a person to die. One might bring up the question of toxemia from that burn. It is over then. From the standpoint of infection, all right, she has a little bit of infection on each one of those little small areas, but she is not getting absorption from that to make anybody sick, particularly kill him. The only other possibility one would think of is embolus. Embolus can originate from a burn. The embolus does not originate from a practically healed burn, it originates from an infected burn at a time when the emboli, or at least when the infection has caused a certain amount of involvement of the veins in that region, they get infection of the veins and thereby have a reason for an embolus dislodging itself. If an embolus came from the arms or the legs of the body it doesn’t go to the brain, it goes to the lung, because it has to go through the right side of the heart. There is no other way to get from the right side of the heart to the brain. Most of the emboli that cause sudden death, that lodge in the brain, come from the heart itself, and it has to come from the left side, not the right side. So therefore I say that for all those reasons, that the burn did not cause her to die.”

Where the testimony of expert witnesses substantially comprises the evidence concerning an essential controversial issue, the court, upon an application for a new trial upon the ground that the verdict is against the weight of the pertinent evidence, must evaluate the substance and credibility of such evidence. Barry v. Pennsylvania Railroad Co., 65 N. J. L. 407; 47 Atl. Rep. 464; Deal v. Garter Ice Cream Co., 9 N. J. Mis. R. 730; 155 Atl. Rep. 466; Kennedy v. U. S. Fidelity, &c., Co., supra.

The cause of death, in the absence of demonstrative evidence, is often problematical. The power to grant a new trial is remedial in character and the propriety of each verdict must be judged in the light of the evidence adduced. Eeflecting upon the indispensable factual circumstances which the plaintiff was obliged to establish, appraising the testimony of the witnesses and attributing due significance to the preexisting condition of the insured,' and the span of time, between the accident and the death of the insured, it seems evident that the verdict of the jury was not in conformity with the weight of the evidence. At the trial the circumstances of the accident were dramatically described in tears by the members of the insured’s family. At such times an atmosphere of lamentation pervaded the court room. The impropriety of the verdict may be reasonably ascribed to the influence of sympathy.

Eule absolute.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    TOWN OF WEST ORANGE, PETITIONER, v. ESSEX COUNTY BOARD OF TAXATION ET AL., RESPONDENTS.
    Decided June 7, 1940.
    For the town of West Orange, Gerald T. Foley.

    For Essex County Board of Taxation, David T. Wilentz, attorney-general (by John Solan).

    For the city of Newark, James F. X. O’Brien (by Vincent J. Oasale).

      For the town of Montclair, George 8. Harris (by Joseph L. Lippman).

    For Cedar Grove township, Samuel W. Boardman, Jr.

    For the borough of Caldwell, Philip D. Elliott, Charles A. Thornton, assessor, and George W. VanderJDeclcer, treasurer.
    For the borough of West Caldwell, Alexander C. Martin, secretary of the Tax Board.
    For the town of Bloomfield, O. G. Olsen, assessor. ■
    For the town of Irvington, James McBonaugh, assessor.
    For the township of Maplewood, A. E. Weiler, assessor.
    For the town of Nutley, Henry Conover, assessor.
   Quinn, President.

Proceeding under the provisions of B. 8. 54:2-37, the petitioner applies for review of the equalization table adopted by the Essex County Board of Taxation for the year 1940. The petition of appeal herein was filed upon the sixth day of May, 1940, and the hearing held May 23d, 1940. Under the statute, our review must be completed before June 10th, 1940. In substance, the complaint of the petitioner, as maintained at the hearing and contended for in its brief, is that the table adopted by the county board is a nullity because of failure of compliance by that body with the applicable statutory directions contained in R. S. 54:3-17, 54:3-18 (N. J. S. A. 54:3-17, 54:3-18), and that it should therefore be set aside; that the valuations submitted to the county board by the taxing districts of Newark and Montclair, and confirmed by the board, represent radical reductions in the aggregate valuations from those of previous years, warranting an upward revision of such aggregates to such higher figures as may be determined to accord with the true value of their respective ratables, or, in the alternative, a reduction of the aggregate valuations of all-of the taxing districts in the county other than Montclair and Newark, to such lower figures as may be found to represent the true value thereof.

Before proceeding to a discussion of the facts involved, we deem it important to emphasize that under the statute controlling our functions in this appeal. R. S. 54:2-37 (N. J. S. A. 54:2-37), we cannot discharge our duties by any mere conclusion that the county board failed to make such an investigation of the lists of assessed ratables returned to it by the respective taxing districts as we might conceive it should have done, or that, under the circumstances, there is a probable or possible deviation between the several aggregates returned, and approved by the board, or any of them, and the corresponding true values of the respective ratables. Wo may not, for any such reasons, were they deemed established, set the equalization table aside, without more. The statute correct the equalization table. * * *”

“* * * if, after the hearing, the board shall determine that the aggregate valuation of any district or districts as fixed by the county board was erroneous, it shall revise and correct the equalization table * *

It is clearly implied that no action is to be taken by this board in the premises, unless, as a result of proof adduced at the hearing, coupled with such knowledge or experience, if any, as it may have with reference to the subject-matter in question (Bayonne v. State Board of Tax Appeals (Supreme Court, 1935), 13 N. J. Mis. R. 334; 178 Atl. Rep. 177), it is able to say, as a matter of its own determination, what the true value of the property in the questioned duplicates should be, for purposes of revising and correcting the equalization table. The law envisages a culmination of the appeal such as will result in a final determination of the correct table, and not a mere setting aside of the table approved by the county board, unaccompanied by corrective action by this board. Unless, therefore, petitioner’s proof herein is such as to enable this board to say what ratio does exist between the assessed valuations set out in the table under attack, and the true values of the properties, it must dismiss the appeal, whatever may be its opinion as to the possibility of the existence of a deviation between such true value and the actual assessments. And, in this connection, it is unquestionable that the presumption is in favor of any action of the county board, in its revising and equalizing capacity (Newton Trust Co. v. Atwood (Supreme Court, 1908), 77 N. J. L. 141; 71 Atl. Rep. 110), with a consequent burden of proof resting upon any objector to its action.

The legislative provisions governing county boards of taxation, in respect of the function of equalization, are R. S. 54:3-17, 54:3-18 (N. J. S. A. 54:3-17, 54:3-18), which read as follows:

54:3-17. “Bach county board of taxation shall annually ascertain and determine, according to its best knowledge and information, the general ratio or percentage of full value at which the real property of each taxing district is assessed according to the tax lists laid before the board. It shall prepare an equalization table showing the assessed valuation of the real property in each district, the ratio or percentage, if any, by which the assessed valuation should be increased or decreased in order to correspond to true value, and the true value of the real property within the district as determined by it. A copy of the table shall be mailed to the assessor of each district, and be posted at the court house, at least one week before the hearings provided for in section 54:3-18 of this title.”
54:3-18. “The county board of taxation in each county shall meet annually on January twenty-fifth for the purpose of equalizing the assessments of real property between the several taxing districts of the county. At the meeting a hearing shall be given to the assessors and representatives of the governing bodies of the various taxing districts for the purpose of determining the accuracy of the ratios and true valuations of property as shown in the equalization table, and the board shall confirm or revise the table in accordance with the facts. The hearings may be adjourned from time to time but the equalization shall be completed before March tenth. At the first hearing any taxing district may object to the ratio or valuation fixed for any other district, but no increase in any valuation as shown in the table shall be made by the board without giving a hearing, after three days’ notice, to the governing body of the taxing district affected.”

These sections must be understood in relation to li. 8. 54:4-35, requiring the several assessors to attend before the county board of taxation on January tenth and file with it their complete assessment lists. The county board then proceeds to prepare the equalization table (referred to in petitioner’s argument as the preliminary table) under the directions specified in B. 8. 54:3-17 (N. J. S. A. 54:3-17), and to mail a copy of it to each of the assessors on or before January 18th.

This procedure was not strictly followed in Essex county for the reason that completed duplicates of the taxing districts of Newark and Millburn were not filed with the county board within the time specified by the statute, and in the case of Newark, not until March 9th, or one day prior to the date designated in R. S. 54:3-18 (N. J. S. A. 54:3-18) for the completion of the full process of equalization by the county board. Therefore, the preliminary table sent out by the board was, perforce, incomplete in so far as the assessed valuations in Newark and Millburn were concerned. The table did specify the assessment totals in each of the other municipalities, including that of Montclair, and, in the case of each taxing district, did further recite that none of the assessed valuations were required to be increased or decreased by any percentage (in order to correspond to true value).

On the morning of March 9th, 1940, the city of Newark finally produced its assessment list, showing a 1940 figure for assessed realty in the amount of $604,858,345, as compared with its 1939 total of $654,687,280. Thereafter, on the same day, the county board adopted the table now under review, accepting and confirming, without any change, all of the lists of assessed real property valuations returned to it by the respective assessors. At the hearing before the county board on that day, counsel for petitioner sought to establish whether, and to what extent, the board had examined the lists returned by the assessors for the purpose of ascertaining whether they corresponded to true value. Petitioner was particularly interested in the return made by the town of Montclair, showing a decrease from the 1939 real property valuations, which were $83,185,900, to the 1940 total of $74,864,600, and in the Newark figures above mentioned. Its counsel requested that the county board permit its secretary to be sworn as a witness, or in the alternative, that the members of the board make a statement for the record, or give testimony, as to what their investigation of the figures submitted had consisted of. The board ruled that it would not give such testimony, but did state specifically that the lists returned, including the questioned valuations in Montclair and Newark, were, in the opinion of the board, as founded upon its knowledge and information gained in hearings held in the past, and spot check investigations, correct and acceptable.

Petitioner argues that the failure of the county board to prepare and send to the assessors on January 18th, 1940, a preliminary equalization table, complete as to all of the taxing districts, deprived it of any jurisdiction to adopt a final table, and made its purported adoption of a table on March 9th, a nullity. It further contends that the refusal of the board to furnish the testimony or a statement of the character requested of it by petitioner on March 9th, was arbitrary and capricious, and that, for each of these reasons, the table should be set aside. We are of the opinion that neither of these contentions is sound.

It is of the most vital importance that a final equalization table be adopted by the county board of taxation prior to the expiration of the time fixed for that purpose by the statute, so that the machinery of estimation, apportionment, and distribution of county and state taxes for a given year shall be definitely and finally set in motion. R. S. 54:3-19; N. J. S. A. 54:3-19. The legislative scheme evinces such a purpose. Differences between amounts charged to taxing districts under the county equalization table and those resulting from a correction of the table upon appeal, do not affect the apportionment of county and state taxes for the current year, but are adjusted in the following year. R. S. 54:2-37; N. J. S. A. 54:2-37. The obvious helplessness of the Essex county board to compel the Newark and Millburn assessors to file their duplicates on time, and its consequent inability to prepare and distribute a timely preliminary equalization table, did not deprive it of its right, or relieve it of its duty to adopt a table prior to March 10th. In Hugg v. Camden (Supreme Court, 1877), 39 N. J. L. 620, 623, the court said :

“* * * where a statute directs a person, in the discharge of a public duty, to do a thing at a certain time, without any negative words restraining him from doing it afterwards, or any expression from which such intent can bo gathered, the naming of the time is but directory, and not a limitation of authority. While, therefore, the duty enjoined may be performed at a time subsequent to that named in the statute, and the action be valid, because the time is not of the essence of the act required to be done, and is not a condition precedent to its validity, yet the statute should be obeyed, and the duty performed at the time specified.”

Petitioner’s grievance at not having been served with a complete1 preliminary equalization table on January 18th can consist only in its lack of notice of the omitted valuations of Newark and Millburn, in sufficient time to make and argue before the county board any objection it might have had to their variation from true value, if any. Its right of appeal to this board from the table as adopted is a complete remedy in that behalf.

Nor has petitioner any just complaint with respect to the proceedings before the county board on March 9th. R. S. 54:3-18 (N. J. S. A. 54:3-18) provides that the hearing afforded to the several taxing districts before the county board shall be for the purpose “of determining the accuracy of the ratios and true valuations of property as shown in the equalization table,” and that at the first hearing, “any taxing district may object to the ratio or valuation fixed for any other district,” such objection to be determined after hearing, on notice to the district affected. Clearly these provisions made it incumbent upon the petitioner to offer proof of the true value of the real property assessed in Montclair and Newark, if it sought to establish that the ratables in those districts were assessed at less than true value. This it did not do. The statement by the county board that its adoption of the valuations as returned by the assessors was in consequence of its opinion that such valuations were correct, based upon the knowledge and information gleaned by the board from hearings in the past and from spot check investigations, was a sufficient justification, prima facie, of its action, if indeed at all necessary. County tax boards are presumably intimately conversant with local real property valuations. See State, Weehawken v. Roe (Supreme Court, 1872), 36 N. J. L. 86 (at p. 88), where it was said of the local county boards of assessors, corresponding to the present county boards of taxation:

“Our law-makers have presumed that assessors in the discharge of their functions will become acquainted with the values in their county, and by an interchange of views, be able to ascertain approximately, not accurate^, the relative valuations, so that no apparent injustice will be done to any one township. This is all that was intended to be secured by the provision in question. It shall appear to the board from the knowledge which each one possesses, aided by that derived from his associates, that there is inequalitj', that inequality may be removed, according to their best judgment, and nothing more. Before they can act at all, upon any duplicate, they must decide that the valuation contained in it is relatively less than the value of other property in the county, and then they correct it as to themselves shall seem just and proper. The act was designed to enable the board of assessors to remove, not arbitrarily to establish inequality, by permitting them to act in the premises without first having the sanction of their own judgment as a board, that a state of facts existed which authorized them to interfere at all.”

We conclude, accordingly, that nothing that took place below, ipso facto, can justify our interference with the equalization table under appeal. It remains to consider whether any showing was made before this board which would warrant our substitution of a different equalization table for that adopted by the county board. The gravamen of petitioner’s argument before this board is that the considerable reductions in valuations made by the assessors of Newark and Montclair in the year 1940, taken together with the substantially unchanged aggregates of the other taxing districts, and the constancy of all of the municipal valuations, including that of Newark, from 1930 to 1939 (except for Montclair, where there was a reduction of approximately $16,000,000 in 1939) establish a prima facie case to the effect that either the Newark and Montclair valuations for 1940 are too low, or that those of the other municipalities are too high. In our view this conclusion is both a non-sequitur and irrelevant to the proper issues in an appeal of this type. It is irrelevant in that the statutes controlling this board in the matter enjoin upon it the single duty of determining, upon evidence adduced before it, in which case, if any, the aggregate assessed realty Valuations of a particular taxing district, as confirmed by the county board, vary from the true value of the property, and by what percentage. Petitioner may not, upon the basis of mere conjecture or inference, pass on to this board the responsibility of determining the facts by independent investigation, where it fails to carry its burden of alleging and proving, by direct, competent, and persuasive testimony as to values, a variance between aggregate assessed values and true values, in one or more districts. Newton Trust Co. v. Atwood, supra.

And were it material to the issues, we do not conceive that the fact of the reductions in Valuations in Newark and Montclair establish, prima facie, the conclusion that either the assessments in those taxing districts is below true value, or that those of the other municipalities are in excess thereof. The county board may well have considered that the reductions in Newark and Montclair had the effect of bringing previously pegged valuations of the past decade down to figures more consonant with present day depressed true values. And the county board may have felt, moreover, that under-valuations in West Orange and other Essex municipalities of past years, have now, by force of the economic depression in realty values, become true values. We do not know. The members of the county board were subject to subpoena at the hearing herein and could have been examined as to their knowledge and information. Hoboken v. State Board of Tax Appeals (Supreme Court, 1936), 14 N. J. Mis. R. 207; 183 Atl. Rep. 719; Long Dock Co. v. State Board of Assessors (Supreme Court, 1914), 86 N. J. L. 592; 92 Atl. Rep. 439. We expressly invited counsel for petitioner to call the county board members as witnesses in this connection, but he was unprepared to do so. In any event, there is a presumption in the first instance in favor of the estimations made by the assessors. Estell v. Hawkins, (Supreme Court, 1887), 50 N. J. L. 122, 125; 11 Atl. Rep. 265, and we do not believe that a prima facie case against the correctness of assessed valuations can ever be indulged in, without the presentation of specific testimony as to values, regardless of past assessment history. Bach annual assessment of property for taxation is a separate entity, distinct from the assessments of the previous years. United New Jersey Railroad and Canal Co. v. State Board (Supreme Court, 1925), 101 N. J. L. 303; 128 Atl. Rep. 427. And see, with reference to an equalization based upon comparison with valuations for prior years. State v. Hopper (Supreme Court, 1892), 54 N. J. L. 544 (at p. 546); 23 Atl. Rep. 948.

We turn, thus, to consider what specific testimony petitioner adduced before this board bearing upon the ratio of the assessed valuations of any of the taxing districts in the county to true value. There was an utter absence of any proof whatever with respect to any of the districts other than Montclair. Apart from the weight and sufficiency of the evidence adduced as to Montclair, discussed hereinafter, it is obvious that no relative inequality of assessed valuations in the county could have been established by the petitioner. With respect to Montclair, petitioner first offered to prove what an investigation by the State Tax Department had disclosed as to the ratio between assessments and average sales prices, as disclosed by records of deeds of property in that taxing district, for the year 1927 and the succeeding years. This was excluded as remote and not relevant to the question of the ratio for the year 1940. Petitioner then produced another witness who had prepared a schedule based upon data in the office of the Montclair assessor, showing the consideration paid in the transfer for 482 parcels of realty in that town in 1938 and 1939, as reflected by the amount of revenue stamps on the deeds and recitals as to mortgage incumbrances. Upon the basis of this infoimation, the witness testified to an average ratio of seventy-nine per cent, between assessed valuations and sales prices. It has been judicially determined by the courts of this state that proof of the type described is of little or no probative force. In Central Railroad of New Jersey v. State Tax Department (Court of Errors and Appeals, 1933), 112 N. J. L. 5, 9; 169 Atl. Rep. 489, the Court of Errors and Appeals approved the refusal of this board to accept as evidence of the relationship of assessments to average values, scattered sales of active and desirable properties throughout the state. The absence of any proof as to “the great mass of taxable property,” was held fatal. With specific reference to an exhibit purporting to represent a summary of written reports made to the State Board of Taxes and Assessment containing information pertaining to the considerations shown in deeds conveying realty, as recorded in the registers’ and clerks’ offices of several counties, the court said, after expressing doubt as to the admissibility of the exhibit ás a matter of evidence (at p. 12) :

“Even if Exhibit P-1 can be considered, the unreliability of its contents to prove true valuation is obvious. Study of the exhibit indicates that the properties described in the deeds reported by the examiners attain a maximum of seven per cent, in but two counties; a minimum of one and seventy-eight one-hundredths per cent, in one county, and an average of four and sixty-eight one-hundredths per cent, of the total assessed value of the real estate for the twenty-one counties. There is nothing to show that the consideration stated in these deeds represents the actual consideration that passed or the true value of the property involved. Quite to the contrary it can be said that it is the common practice not to disclose the true consideration in deeds. See Seefeld v. Chicago, Milwaukee and St. Paul Railway Co., 29 N. W. Rep. 904, to the effect that:

£££* * * On their face the railway company was a stranger to these conveyances, and was not bound by recitals therein of the consideration paid. Such recitals are nothing more than ex parte statement of the grantors and grantees that the considerations named were paid and received for the respective lots. As between the parties thereto, each of these conveyances would be evidence of the consideration paid and received, because it is an admission of the fact by all the parties to it. But, it is not conclusive evidence. Either party may show that the true consideration was greater or less than that named in the deed, just as a party may always deny, explain or controvert his alleged admissions against his own interest unless they create an estoppel. # í{í SfiJ

“In Coulter v. L. and N. Railway Co., 196 U. S. (at p. 609), Judge Holmes, in discussing the figures obtained as in the instant case, stated:

“ £It is obvious that the accidental sales in a given year may be a misleading guide to average sales, apart from the testimony that some at least of the conveyances did not report true prices, yet they furnish the chief weapon of attack & ❖ ?

“It cannot be assumed that the amount contained in a deed represents the actual consideration in a given case or that it represents the fair and true value of the property in question. Experience teaches otherwise. Conveyances, including mortgages, between members of families, trades of properties, purchases made in an artificial market, distress selling and many other elements combine to render such evidence of little, if any, probative force.”

The remarks of the court are as fully applicable to the purported proof here adduced bearing upon the Montclair valuations. Ho other proof having been offered by petitioner, we have no alternative than to find that the burden of proof resting upon it to establish a variance between the assessments filed with and approved by the county board, and the true value of the real property situate within any taxing district in the county, has not been sustained. Borough of River Edge v. Bergen County Board of Taxation (State Board Tax Reports, 1912-1934, p. 720). The appeal is therefore dismissed.

Judgment accordingly.


author: Hartshorne, C. P. J.

text:
    Essex County Court of Common Pleas.
    JOSEPH McCADDEN, PETITIONER-APPELLANT, v. WEST END BUILDING AND LOAN ASSOCIATION, A CORPORATION, RESPONDENT-APPELLEE.
    Decided June 12, 1940.
    For the petitioner-appellant, David Bosleein (Harry Cohn).

    For the respondent-appellee, William, B. McMichael.

   Hartshorne, C. P. J.

This case presents the issue whether the enucleation of an eye, whose sight had previously been largely destroyed, is “the loss of an eye” within the meaning of the Compensation act. R. S. 34:15-12 (s); N. J. S. A. 34:15-12 (s).

McCadden, employed as a janitor by respondent, was washing down some stairs with washing fluid, when some of it splashed into his left eye. Due to the pain, he instinctively rubbed his eye with his wet hand (record, page 3). The pain was so severe that he went to several doctors for treatment. When the pain Aid not clear up after a few weeks, the eye was enucleated.

But some twenty-seven years previously, the sight of this ej-e had been very seriously affected when it was hit by a bolt. Evidently this accident had, unknown to petitioner, partially dislocated the lens, though this condition had caused him no pain in the interim, simply leaving his eye with badly impaired sight.

When seen by several doctors, subsequent to the recent accident, the eye was badly inflamed, the lens being found by the later doctors, at least, to be totally dislocated. All apparently agree to the original partial dislocation, that same might become wholly dislocated in the course of time, but that trauma would definitely cause and hasten such permanent dislocation.

The medical men differ as to whether the splashing of the washing fluid here did cause the complete dislocation, though the doctor on whom the bureau largely relies in finding that it did not, admits that it might have. And such doctor evidently incorrectly assumed from the questions asked him that the complete dislocation pre-existed the recent accident (record, pages 69, 75). Since the loss of vision, and the ultimate enucleation of the eye, was dixe, not directly to the inflammation, but to the dislocation of the lens, such doctor naturally concluded that, since this dislocation pre-existed the accident, the accident could not have caused it.

But it stretches the imagination rather far to assume, that an entirely painless eye for twenty-odd years should suddenly, at the time of an accident, but without connection therewith, and by mere coincidence, become so painful as to require its enucleation. And if respondent’s doctors are correct that the cause of complete dislocation was trauma, this factor appears in the petitioner’s purely instinctive act, immediately after the accident, in rubbing his eye. Or, if petitioner’s physicians are correct, the washing fluid itself is the causative factor. In either event, the accident was the natural and proximate cause of the total loss of the eye itself.

We now turn to the question of law, as to whether the surgical removal of an eye is “the loss of an eye” under the statute, despite the fact that the sight of that eye had been largely impaired previous to the accident in question. Note that this act, to be liberally construed, speaks in terms, not of the loss of vision, but of “the loss of an eye.” And this provision (s) is surrounded by nineteen similar provisions, running from (d) through (v), all of which, with one exception, refer in so many words to the loss of a body member. This exception (u) refers to “the total loss of hearing in one ear,” there being no express provision for the loss of an ear. Poliowing this lengthy schedule of member losses, comes subdivision (w) covering “all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired.” Doubtless, the loss of an ear, or a portion of a toe, for instance, would be considered a “loss” under (w), while a strictly functional disability, of partial permanent quality, would be an impairment of “usefulness.” In other words, the word “eye” in (s) immersed amidst other members, refers to the body member, eye, and not to the function of vision, the loss of which is separately covered by subsection (w). Compare Burbage v. Lee, 87 N. J. L. 36; 93 Atl. Rep. 859; Orlando v. Ferguson & Son, 90 N. J. L. 553; 102 Atl. Rep. 155; Combination Rubber Manufacturing Co. v. Obser, 95 N. J. L. 43; 96 Id. 544; 115 Atl. Rep. 138; Sigley v. Marathon Razor Blade Co., 111 N. J. L. 25; 166 Atl. Rep. 518; Everhart v. Newark C. & D. Co., 119 N. J. L. 108; 194 Atl. Rep. 294.

The previously decided eye cases, whether with or without enucleation, are not to the contrary. While many of them refer to (s) or (v) in permitting recovery for a functional loss, this is due simply to the fact that in calculating such recovery under the functional subsection (w), it is necessary to refer, in an eye case, to (s) or (v) as the basis. Feldman v. Braunstein, 87 N. J. L. 20; 93 Atl. Rep. 679; Vishney v. Empire Steel and Iron Co., 87 N. J. L. 481; 95 Atl. Rep. 143; Orlando v. Ferguson & Son, supra; Purcell v. International Motor Co., 91 N. J. L. 707; 104 Atl. Rep. 894; Combination Rubber Manufacturing Co. v. Obser, supra; Johannsen v. Union Iron Works, 97 N. J. L. 569; 117 Atl. Rep. 639; Sigley v. Marathon Razor Blade Co., supra.

In fact, the Workmens Compensation Bureau has already held twice previously, that the enucleation of a partially sightless eye, constitutes the loss of an eye under the statute. Cheatham v. O'Brien, May 6th, 1939; Russo v. Frank DiGiacomo & Co., December 19th, 1939.

And similar has been the construction throughout the United States, though, of course, the variant statutory provisions must be borne in mind. The courts have there held, with but few exceptions, that the loss of a totally or partially sightless eye, constitutes the loss of an eye. Shaughnessy v. Diamond Iron Works (Minn), 208 N. W. Rep. 188; Wareheim v. Melrose Co. (Minn.), 201 Id. 543; Mosgaard v. Minnesota Street Railway (Minn.), 201 Id. 545; Thompson-Starrett Co. v. Ferguson (Ohio), 183 N. E. Rep. 47; Purchase v. Grand Rapids Furniture Co. (Mich.), 160 N. W. Rep. 391; Hayes v. Motor Wheel Corp. (Mich.), 208 Id. 44; Liimatta v. Calumet & Hecla Mining Co. (Mich.), 201 Id. 204; Justice v. Arkansas Flour Mills Co. (Kan.), 76 Pac. Rep. (2d) 802; City of Shelbyville v. Kendrick (Tenn.), 29 S. W. Rep. (2d) 251; Hobertis v. Columbia Shirt Co., 173 N. Y. S. 606; Bervilacqua v. Clark, 232 Id. 502; 250 N. Y. 589; Leach v. Grangeville Highway Dist. (Idaho), 41 Pac. Rep. (2d) 618.

The only cases, even apparently to the contrary, are Rye v. Chevrolet Motor Co. (Mich.), 201 N. W. Rep. 226; Rector v. Roxana Petroleum Corp. (Okla.), 235 Pac. Rep. 183; Quinn v. American International Shipbuilding Corp., 77 Pa. Sup. Ct. 304. But the statute involved in the first case, adhering to the above minority rule, contains no separate functional impairment section, such as exists in New Jersey. And the statutes involved in the last two cases specifically provide that the loss of an eye means the loss of vision, which the New Jersey act does not. Furthermore, this construction is quite consonant with the previously construed meaning of the New Jersey act, that it covers workmen of all ages and conditions of health, their awards to be governed, not by their pre-existing condition, but by the result of the compensable accident. Bateman Manufacturing Co. v. Smith, 85 N. J. L. 409; 89 Atl. Rep. 979; Combination Rubber Manufacturing Co. v. Obser, supra; Bernstein Furniture Co. v. Kelly, 114 N. J. L. 500; 177 Atl. Rep. 554; 115 N. J. L. 500; 180 Atl. Rep. 832; Richardson v. Essex National Trunk, &c., Co., Inc., 119 N. J. L. 47; 194 Atl. Rep. 622.

Again the resulting hardship of imposing on the employer the same award, regardless of the state of vision, is a matter of policy, not of power. It is hence for the legislature to correct by either specific reference to loss of vision, by amplification of the One Per Cent. Fund act to cover partial permanent disabilities, or otherwise.

The determination of the bureau will, accordingly, be reversed, and a determination may be entered accordingly.


author: McGrath, C. P. J.

text:
    Union County Court of Common Pleas.
    HUGO W. BOBERTZ, PETITIONER-APPELLANT, v. TOWNSHIP OF HILLSIDE, RESPONDENT-APPELLEE.
    Decided May 15, 1940.
    For the petitioner-appellant, Kellogg & Chance.

    For the respondent-appellee, Nathan & Isadore Bdbinowitz.

   See opinion of Workmen’s Compensation Bureau, Bobertz v. Hillside, 17 N. J. Mis. R. 396.

McGrath, C. P. J.

Petitioner was employed as a sewer inspector by the township of Hillside, a large residential and manufacturing suburb lying between Elizabeth and Newark. His petition alleges that he “was in a manhole and slipped and sewerage material went into petitioner’s face and mouth” and “as a result of getting sewage into his mouth he was taken ill with typhoid fever,” &c., and claim was made for all disability and expenses “due to the accident.” The referee in dismissing the petition said: “I cannot find from the evidence that there was any more probability that the typhoid was contracted by the petitioner in the course of his work in the sewer than from eating or drinking something,” &c. “The proofs in this case are insufficient and not persuasive that the injury occurred by reason of the services rendered in the employment.” This, of course, was not the point involved, since the question was not merely whether petitioner had contracted the disease in the course of his work but whether in the course of his work he had suffered the accident which he set forth in his petition and on which he relied to prove the cause of his infection. Bollinger v. Wagaraw, 122 N. J. L. 512; 6 Atl. Rep. (2d) 396.

The referee says: “There was no testimony showing that any of the sewage in the sewer systems of Hillside had ever been analyzed or that there was anything in the particular sewage that might justify the conclusion that petitioner contracted this disease therefrom.” However, all the physicians who testified on the subject agreed that sewer water and human feces are common sources of tj^phoid, and it is undenied that this particular sewer serves the neighborhood for the purposes of carrying off the filth and human excreta of all kinds from the dwellings and factories and streets which it serves.

As to the accident, it is proved by Bobertz’s testimony and no one was produced to say that it did not happen. It is an accident which was likely to happen and there is nothing incredible in his story. It was his business to go into the sewer if it was stopped up, and in addition to his sworn testimony he produced a record and testified without objection that the record showed that he was in the sewer on September 28th, 1937, the date of the accident as alleged in the petition. At no time did he make any statement that it did not happen, and while there are discrepancies in his statements previous to the filing of the petition, it must be remembered that the man was stricken with a particularly virulent typhoid from October 9th, 1937, to March 12th, 1938; and that he was in the hospital and confined to his home until May 3d, 1938, and that he still suffers some of its effects; that in addition to typhoid he had pneumonia and empyema and was compelled to undergo an operation; he was reduced almost to skeletal appearance, and was not able to go back to work until June, 1938, nearly eight months later. His statements must be considered in the light of his condition.

The alleged discrepancy is that he did not tell his doctors and the insurance company and at the informal hearing that the “accident” occurred on September 28th, 1937, but placed it at a later date, i. e., October 9th, 1937, the date on which he was actually stricken while working a second time in the same sewer. An “accident” has a technical meaning which even lawyers sometimes debate, and the layman would naturally regard as the “accident” the occurrence of October 9th, when he was actually stricken, rather than the fall in the sewer on September 28th which was in itself trivial, and left no physical or other immediate results. He did not know when he slipped in the sewer on September 28th, 1937, that it would result in typhoid and would naturally regard his experience on October 9th, when the disease first manifested itself, as the real inception of his infection. He should not be penalized for not knowing something which could only be developed by investigation, particularly when during a great deal of the time he was suffering intensely from his experience.

The referee, who heard the testimony and saw the witnesses, did not find that there was no accident and the accident is supported by the record. I find that the petitioner did sustain the accident as alleged in his petition on September 28th, 1937, that his employer had notice of the injury and that it arose out of and in the course of his employment.

As to the cause of the typhoid, it is stressed by all the physicians on both sides that contaminated water is a common source of typhoid. Dr. Meehan, for the respondent, says: “The most common source of typhoid fever is water, and it is the classical water borne disease.” Again: “Many people working in sewers contract typhoid fever? Yes, sir; they would.” He also gives human excreta as one of the sources of the germ, and says: “Urine contains that organism.” (Page 118 of testimony.) Dr. Cucinella, for the respondent, says: “The sources of infection are chiefly the things that are ingested such as milk, water, or things that we come in contact with such as sewage, flies and fingers, or anything that may become contaminated by the typhoid bacillus.” On page 130 he stresses the point that human feces is chiefly the source of typhoid. “You will find that typhoid is very prevalent in countries where this disposal of the house garbage and human feces is faulty.”

All the doctors agree that human excreta is a source of typhoid (Dr. Konzelmann, page 58; Dr. Casilli, pages 80, 82, 87; Dr. Meehan, pages 104, 115, 118; Dr. Cucinella, pages 121, 130) and a thorough consideration of the testimony in this case convinces me that the petitioner has established that the most probable source of the typhoid in this case was the infection by the sewer water on September 28th, 1937. It is also significant that the disease developed within the normal period of incubation after the occurrence of September 28th, 1937. True, there are other sources of typhoid, such as contaminated drinking water, &c., but there is no proof that petitioner came into contact with any of them. There is proof, however, that he did come into contact with sewer water, contaminated not only with the filth washed down from streets but also with human feces and excreta of all kinds from the neighboring houses and factories.

There is no proof in this case that the drinking water or the food or the milk which petitioner consumed was in any way contaminated. Mies and other insects are also a source but only if they contaminate a person’s food (page 88) and there is no proof that they did so in this case. “Carriers” may also carry the disease, but there is no proof that they did; neither is there any proof that petitioner, by personal uncleanliness, contaminated himself. The hypothesis that the contaminated sewer water was the cause is the only one supported by actual proof of contamination and personal contact. With modern control of drinking water, milk, and to a lesser extent food and insects, typhoid has become a rare disease (page 131) and we would naturally expect to find its cause, not in the normal routine of protected urban life, but in some abnormal occurrence, such as the experience of petitioner in this case. Typhoid is both a contagious and communicable disease and one likely to become epidemic if there is a common source. There is no evidence that anyone else in Hillside or in Mr. Bobertz’s household suffered from it. The theory of a “carrier” was eliminated by Dr. Oasilli’s testimony (page 72) and is remote in any case, and the suggestión that petitioner contaminated himself by fingers is even more remote and unsupported by any proof whatever. Nor is there any proof that Bobertz is a person abnormally susceptible to typhoid fever; it is unquestioned that he enjoyed good health for eighteen years before the accident.

The weight of medical authority is very much in petitioner’s favor. Dr. Konzelmann, his treating physician, supports his claim and so does Dr. Casilli, who also treated him and who is the director of laboratories of Elizabeth General Hospital and St. Elizabeth’s Hospital, director of laboratories of the Board of Health of Elizabeth, New Jersey, and part time director of Alexian Brothers’ and Perth Amboy Hospitals, and a specialist in pathology and bacteriology. His opinion is supported to a large extent by bacteriological investigations as to the cause of the infection and he gave the question serious consideration for the purpose of treatment. On the other hand, Dr. Meehan, for the respondent, is a general practitioner who has studied these diseases as a “hobby.” He did not examine Mr. Bobertz, nor consult the records of the Board of Health of Hillside, nor make any investigation. Dr. Cucinella, for the respondent, said: “The last ease I saw of typhoid fever was probably fifteen years ago.” His “examination consisted mostly of going over blood tests, and so forth, and records at the hospital.” An exhaustive examination was inadvisable because petitioner had been reduced to an extremely weakened condition, was almost skeletal in appearance.

Both doctors for respondent base their opinions on “certainties” but this is not the legal test. A court room is not a laboratory and even an analysis of the sewer water after the infection arose would be open to the objection that it was too remote as well as to the credibility and ability of the analyst. Disagreement among doctors as to the analyses and diagnoses is common and it is not necessary that the mind of the trier of fa (its should be free from all doubt; it is his duty to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth. Nor do the other possible or probable causes have to be excluded beyond doubt. Jackson v. Delaware, Lackawanna and Western Railroad, 111 N. J. L. 487 (at p. 490); 170 Atl. Rep. 22; Borosayvich v. Celluloid, &c., 118 N. J. L. 392; 193 Atl. Rep. 557. Typhoid resulting from an accident is compensable. 71 C. J. 598, note 95. See, also, Bollinger v. Wagaraw, supra. Nor is this rule open to the objection that the court is “drawing inference upon inference.” Jackson v. Delaware, Lackawanna and Western Railroad, 111 N. J. L. 487 (at p. 491); 170 Atl. Rep. 22. Applying these principles, I find that the petitioner’s infection was the direct and proximate result of the accident of September 28th, 1937, and that the aforesaid typhoid fever became complicated with other ailments and in the endeavor to relieve petitioner’s condition, operation became necessary and was performed, and the said typhoid fever and complicating ailments are compensable injury by accident within the terms and contemplation of the compensation laws of the State of New Jersey.

As a result of the compensable injury as aforesaid, the petitioner was confined to the Alexian Brothers’ Hospital for a long period of time and was temporarily and totally disabled from October 9th, 1937, to June 15th, 1938, a period of thirty-five and three-sevenths weeks. He returned for duty at his former work for the respondent on the last named date.

As a further result of the said accidental injury, the petitioner sustained a certain percentage of permanent disability which under the evidence is found to amount to ten per cent, of total and permanent disability for which there should be a recovery.

The court below made no 'finding on the bills and charges submitted and the parties have stipulated that these should be submitted to the discretion of this court. I find that in the endeavor to effect a cure of petitioner’s aforesaid injury, medical, surgical and hospital services were rendered by Dr. Henry J. Konzelmann, Dr. Richard H. Dieffenbach, Dr. Arthur R. Casilli and Dr. Thomas F. Walsh, Alexian Brothers’ Hospital and various registered nurses at the aforesaid hospital. Under the peculiar circumstances of this case, the aforesaid services were necessary and the fees for the same hereinafter specified are reasonable, and since the emplojrer did not furnish any medical or hospital services or offer to do so, but on the contrary denied the happening of an accident or any liability to the petitioner under the Compensation law, the employer is required to pay for the aforesaid services and the amounts for the same, hereinafter specified, are found properly assessable against the respondent-appellee, which is ordered to pay for the same.

The employer had knowledge of the absence of petitioner from his work and made no point on the question of notice of injury in either the Workmen’s Compensation Bureau or in this court and I find that he had legal notice of the injury within the contemplation of the act.

It was necessary for the proper presentation of the case before the Workmen’s Compensation Bureau for the petitioner-appellant to offer expert testimony, which expert testimony was provided by Dr. Henry J. Konzelmann and Dr. Arthur B. Casilli. For each of these physicians there is allowed a fee of $50, to be paid by the respondent-appellee.

It was necessary for the proper presentation of petitioner-appellant’s case before the Workmen’s Compensation Bureau that he be represented by counsel and for their services in behalf of petitioner-appellant before the Workmen’s Compensation Bureau, Messrs. Kellogg & Chance are to be paid a fee of $300 by the respondent-appellee.

It was further necessary for the petitioner-appellant to be represented by counsel in connection with this appeal and the said Messrs. Kellogg & Chance in addition to the foregoing counsel foe are to be paid for their services on behalf of the petitioner-appellant in this court, an additional attorney fee of $200, to be paid by the respondent-appellee.

That stenographic charges incurred in the hearing before the Department of Labor, Workmen’s Compensation Bureau, are justly and properly assessable against the respondentappellee.

It is agreed that petitioner was receiving wages at the time of the accident in the amount of $145.95 every two weeks. Accordingly his compensation rate is subject to the maximum of $20 per week. This amounts to thirty-five and three-sevenths weeks, from October 9th, 1937, to June 15th, 1938, a total of $908.57, all of which has been paid.

Since-the proof is that he received wages in full during his illness, there will be no judgment for temporary disability. As to permanent disability, which continues, there is no proof of payment nor claim of such payment in the record. The petition and answer and testimony show that the money paid by respondent was as wages only and the answer specifically states that no payments were made for permanent compensation; in fact, it denied that any compensation was due. It is inferable that whatever payments were made were voluntary and in a spirit of benevolence during his illness and cannot be recovered or credited against the amount due for permanent disability. There is no evidence that they were paid as permanent disability and the statute does not so regard them. DiMeglio v. Slonk Construction Co., 121 N. J. L. 370; 2 Atl. Rep. (2d) 470.

Costs, including the foregoing allowances, will be allowed to the petitioner-appellant.

Wherefore, it is, * * * ordered that the petitioner-appellant recover judgment final as follows:

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