author: Haneman, C. P. J.

text:
    Atlantic County Court of Common Pleas.
    ANNA I. CIBULLA, EXECUTRIX OF THE ESTATE OF JOHN CIBULLA, DECEASED, PLAINTIFF, v. PENNSYLVANIA-READING SEASHORE LINES, DEFENDANT.
    Decided December 6, 1946.
    .For the plaintiff, Abraham Rosenberg.

    For the defendant, Lloyd, Horn & PersTde.-

   Haneman, C. P. J.

This is a motion directed at the complaint in an action commenced under R. S. 2:47-1, et seq.; N. J. S. A. 2:47-1, et seq., commonly known as the “Death Act.” The complaint is filed by Anna I. Cibulla, executrix of the estate of John Cibulla, deceased, suing for herself as widow of the said John Cibulla and for his mother, Caroline Cibulla, both of whom allegedly suffered pecuniary injury as the result of his death.

Motion is now made by the defendant to strike so much of paragraph 6 of the first count as refers to Caroline Cibulla, mother of the deceased, on the ground that she is not a proper party plaintiff.

It is defendant’s contention that since there is a surviving widow but no children, the foregoing statute precludes the mother from being joined as a party plaintiff and that the right to sue vests solely in the surviving widow.

The pertinent statutes involved are as hereinafter set forth:

R. S. 2:47-2; N. J. S. A. 2:47-2 (Death Act) provides as follows:

“Every action, proceeding or claim brought, instituted or made under this chapter shall be brought, instituted or made in the name of an administrator ad prosequendum of the decedent, for whoso death damages are sought to be recovered, except where decedent dies testate and his. will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action, proceeding or claim.”

R. S. 2:47-4; N. J. S. A. 2:47-4 (Death Act) provides as follows:

“The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the widow, surviving husband, and next of kin of the decedent, and shall be distributed to them in the proportions provided by law for the distribution of the personal property of intestates, except that where decedent leaves a surviving widow or husband, but no children or descendant of any children and no parents, the widow or surviving husband shall be entitled to the whole of the amount so recovered, which amount shall be paid to her or him.”

R. S. 2:47-5; N. J. S. A. 2:47-5 (Death Act) provides as follows:

“In every action brought under the provisions of this chapter the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death to the widow, surviving husband, and next of kin of the deceased.”

R. S. 3:5-3; N. J. S. A. 3:5-3 (Statute of Distribution) provides as follows:

“If there be no children, nor any legal representative of them, the whole surplusage shall be allotted to the husband or widow, as the ease may be, of the intestate.”

The purpose of the original Death Act, in the language of Chief Justice Beasley in the case of Haggerty v. Central Railroad Co., 31 N. J. L. 349, was as follows:

“* * * It is entirely and in the highest sense remedial in its nature. Its object was to abolish the harsh and technical rule of the common law—actio personalis moritur cum persona. The rule had nothing but prescriptive authority to support it; it was a defect in the law, and this statute was designed to remove the defect. It is, therefore, entitled to receive the liberal construction which appertains to remedial statutes * * *.”

Originally under the common law, as above stated, there was no right of action for a wrongful death. By virtue of the Death Act such right of action vested in designated persons or classes, if they survived the deceased. In the case sub judice, it is uncontroverted that one or more of such persons did so survive. The question therefore arises, whether the right to sue vested exclusively in the widow.

It is apparent, that under the Statute of Distribution, as applied to the facts in the present case, the widow would be entitled exclusively to the entire recovery. The single doubt cast upon this conclusion is that portion of R. S. 2:47-4; N. J. S. A. 2:47-4, which reads as follows: “* * * except that where decedent leaves a surviving widow or husband, but no children or descendant of any children and no parents, the widow or surviving husband shall be entitled to the whole of the amount so recovered * * *.” This is rather an anomalous provision, in view of the present method of distribution set forth in R. S. 3:5—1, et seq.; N. J. S. A. 3:5-1, et seq.

It is to be noted that no provision is made in this proviso for the distribution of any portion of the damages to such parent in the event of the survival of a widow and parent.

In order to attempt to ascertain the intent of the legislature, it becomes necessary to examine the history of the act involved and the decisions interpreting the same.

The first enactment of a Death Act in 1848 was patterned after its English counterpart known as Lord Campbell’s Act. This act provided, in so far as is here applicable, as follows:

“1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such ease the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

“2. Every such action shall be brought by and in the names of the personal representatives of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next (of) kin of such deceased person; provided, that every such action shall be commenced within twelve calendar months after the death of such deceased person. (Pamph. L. 1848, p. 151.)”

At the time the Death Act was passed, the Statute of Distribution provided as follows:

“II. In case there be no children, nor any legal representative of them, then one moiety of the said estate shall be allotted to the widow of the said intestate, and the residue of the said estate shall be distributed equally to every of the next of kindred of the intestate, who are in equal degree, and those who represent them; provided, that no representation shall be admitted among collaterals after brothers’ and sisters’ children. (Rev. 1877, p. 784.)”

It is quite apparent therefore, that at the time of the passage of the original Death Act, in the event that no children, nor any legal representative of them survived the deceased, the personal estate of the deceased was divided between the widow and the next of kin.

In 1897, Pamph. L. 1897, ch. 58, p. 134, the legislature amended the Death Act and inserted the provision that "where such deceased person has left, or shall leave him surviving a widow, but no children or the descendants of any children and no parents, the widow shall be entitled to the whole of said damages * * For the first time, therefore, the legislature saw fit to increase the interest of the widow in the event that the deceased was survived by neither children, descendants of children, nor by a parent, at the expense and to the exclusion of more remote next of kin.

For present purposes, both the Death Act and the Statute of Distribution remained unchanged until the year 1908. By Pamph. L. 1908, ch. 316, p. 643, the Statute of Distribution was amended to read as follows:

"Allotment of all to widow. II. In case there be no children, nor any legal representative of them, then the whole of the said estate shall be allotted to the widow of the said intestate.”

Coincident with this amendment of the Statute of Distribution, the Death Act was amended by Pamph. L. 1908, p. 721, to read as follows:

"* * * provided, that where such deceased person has left or shall leave him surviving a widow, but no children or descendants of any children, the widow shall be entitled to the whole of the damages which she shall sustain * *

Quite patently, in 1908 the legislature having seen fit to change the Statute of Distribution, conformed the Death Act to such new provisions. It is noteworthy that the 1908 amendment of the Death Act left intact the provision referring to distribution of damages in accordance with the Statute of Distribution, but changed only that portion of the Death Act which was appended as a proviso. Prom 1908 to 1913, there appeared no confusion between the Statute of Distribution and the Death Act, nor was there during this period any confusion or conflict between the several sections of the Death Act.

Prior to the passage of the above referred to acts of 1908, the Court of Errors and Appeals in Gottlieb v. North Jersey Street Railway Co., 72 N. J. L. 480; 63 Atl. Rep. 339 (decided March 12th, 1906), decided that a suit for the death of a wife could not be brought for the benefit of her widower.

Thereafter, by Pamph. L. 1913, ch. 287, p. 586, § 2 of the Death Act was amended to give a surviving husband the same right of action for the death of his wife that a surviving widow had for the death of her husband. This act, however, also reinstated the provision deleted in 1908, i. e., “provided that where such deceased person has left or shall leave him or her surviving a widow or husband but no children or descendant of any children and no parents, the widow or surviving husband, as the case may be, shall be entitled to the whole damages * * Here again we are faced with the hiatus of the general direction that distribution shall be made in accordance with the Statute of Distribution, followed by a proviso which seems meaningless. Whether the inclusion of this provision which had been omitted from 1908 to 1913 was inadvertent, we are, of course, unable to positively determine. We may, however, consider its apparent purpose and effect in light of the foregoing and the decisions hereafter referred to.

It is most difficult to understand why this provision was reinserted in the statute, particularly in view of the fact that under the Statute of Distribution, then and now existing, upon the survival of a widow and failure of survival of any children or descendants of any children, the widow took the entire estate, to the exclusion of the father and mother of the deceased.

A supplement to the Death Act was passed in 1917 (Pamph. L. 1917, ch. 180, p. 531) which related particularly to procedure. This act retained the proviso as to the entire distribution to a surviving widow or husband upon failure of children, descendants of children and parents. Ho material changes have been enacted to date.

Actually it may be said that in the present posture of the Statute of Distribution, the provision of the Death Act which gives the wife the entire proceeds recovered for a husband's wrongful death, in the event of the failure of survival of children or descendants of children and parents, is surplusage. In no event, upon the survival of a wife, would the parents be entitled to any distribution of the proceeds.

The particular question here raised has never been passed upon. There are a number of reported cases which may be of aid in this requested construction.

The rights of the persons who would be entitled to sue ond recover are fixed and determined as of the date of the death of deceased. This class can neither be enlarged, nor can any member of the class be excluded from participation by reason of his own death subsequent to that of the person for whose death, action is brought. In Cooper v. Shore Electric Co., 63 N. J. L. 558; 44 Atl. Rep. 633, the court said as follows:

"The pecuniary injury of the beneficiary begins immediately on the death of the deceased, and is a continuing injury until compensated for under the conditions expressed in the act. * * *”

In Cooper v. Shore Electric Co., supra, the court further said (at p. 564); 44 Atl. Rep. 635, as follows:

"The grounds on which this common law rule was vindicated were that the policy of the law refuses to recognize the interest of one person in the death of another and that the value ef human life is too great to be estimated in money. Poll Torts 56, 57. In both of these respects the statute has wrought a change in the common law. The title of the act expresses the legislative purpose to provide for the recovery of damages in eases where the death of a person is caused by wrongful act, neglect or default. This purpose is consummated by enacting that the person or corporation whose wrongful act, neglect or default caused the death should he liable in damages; and the action brought in the name of the personal representatives of the deceased is given for the benefit of the widow and the next of kin of the deceased; and the method by which the damages are to be adjusted is prescribed by the legislature to be such as the jury should deem fair and just with reference to the pecuniary injury resulting from such death to the widow and next of kin. The statute having provided for an action to recover damages for the death of a person by the wrongful act of another, and having conferred a pecuniary interest in the life of such deceased for the benefit of his widow and next of kin, the grounds on which such an action was denied at common law have been entirely removed. The controlling feature in this legislation is that damages are made recoverable for causing death as compensation for the pecuniary injury the designated beneficiaries have sustained by reason of the death. If there be no widow or next of kin at the time of the death of the deceased, the pecuniary injury contemplated by the statute does not exist and the action cannot be maintained. It is also clear that the pecuniary injury to be compensated for is that of the widow or persons who are next of kin at the time of the death of the deceased, and that the cause of action created by the statute enures to such persons as a vested right.”

Since the right of action is a vested right and the pecuniary injury to be compensated for is that “of the widow or next of kin,” how can the mother be said to have any right to join as a party plaintiff? The right of the widow became vested upon the death of her husband to the exclusion of any other claimant, under the terms of the act.

Some moment has been made in the argument and in the briefs filed that in the event of a death, where children and a widow survive, although the widow may sustain no actual pecuniary loss, upon the distribution of the funds recovered, she would participate with the children in accordance with the terms of the Statute of Distribution.

An analogy has been attempted to be drawn between such a hypothetical case and the facts with which we are now confronted. Such a situation is neither comparable nor parallel.

In the ease sub judice, suit is brought not for and on behalf of all of the parties of a class who could participate if recovery were had, but is brought on behalf of the widow who would participate and the mother who could not participate in such recovery. If the mother were here permitted to prove pecuniary injury the jury could bring in a verdict for the damages sustained by both the widow and the mother. Upon distribution, however, the mother could not participate to any extent. It may well be that the mother has sustained actual damage—that her son had contributed to her support. The law is such as the legislature has seen fit to enact and under its terms no provision is made for the mother under such circumstances. The damages the mother may have sustained are not compensable. The ancient maxim, "damnum dbseque injuria” prevents any recovery by her.

Under these conditions it seems academic that the mother should not be allowed to build up the injuries for the benefit of a third party, i. e., the widow. •

The precise point now argued has not been passed upon by the courts of this state. .The closest to a direct opinion is to be found in Stagg v. McCann, 95 N. J. Eq. 53; 122 Atl. Rep. 305, where the facts were stated by the court as follows:

“On January 1st, 1922, L. Lloyd McCann was killed while riding in an automobile which was struck at the River Street crossing, in Paterson, by a train of the Uew York, Susquehanna and Western Railroad Company. His wife, Kathryn P. McCann, who was riding with him at the time was injured, but survived. She was appointed administratrix ad prosequendum of her deceased husband, pursuant to the statute (Pamph. L. 1917, p. 531), and brought suit as such against the railroad company to recover damages under the “Death Act.” In that suit she claimed that, as the widow, she alone is entitled to damages under the statute. The complainant in this bill, however, who is the mother of' L. Lloyd McCann, the decedent, claims that she is also entitled to recover damages for his death, under the statute, and prays that the administratrix be decreed to amend the complaint in the Suit at law, which was brought in the Hew Jersey Supreme Court, so as to show that she is one of the next of kin of the decedent; and restrain the parties to that suit from compromising or settling the controversy in disregard of the complainant’s rights.”

The court said in 95 N. J. Eq. at p. 56; 122 Atl. Rep. at p. 306, as follows:

“There is no ambiguity in that statute. It provides that upon the death of a man leaving him surviving a widow and no children, the widow shall take the whole of his personal property. The parents do not share in his personal estate except when there is no widow or children.

“I cannot think that the legislature meant anything different in the phraseology of the proviso of the 'Death Act’ above quoted than is indicated clearly in the body of the act; and I think it is clear that it intended that the parents should share in the proceeds of such an action only when and to such extent as they would otherwise share in the decedent’s estate directly under the provisions of the statute of distribution.”

And again in granting defendant’s motion to dismiss, the court said as follows:

“* * * i am not unmindful of the force of counsel’s contention in favor of the natural equity of the parents— whose pecuniary support from the decedent is cut off by his death—to participate in the distribution of any fund recovered from the party held to be responsible therefor; but, however unsatisfactory in that respect the method of distribution provided by the statute may be, the remedy for such a situation, which is in clear derogation of the common law rule, should be provided by the legislature and not by any unwarranted interpretation or construction of the existing legislative enactment.”

Upon appeal the Court of Errors and Appeals in 96 N. J. Eq. 327; 125 Atl. Rep. 240, affirmed the dismissal in the following language:

“As the case is improperly here, by reason of the improper procedure, in applying to the Court of Chancery for relief, which court had no jurisdiction of the matter, we express no opinion on the merits of the controversy between the parties. The decree below, dismissing complainant’s bill, must be affirmed, but solely upon the ground that the Court of Chancery was without jurisdiction of the cause.”

It is to be noted that the Court of Errors and Appeals did not either sustain or reverse the law as pronounced by the learned Vice-Chancellor. That case is, however, reasonably comparable to the present case and although dicta the rationale of the Vice-Chancellor’s argument is most sound. The reasoning could as well apply here.

As has been generally said, the right to maintain the action must not be confused with the right to share in the distribution of the amount recovered. Still, it is basic and academic that the damages which could be recovered are only such damages as are sustained by all of a class of persons who could participate in a prospective distribution. While the act does not so state, it is clear that the intent of the legislature, gathered from the act and its judicial interpretation, was not to make the right of action joint, but solely in the first party or class named, or failing such party or class, in the next class, to the exclusion of the third. The right to sue vests in the several classes listed successively and upon failure of one class alternatively in the succeeding class.

Since the right of action is not joint, but solely successive in the order of the classes named in the statute, the mother of the deceased has no interest in any recovery, nor is she entitled to join as a party plaintiff.

Defendant’s motion to strike will- be granted.


source: Caselaw Access Project

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANTIMO RUSSO, PETITIONER, v. WRIGHT AERONAUTICAL CORPORATION, RESPONDENT.
    Decided January 17, 1947.
    For the petitioner, TP ox & Krieger (Nathan Rabinowitz, of counsel).
    For the respondent, John W. Taylor.

   This is a proceeding brought by the petitioner, Antimo Eusso, against Wright Aeronautical Corporation, respondent, seeking compensation under and by virtue of the provisions of R. S. 34:15-1, et seq.; N. J. S. A. 34:15-1, et seq., “prescribing the liability of an employer to make compensation for injuries received in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and' compensation thereunder/’ together with the several acts amendatory thereof and supplemental thereto.

A petition and an answer thereto were duly filed with the secretary of the Workmen’s Compensation Bureau at his office in Trenton, Hew Jersey. In regular course the cause came on for trial before me, John J. Stahl, a deputy Commissioner of Compensation, at the Bureau Chambers, 158 Ellison Street, Paterson, Hew Jersey.

The present proceeding is grounded upon a claim involving a seminoma or cancer of the petitioner’s right testicle. The vital issue in controversy is confined to the question as to whether the course of the cancer was influenced, hastened or aggravated by an accident arising out of and in the course of the petitioner’s employment with the respondent.

The burden of proof rests upon the petitioner to establish his right to an award of compensation from the respondent by a fair preponderance of the evidence.

, The facts as developed by the evidence reveal that the petitioner, Antimo Busso, was regularly employed by the respondent at its plant in Paterson, Hew Jersey, as an engine packer, receiving wages at the rate of $37.18 per week. Prior to such employment he was examined by one of respondent’s physicians, and his health and physical condition were found good. On the day of the accident, on or about April 28th, 1943, while petitioner and four co-workers were pushing a crated motor on a dolly (a small wheeled truck) up an incline to a loading platform, the surface of which was uneven, the dolly struck a bump in the floor, whereupon petitioner’s coworkers let go, leaving petitioner with the entire weight, and although the box did not strike him, the sudden jolt and vibration of the same forced him backwards and his legs crossed, followed by a sharp pain in the right testicle and lower spine. He nearly fell to the floor, but instead landed in a crouched position, balancing himself with his outstretched hánd, which prevented him from falling on his back. He arose and then sat and rested on a box nearby for about ten minutes. He refrained from heavy work for the rest of that day and went home at 11:00 o’clock in the evening, his usual quitting time. The next day he returned to work with pain in the right testicle and back, but did no heavy work. He observed that the right testicle appeared as though it were swollen. The following day he reported the accident to his employer at the respondent’s plant hospital, at which time the plant physician advised him to remain at home for five days and to apply an ice bag to the scrotal area, which he did for that period. At the expiration of the five days, another physician in respondent’s employ examined him, who advised that he wear a supporter or strap. The pain became worse but petitioner nevertheless continued to work on and off until May 27th, 1943. The pain and swelling of the right testicle became worse. He consulted Dr. Theodore Bender on June 25th, 1943, who, on July 16th, 1943, operated upon him and removed his right testicle. He remained in the hospital subsequent to the operation for fourteen days, receiving post-operative treatment and deep X-ray therapy. In January, 1944, petitioner entered the employ of the May bfovelty Company as a clothing operator, doing very light work, but because of transportation difficulties to and from work, petitioner quit his job. He then undertook employment with the London Vest Company, but had to cease work on account of his condition and gradual decline in health since the accident, with a loss of weight from 205 to 175 pounds. On cross-examination, petitioner reiterated that he was pushing the box on a dolly when the dolly became stuck in a hole or crevice in the floor, which caused the box to swing around so that he had all the weight on it and this forced him back, giving him a jerk backwards. He stumbled backwards, lost his balance, and was barely able to avoid falling flat on the floor by supporting his body on his outstretched hand. He identified a statement taken from him by one Pauline Howarth, a representative of respondent’s insurance carrier, containing his signature, marked B-l for identification, dated May 26th; 1943. Another statement signed by him in the presence of one DeCotis, another representative of the carrier, dated September 9th, 1943, was shown him, marked E-a for identification.

Dr. Theodore Bender, a distinguished surgeon, had petitioner under his care at the Bamert Hospital in Paterson from July 15th to July 31st, 1943. He testified that he first examined petitioner on June 25th, 1943. At this examination he found the right side of his scrotum was about two and one-half times the normal size. There was marked oedema of the entire scrotal wall. The testicle itself presented an irregular type of enlargement on the right side. The cord coming from this testicle was thickened and there was an impulse that came through the external ring through coughing, which was not very great. There was some evidence of swelling in the inguinal region which was not marked. Dr. Bender made a tentative diagnosis of tumor of the right testicle with a possibility of a potential direct hernia, and recommended hospitalization. Petitioner was admitted to the Barnert Hospital on July 15th, 1943, and on July 16th, Dr, Bender performed an operation upon him which revealed that he had a tumor of his testicle. At the operation the entire right testicle was removed with a section of the scrotum and other parts. The entire testicular cord was dissected upward and the. lymph glands along the external iliac artery were removed. The doctor’s diagnosis was seminoma, that is, an embryonal adenocarcinoma. In answer to a hypothetical question embracing the essential facts as developed by the testimony, Dr. Bender said that the condition from which petitioner suffered prior to the accident could have been aggravated by the accident, and that any tumor can be aggravated by injury. In explanation he said that the injury would cause an oedema and swelling, necessarily increasing the vascularity at that area in the amount of total blood volume reaching that area in a given time so that the feeding supply to any new growth at that particular time would be increased. He also said that an injury to a pre-existing cancer could induce a displacement of cancerous cells, either into the lymphatic channels or intp the blood vessels into and through the capillaries and disseminate such a tumor along that lymphatic course or along that vascular course and force it inward into some of the venules which would carry them up straight and into the right side of the heart and out into the lungs. On cross-examination, Dr. Bender said that in his opinion there were tumor cells existent in petitioner prior to the accident. These are often simply cell nests, but reiterated that the accident may have or could have contributed to the growth of these cells, and the rapidity of the growth and the dissemination of the growth and that the accident could have aggravated or contributed to an increase in the growth. His attention was called to a notation made on the hospital operative record contained in Exhibit P-1 in evidence, to the effect that there was no presence of recent or past injury, but stated that such evidence of injury could very well have passed during the five weeks of intervening treatment under ice caps to which petitioner had been subject prior to the date of his examination. The fact is that Dr. Bonder first examined petitioner on June 25th, which was more than seven weeks after the date of injury.

Dr. Gay Kim, a pathologist at St. Joseph’s Hospital, Paterson, testified that he had considerable experience with tumors and that a seminoma with which petitioner was suffering is a tumor. In answer to the hypothetical question, he stated that indirect trauma would cause the barrier which encased the seminoma to be broken down and such trauma is sufficient to cause spread of the cancer. This could result, he said, from a torsion or twisting of the testicular cord and a squeezing of the testes on the crossing of the legs. He explained that the twisting of the cord causes shutting off of the blood supply which, in turn, causes destruction of tissue. When the organ has been damaged there follows such destruction of tissue, which breaks down the barrier holding the cancer or tumor and allows the cancer to spread. In this sense the cancer became aggravated. Hormally a testicle is encased in a capsule containing several layers of tough tissue and if this barrier is broken down, a cancer already existant will spread to other parts of the body.

Dr. A. Hobson Davis, a specialist in pathology at the Paterson General Hospital, testified that in his opinion the accident suffered by petitioner caused an injury to the testicle and this injury hastened the growth of the tumor. A trauma may hasten the growth of cancer and by metastasis spread to other parts of the body by the cáncer cells being thrown into the lumen of the blood stream. Upon the basis of a hypothetical question, he stated that in all probability the accident suffered by petitioner hastened the growth of the cancer with the resulting metastasis. On cross-examination, he stated that the trauma aggravating a tumor of the testicle need not be by direct blow to the testicle, and that a torsion or twisting of the cord or testis would be sufficient, such as crossing the legs, which would cause force or pressure to the cord of the testis containing the tumor. He further testified that trauma to the testicle would ordinarily cause a swelling within twenty-four hours.

Dr. Samuel Kleiner, a specialist in internal medicine, examined petitioner on May 9th, 1946. At that time he found a generalized widely spread carcinoma causing petitioner 100% total permanent disability. He stated that the petitioner, upon the basis of the hypothetical question, had suffered a torsion of the testis in crossing his legs, which caused exudation of fluid from the testis into the scrotal sac, lighting up a quiescent tumor in the sac. He testified that the etiology or cause of this type of tumor is unknown.

On behalf of the respondent, there was produced Dr. Dominick Marini, petitioner’s family physician, who testified that he examined petitioner on April 30th, 1943. He received a history from petitioner that he had pushed a box two days before that date and felt severe pain in the right testicle. Examination by him revealed.a swollen and painful right testicle. There was no history given of a direct blow, he said, and he did not recall whether petitioner reported crossing his legs at the time of the accident.

Respondent also produced Dr. Philip Simon, general surgeon, who testified that he was consulted by petitioner on May 20th, 1943. He obtained a history from him that he was pushing a heavy box when he injured his testicle. On examination he found the right testicle enlarged and sore.

Dr. "William J. Hoffman appeared for respondent. He testified that he was a specialist in cancer diagnosis and treatment. He examined petitioner on July 26th, 1943, at the Barnert Hospital in Paterson in the presence of Dr. Bender. He obtained a history that on an evening in April, 1943, petitioner and three other men were pushing a dolly loaded with a ease. The dolly swung around and struck his body and he felt a sharp pain in the right side of his back and left testicle. The next night the pain was quite severe over the crest of the right ilium and the right testicle felt hard and enlarged, and was about twice its normal size. He was advised at the plant to apply ice packs to the testicle and wear a suspensory and rest. After working three weeks, petitioner had to quit on account of the pain in the testicle. He returned again but then had to discontinue. Petitioner then consulted Dr. Philip Simon, who made a diagnosis of hernia and who referred him to Dr. Barlow, respondent’s physician, who suggested that petitioner be admitted to the hospital for incision and drainage, which petitioner declined. Later petitioner consulted Dr. Bender. Petitioner, he said, gave no history of injury to the testicle and no history of a twisting injury. On the date of his examination he found that the right testicle and cord had been removed. He found no evidence of the metastasis or spread of the disease. He examined the specimens of his tissues which showed a typical malignant tumor of the testicle known as a seminoma, with areas of necrosis. It was his opinion that petitioner suffered from cancer of the right testicle, which was neither caused nor aggravated by the episode or mishap. He stated that an aggravation of cancer of the testicle could be expected from a severe blow or trauma, but such aggravation did not take place in this case in his opinion, for a seminoma to produce a testicle two and one-half times the normal size requires considerable time, probably a year or at least six months. He conceded, however, that under certain circumstances, a seminoma may be aggravated by trauma, but such trauma would have to be of a crushing nature to the tissues. He did not consider a tear of the testicle like torsion sufficient to aggravate a pre-existing seminoma or that any indirect trauma would be sufficient to cause an aggravation or displacement of cancerous cells.

Before the completion of the hearing in this matter, petitioner died on May 16th, 1946. Petitioner’s widow, Sue Biisso, was subsequently called. She was married to the petitioner more than nine years and had one child. She testified that on the night of the accident when petitioner returned home, she found that his right testicle appeared swollen, painful and red. She applied a preparation known as “Benguay.” The next day her husband went to work and returned home at 11:00 T. m., and upon inspection she found the testicle was then more swollen and painful, and she applied ice packs to it fifteen minutes a day for six days. Several days later she accompanied her husband to Dr. Marini, and at his suggestion, petitioner took hot baths for a week or so in order to reduce the swelling. He was confined to his bed most of the time when home, and had to be sustained on walking. Subsequently, he consulted Dr. Bender. Prior to the date of the accident, from her observation, petitioner was in good health, and from a physical standpoint, she found nothing wrong with him; that before the accident their sexual relations were normal, but after the accident there were no sexual relations because of his painful and swollen right testicle. She further testified that medical, surgical and hospital expenses were incurred in the amount of $1,992. She identified the several bills covering the same all of which were paid in full by petitioner. On cross-examination she stated that she was present at the time when a Miss Hayworth, a representative of the Liberty Mutual Insurance Company called, and took a written statement from petitioner, and another statement taken from -petitioner by Mr. DeCotis, also a representative of the insurance company.

There were introduced into evidence by respondent Exhibits R-2 and R-3, Exhibit R-2 being a statement signed by petitioner, dated May 26th, 1943, and Exhibit R-8, being a statement signed by petitioner, dated September 9th, 1943. Exhibit R-3 sets forth that on or about May 3d, 1943, five men, including petitioner, were pushing a box containing an engine, the box having been placed on a dolly, and four of the five men who were in charge of it were in the rear of the box, pushing it, while one man stayed in front in order to guide it. It was intended to push the engine on to a loading platform from which place it was to be loaded on an auto truck. The statement continues as follows: “The dolly must have caught on an uneven spot of the wooden floor, for the box twisted at an angle of about 45 degrees. Inasmuch as I was pushing the box with my two hands on the box and either my right or left shoulder, the twisting which was at my end, caused me to step backward on my heels, causing my knees to bend, and in order to regain my balance and prevent myself from falling, I placed my hands downward reaching to the floor with the palms downward. I did not fall to the floor except that I was in a crouched position, with knees bent, and legs in walking stance and not crossed. At the time the box twisted I was compelled to move backward. I was not struck in any way by the twisting box. The only part of my body that touched the box that was being pushed was my two hands and my shoulders. At no time either while pushing or at the time the box was twisted did I receive a direct blow from the box to my chest, stomach, back, groins, legs or any other part of my body. At no time did my body touch the box except for my hands and shoulder. At the time I stepped backward I felt pain in my right groin and the center lower back, about a point that I would designate as the end of my spine. As soon as I straightened out of the crouched position, I walked around a bit and the pain disappeared. The remainder of the evening I continued working with no pain in any part of my body. I continued working the next day with no apparent ill effects, however that evening when I came home I began feeling pain again in my groin and back. I asked my wife to give me a rub down with ‘benguay’ and as I prepared myself for bed by undressing, I noticed for the first time that I had an enlarged right testicle. This was the first time I had noticed anything unusual in the region of my scrotum and testicles. I had had no previous pain in either my scrotum or testicles. The only pain I had suffered with was confined in the upper region of my right groin and center lower back, I had no other pain in any other region. * * * On May 5th, 1943, I awoke and noticed that my testicle had enlarged in size overnight, and that I was beginning to have pain in my scrotum and right testicle. That morning I reported to plant 2 hospital and advised one of the company nurses that I sustained an injury several days previous.”

By a clear preponderance of the evidence in this case, it would appear that Russo, prior to the accident and unbeknownst to himself, was a cancer victim, suffering from a seminoma, a type of testicular malignancy; that the injury sustained by him in the accident on April 28th, 1943, consisted of an indirect trauma to his right testicle, when his legs crossed as he was jerked forcibly backwards by the loaded dolly; that symptoms and signs of injury manifested themselves promptly thereafter, to wit: soreness and swelling of the right testicle to such a degree as to require medical attention and cessation of work within a few days following the said accident; and that the pre-existing cancer of the right testicle was thereby accelerated and aggravated, necessitating its removal by surgical intervention on July 16th, 1943, together with metastasis and dissemination to other parts of the body, resulting ultimately in permanent and total disability.

To warrant a recovery under the Workmen’s Compensation Act it is not necessary that the injury resulting from the compensable accident be the primary cause in initiating the disability. The essential requirements of the statute are fully satisfied if, from the evidence it appears that the accidental injury, acting as an exciting cause, lights up a preexisting disease, and thereby contributes to the disability or death. Voorhees v. Smith Schoonmaker Co., 86 N. J. L. 500; 92 Atl. Rep. 280; Winter v. Atkinson Frizelle, 88 N. J. L. 401; 96 Atl. Rep. 360; Lundy v. Brown & Co., 93 N. J. L. 469; 108 Atl. Rep. 252, and Geizel v. Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328.

While the etiology of cancer is still obscure, like most any other disease it may be aggravated by trauma. Recoveries under the statute have been made in this state as well as in many other jurisdictions for disability or death due to cancer aggravated by an accidental injury. Voorhees v. Schoonmaker Co., supra; Griffith Piano Co. v. Court of Common Pleas (Supreme Court), 134 Atl. Rep. 922; Zehrer v. Robertson, 17 N. J. Mis. R. 53; 4 Atl. Rep. (2d) 854, and Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396.

There was a sharp conflict in the medical testimony on the vital question as to whether the accident in fact aggravated the pre-existing seminoma of the petitioner’s right testicle. However, in light of the symptomatology, the surgical intervention for removal of the right testicle, and the petitioner’s gradual decline in health following the accident, it would seem that the greater weight of the medical testimony preponderates in favor of the petitioner’s medical experts to the effect that there was such aggravation.

During the pendency of the present proceeding the petitioner died, to wit: on May 16th, 1916. In view of this circumstance, an award of compensation would be proper in favor of the petitioner up to the date of death, including the fixing of permanent disability. Bollinger v. Wagaraw Building Supply Co., supra. The precise situation arose in the case of George T. Newell, Jr., Inc., v. Workmen’s Compensation Bureau, 10 N. J. Mis. R. 405; 159 Atl. Rep. 316, wherein the Hew Jersey Supreme Court dealt as follows: ^The next point is that there was no proper party petitioner at the time of the award, because petitioner had meantime ■died. We are of the opinion that, under the statute, it was proper to proceed under the petition filed to make suitable award to the date of petitioner’s death.”

The burden of proof which rests upon the petitioner to establish a right to compensation has been met. .g; g« t)i # í|í gc *

It is, therefore, * * * adjudged, determined' and ordered, that judgment be entered in favor of the petitioner and against the respondent. « * * * # * #

John J. Stahl, Depuly Commissioner,


author: Bbown, S. C. 0.

text:
    MAUDIA M. GABRIEL, PLAINTIFF, v. LAWRENCE M. GLICKMAN, INDIVIDUALLY, AND JEROME LIQUORS, INC., DEFENDANTS.
    Decided January 28, 1947.

      For the plaintiff, Ghazin <& Ghazin.

    For the defendants, Fred Saperstein.

   Bbown, S. C. 0.

The plaintiff moves to strike the defendants’ answer on the ground that it is sham and frivolous and the separate defenses therein on the ground that they are sham and frivolous and in law do not constitute a sufficient answer. The suit is brought to recover a broker’s commission alleged to be due under a contract made between the defendants and the buyer, Dieran Goulian. The contract was in printed form with spaces which were filled by typewriting. Newton G. Gabriel was the broker who brought about the sale and thereafter assigned his claim to the plaintiff. The suit is based on clause 10 of the contract which provides:

“It is mutually understood and agreed between the parties that Newton G. Gabriel of No. 6701 Boulevard East, West New York, New Jersey, is the only broker who brought about this sale and is entitled to the commission hereunder at the rate of seven per cent of the purchase price to be paid by the seller.”

The contract provided for the sale price of $13,500; $1,500 to be paid on the signing and delivery of the agreement of sale and the remainder on the delivery of the bill of sale-There was a clause in the agreement by which the seller guaranteed the gross business to be $800 weekly, with a trial period of one week for the purchaser to tally the receipts and if found to be less, the purchaser was to be repaid the $1,500' deposit. Both parties agree in substance the guarantee was-not fulfilled. The seller claiming that he “improvidently neglected to register about $125 worth of sales.” The defendants admit they entered into the written contract and it. contained clause 10 but they say they had an oral understanding with the plaintiff’s assignor that his commission was to-be five per centum instead of seven as written in the contract and the commission was to be paid “only if and when title to said business was passed, a bill of sale for same was actually-executed and delivered, and the consideration thereof paid in full.” Although the deposit of $1,500 was received by the-defendants, the remainder of the purchase price was not paid as the weekly guarantee of sales was not fulfilled. The contract contained no provision as to the time the broker’s commission was payable. In the separate defenses in the answer the defendants allege the broker “fraudulently, and with intent to deceive and defraud these defendants, was responsible for and did succeed in having said clause 10 drawn and worded as-described in paragraph 2 of the complaint.”

The broker in his affidavit, on the motion to strike, denies the allegations of fraud and the defendants in their answering affidavit explain the manner in which the fraud was alleged to have been committed at the office of the lawyer where-the contract was signed as follows:

“I, (Glickman) was handed a copy of the contract and I examined the same only so far as related to the terms of the amount of the purchase price and the manner of the payment thereof, relying as I did, so far as the other terms and conditions were concerned, upon said Newton G. Gabriel, who at the time said to me ‘Don’t worry about the terms of the contract, I have- protected you! You are the one who is paying my commission, aren’t you?’ I thereupon signed thecontraet.”

There appears no power granted by the defendants to the broker to represent them, as their agent, to prepare the contract. His business was to effect a sale and that was done when the contract was signed by the parties. The statement alleged to have been made by the broker does not relieve the defendants from their liability in signing the contract. It was their duty to know what they were signing.- They evidently did know for they accepted the deposit and during the trial week of sales they evidently had the contract and made no objection to the broker or the buyer. If there was a failure on their part to know the commission was seven per centum it was due to the defendant’s negligence. The contract was binding between the buyer and seller and the broker has a .good cause of action thereon. R. S. 2:26-3.6; N. J. S. A. 2:26-3.6; Tapscott v. McVey, 82 N. J. L. 35; 81 Atl. Rep. 348; affirmed, 83 N. J. L. 747; 85 Atl. Rep. 343; Holt v. Insurance Co., 76 N. J. L. 585; 72 Atl. Rep. 301; Mendel v. W. C. T. U., 1 N. J. Mis. R. 605. Under the law the broker was entitled to his commission when the agreement of sale was signed. What the defendants are trying to do in this case is to change and vary the terms of a written agreement by parol evidence, though they knew the kind of agreement they were signing and had full opportunity to read the •contents and evidently knew when they signed it was a binding agreement between the parties thereto. There are eases where oral evidence is admissible to vary the terms of a written instrument. This case is not within that category. A rescission of a contract on the ground of fraud is indispensable only when the design is to vacate its entire obligation. In the absence of ambiguity in a written agreement which is complete, oral evidence cannot be introduced to explain or vary the agreement. If, through mistake or fraud, an agreement in writing does not express the contract which the parties intended to make, the remedy is in equity to reform it, but until it is so reformed it is unassailable by parol testimony. Van Horn v. Van Horn, 49 N. J. Eq. 327; 23 Atl. Rep. 1027. See, also, Naumberg v. Young, 44 N. J. L. 331. In the case last cited it was held, the only criterion of the completeness of the written contract as á full expression of its terms is the-contract itself. If the written contract purports on its face to be complete, parol evidence will not be received to add another term. The contract in the instant ease was complete “on its face.” The case of Alexander v. Brogley, 62 N. J. L. 584; 41 Atl. Rep. 691; affirmed in 63 N. J. L. 307; 43 Atl. Rep. 888, cited by the defendants in support of their motion does not apply to the contract now being considered. In the Brogley case the defendant was induced to sign the paper, without knowing its contents, by the representation of the-agent that he wished him to sign for the purpose of ascertaining how Brogley Bros., spelled their name. The party signing had no notice he was entering into a contract. He was under no duty to read the instrument and ascertain its contents; therefore, parol evidence was held to be admissible. In the-instant case the facts are different. The defendants knew they entered into a contract; they admit they had this knowledge. They had the opportunity to read the contract before-signing and did so to a great extent. The case of Dunston Litho. Co. v. Borgo, 84 N. J. L. 623; 87 Atl. Rep. 334, follows the principle decided in the Brogley case, supra, and points out the distinctions similarily to those above stated. In Williams v. Leisen, 72 N. J. L. 410; 60 Atl. Rep. 1096, plaintiff sued on a writing to recover the price of books sold and delivered. Defendant swore he did not read the paper because the plaintiff’s agent fraudulently told him he wanted some influential citizen to endorse the work and it was for that purpose he signed his name: Said the court: “it was plainly the duty of the defendant to read the instrument to-inform himself of the bargain if he supposed a sale was contemplated, or to inform himself of the representations he would make to others to induce them to become purchasers-if he supposed only a recommendation was in view. We think a verdict for the plaintiff should have been directed.”

In Alexander v. Ferguson, 73 N. J. L. 479; 63 Atl. Rep. 998, the defendants entered into a written contract for the-sale of merchandise. They attempted to prove the agent fraudulently misrepresented the paper was an agreement to-act as agent and depository for the plaintiffs and that defendant signed it without reading other than the first few lines. The court said:

“In Alexander v. Brogley, The defendants did not know they were signing contracts, and therefore were not called upon to exercise that vigilance which such a transaction reasonably demands.’ Here the defendant knew he was signing a contract of some kind, * * * he chose to sign it without a full examination and, as in Williams v. Leisen, must be held bound by the contract as he made it * * *. The failure to carry out this oral agreement of the agent is urged as a defense. The written contract cannot be varied by evidence of this character.”

The cases of Steiner Manufacturing Co. v. Kochaniewicz, 3 N. J. Mis. R. 437; 128 Atl. Rep. 608; Paruch v. Rasiewicz, 124 N. J. L. 356; 12 Atl. Rep. (2d) 141, and Kinwell v. Skelly, 130 Cal. 555; 62 Pac. Rep. 1067, preclude the admission of parol evidence to vary the terms of a written instrument on the ground of fraud. The Skelly case is quite similar to the instant case. See, also, Barr v. Chandler, 47 N. J. Eq. 532; 20 Atl. Rep. 733, where it was held, “parol evidence is not admissible to vary or contradict the terms of a written instrument and evidence of fraudulent misrepresentation as to its effect to induce its execution must be clear and convincing to warrant a disregard of its terms.” On the issue presented through the third separate defense in the answer, that is to say, the plaintiff acted in behalf of both parties in the case to the detriment of the defendants without disclosing those facts to the defendant, if proven by the greater weight of the evidence, would preclude the broker from recovering his commission. Carpenter v. Overland Tire Co., 102 N. J. L. 196; 130 Atl. Rep. 665. The rules of pleading require the pleadings to contain a precise statement of all the material facts which constitute the cause of action or the defenses thereto. The statement should be direct, precise, specific and not argumentative. Sufficient facts should be stated to apprise the adversary fairly of the stated facts which the pleader intends to prove. The third separate defense does not appear to fulfill those'requirements of procedure. Hess v. Public Service, 84 N. J. L. 329; 86 Atl. Rep. 951; Schwartz Bros. v. Evening News Publishing Co., 84 N. J. L. 486; 87 Atl. Rep. 148.

The motion to strike the answer and all of the separate defenses is granted except the third separate defense. The defendant will be allowed until February 7th, 1947, in which to move to amend the third separate defense. If proper amendment is not pleaded within that time the motion to strike will be granted, as to this defense.


author: Drewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    MATTHEW J. SAVAGE, BY HIS NEXT FRIEND, JOSEPHINE ALEXANDER, PETITIONER-APPELLEE, v. OTIS ELEVATOR COMPANY, RESPONDENT-APPELLANT.
    Decided January 29, 1947.
    For the respondent-appellant, Albert E. Bchober.

    For the petitioner-appellee, O’Erien^ Brett & O’Brien.

   Drewen, C. P. J.

Petitioner operated a milling machine in appellant’s Harrison plant. The working of the machine was such as to cause the accumulation around its base of metal particles, thrown off in quantities sufficient to require their disposal from time to time. This was effected by means of compressed air, released from a hose, which blew the accumulation through an opening into a lower chamber designed to receive it. Petitioner’s machine was one of a number in the department, each having its own operator and each equipped with a compressed air hose for use in the manner described. It was not the duty of the operator to remove the accumulation; that function was performed at all machines by one especially assigned thereto, in this instance one Brown. Each hose was equipped with a nozzzle and a “button.” The pressing of the button released through the nozzle a column of air of ninety pounds pressure. The proof shows that while in the hands of Brown, either during the performance of his assigned duty at petitioner’s machine or otherwise, the hose was so manipulated by Brown that the air pressure was discharged near enough to the side of petitioner’s head to cause a puncture of the eardrum, with ensuing chronic discharge from the ear.

The accident is described in the claim petition as follows: “Petitioner was working at his machine when a fellow employee using an air hose accidentally blew it in petitioner’s face and caused injury to his left ear.” Though the allegations of the claim petition are thus grounded on accident, petitioner’s evidence presents a case of horseplay. And the pleaded defense is that “Any accident suffered by petitioner was due to horseplay and did not arise out of and in the course of his employment.”

Petitioner in his testimony seems strangely uncertain whether his version of the happening should be horseplay or accident. He gives it both ways. He contradicts himself and quibbles; but from what he told the nurse, the doctor, the investigator and others immediately and shortly following the occurrence, taken together with all attendant circumstances, there is no doubt in the mind of this court that horseplay it was. It may be that petitioner’s equivocation was due to a consciousness of having participated in the foolery himself, but there is nothing to show that he did. The Deputy Commissioner likewise decided that the case presented was one of horseplay; and after a recital of proofs relating to the question of a foreman’s knowledge of the prior misuse of the hose, he declares in his finding that “under these facts our eases have held that an injury received, even though in horseplay, is compensable.” It is our opinion that the proofs disclose no evidence of such prior knowledge attributable to respondent; and in the view we take of the ease it is of no consequence whether it does or not.

The decisions in this state develop no final principle for application to this case. We must not be carried away by the term “horseplay,” nor by assumptions of a rule that in cases bearing that label a showing is required that the employer was aware of conditions conducive to accidents like that which did result and that he failed to suppress them. The briefs argue this point with much earnestness, but upon texts gleaned entirely from obiter dicta. As indicated, there is no clear authority on the subject in this state. We are not unmindful of the decision of the Court of Errors and Appeals in Hulley v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007, and of the very recent decision of the Supreme Court in Budrevie v. Wright, 135 N. J. L. 46; 50 Atl. Rep. (2d) 147, but those cases deal with horseplay in a thoroughly different sense. Here we have a dangerous instrumentality which is a feature of the working environment. It is attached to the machine at which the employee works. It is of such a nature that but slight deviation from its most careful use is enough to create peril for anyone nearby. The margin between safe and unsafe is so narrow that the potentiality for harm may be described as ever imminent. What this potentiality is should require no better illustration than the facts before us. There are cases in other jurisdictions that deal with the sportive use of an air hose upon a more drolly selected orifice, with resultant death to the jester’s victim. Why in a case like this should the petitioner be required to show that the employer had knowledge of the previous misuse of the dangerous device? How many antecedent inflictions of harm must there be? The only effect of such previous knowledge is to inform the employer of a condition that calls for correction. But the employer here knew all there was to know about the evil possibilities of the air hose. The testimony places that beyond dispute. A foreman and an assistant foreman called by respondent both say that the strictest orders were given to all employees having access to an air hose against the misuse thereof, together with the warning that any resort to the hose in foolery or for any other purpose than its legitimate and intended one would result in the offender’s immediate discharge. The safety-man in the department where petitioner worked testified that he “knew that the careless use of it [the hose] might be dangerous to anybody in the neighborhood.” In a word, common sense rejects the applicability of the rule of employer’s prior knowledge to the facts in this record.

Consider the genuine difference between knocking a hat from a fellow-worker’s head (Hulley v. Moosbrugger, supra,), or the jostling about in a freight elevator while returning from lunch (Budrevie v. Wright, supra), on the one hand, and the discharge upon a fellow-worker of a powerful air-gun under circumstances like those in the present case, or the tossing upon a Welding-flame of inflammable liquid used by workmen in the plant (Staubach v. Cities Service Oil Co., 126 N. J. L. 479; 19 Atl. Rep. (2d) 883), on the other hand. We think there is a definite principle inherent in this distinction. In the first category injury is the luckless and unforeseeable result of conduct having relation to nothing in the work or the work’s conditioning, while in the second category natural forces ingredient in the worker’s equipment or environment, or both, are recklessly loosed from control and made free to pursue a devastating course they are but too likely to find. The present question comes down to this: Does the air-gun have so close a relation to the working milieu that injury resulting from its intentional misuse, so easy of occurrence and so vividly within the employer’s apprehension, can be said to have arisen out of and in the course of the employment? We think it does.

But what, specifically and apart from all else, is to be said of that element of the ease which comprises the truant behavior of a fellow employee, without which no injury would have occurred? In other jurisdictions throughout the country the clear declaration is made that where men work together in numbers, their employment is conditioned by human nature’s irresistible penchant for monkevshines. In the absence of express statement in Hew Jersey, it will not be amiss to quote what learned jurists elsewhere have said. Tn Leonbruno v. Champlain Silk Mills, 229 N. Y. 470; 128 N. E. Rep. 711; 13 A. L. R. 522, Judge Cardozo, for the Yew York Court of Appeals, said: “English eases hostile to the award * * * are inconsistent, it would seem, in principle with later rulings of the House of Lords (Thom v. Sinclair [(1927), A. C. 127] * * *. They are certainly inconsistent with the broader conception of employment and its incidents to which this court is now committed;” that the true facts of factory life must be recognized; that the apple victim “was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment;” that factories “have crowded contacts” and resulting injuries “are not measured by the tendency of such acts to serve the master’s business,” and that such horseplay arose out of the employment, as an incident thereof, and that innocent victims must be protected by compensation awards.

In Cassell v. U. S. Fid. and Guar. Co., 115 Tex. 371, 392; 283 S. W. Rep. 127; 46 A. L. R. 1137 (1926), it is said that the court must recognize the “wellnigh universal human craving for fun * * * we are forced to consider these pranks as a hazard which the employee required to work with others must encounter in the performance of his duties, and hence such pranks constitute a risk reasonably inherent in or incident to the conduct of the employer’s business.”

Chief Justice Eemy of Indiana said, in Chicago I. and L. Railway Co. v. Clendennin, 81 Ind. App. 323; 143 N. E. Rep. 303 (1924) : “It is a matter of common knowledge to employers of labor that men working together, or in near proximity to other workers, will indulge in moments of diversion from work to play pranks on each other.” In Malthais v. Equitable Life Assurance Society, 93 N. H. 237, 242; 40 Atl. Rep. (2d) 837 (1944), Chief Justice Marble of Yew Hampshire said: “Such lapses are conditions incident to the service,” and that participation is not a defense, as only those faults specifically named in the statute as a bar to recovery, such as serious and willful misconduct, are to be considered, and that the employee “was guilty at most of contributory fault.”

In Pacific Employees Insurance Co. v. Industrial Accident Commission, 26 Cal. (2d) 286; 158 Pac. Rep. (2d) 9 (1945), Justice Edmonds of the Supreme Court of California said that considering “as we may, the propensities and tendencies of mankind and the ordinary habits of life, it must be admitted that wherever human beings congregate, either at work or at play, there is some frolicking and horseplay. Any doubt upon that subject *■ * * must be resolved in favor of compensability.”

In Gates Rubber Co. v. Industrial Commission, 112 Colo. 480; 150 Pac. Rep. (2d) 301, 304 (1944), Chief Justice Young of Colorado said, concerning the non-participating innocent victim, that as to such a claimant the accident resulted from “the conditions under which the business is carried on.” (The foregoing excerpts are taken from “Assaults and Horseplay under Workmen’s Compensation Laws,” issued by Law Society Journal of Massachusetts, Boston, August, 1946.)

While these pronouncements, stated as they are in the abstract, are not in harmony with the concrete holdings of the Moosbrugger and Budrevie decisions already cited, they are in fullest accord with the decision of our Supreme Court in Giracelli v. Franklin Cleaners and Dyers, Inc., 132 N. J. L. 590; 42 Atl. Rep. (2d) 3. Indeed, that decision goes farther than they do, because it gives to a purely adventitious casualty suffered by an employee a complicity wide enough to include “human behavior as we find it,” not only within the boundaries of the employer’s establishment but beyond that, out into the circumambient world. In the Giracelli case the petitioner, a young woman, was manager of one of her employer’s branch stores. A customer, coming there ostensibly to claim some garments that had previously been left for cleaning, pursued her into the rear room of the store and there ravished her. The injury sustained was declared to he compensable. The Supreme Court’s theory of compensability was that the work, its location and the circumstances surrounding it, had exposed the employee to a possible fate like that she suffered. But in the present instance it can be said, and with plainer cogency of fact, that the employer, having selected petitioner’s fellow worker, placed into his mischievous hands an instrument whose mischievous use was wellnigh bound to do the harm it did, the eventuality itself being to the employer not entirely unforeseen. Thus, it seems to us, the distinction between this and the apparently contrary decision of our higher courts already considered, is completely demonstrated.

It is adjudged by this court that petitioner’s injuries arose out of and in the course of his employment.

A careful examination of the medical proofs results in a finding that accords with that in the Bureau. The respondent sought to show an intervening efficient cause, that the injury resulting from the accident complained of was completely cured and that petitioner’s present condition is due entirely to an injury independently sustained at a subsequent time. These are the facts: The attending specialist was Dr. Dias. He found that the perforation of the eardrum had healed and he discharged petitioner as cured. This was on June 8th, 1944, about a month following the accident. On June 20th petitioner returned to Dr. Dias with a renewed discharging of the ear and the doctor found that the drum head had broken down again with an abscess. The subsequent history of the specialist’s treatment, which extended into March, 1946, is not presently in point. The controversy turns on the fact that when petitioner returned to Dr. Dias on June 20th he informed the doctor that on June 18th he had been swimming in Olympic Park Pool, in the City of Newark. It is to this incident entirely that the respondents would ascribe the present disability. The evidence justifies no such conclusion. The accident, the related injury, and the ensuing disability were all clearly established. To say that the incident of petitioner’s swimming in a pool some forty-eight days thereafter must be taken as the supervening efficient cause would be the purest conjecture. Of course there ensues the usual dispute of physicians, but we are far more impressed with the testimony of those who ascribe the disability to the orginal injury, one of whom, Dr. Dias, is the only physician who actually attended petitioner throughout the long period of his treatment. The testimony of this physician is not contradicted, that when he again saw petitioner on June 20th the rupture of the eardrum had recurred and the place of the new rupture was identical with that of the scar of the former one. And he said also that scar tissue breaks down. A swim in a pool is normal, ordinary exercise, though it evidently was too much for the predisposing weakness of the damaged ear. Moreover, there is nothing in the evidence to show whether petitioner’s swim was more than a single plunge. There is certainly nothing to justify the acceptance of the unqualified fact of a swim in a pool as establishing a new efficient cause, in the face of what Drs. Dias and Koppel Say about the origin and nature of the repuneture, plus the proofs of 'the primary injury. There is no justification for any change in the findings of the Bureau.

The determination below is affirmed, in all respects.

Allowances will be made upon notice when the determination in this court is presented for signature.


author: Djiewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    LELA SCHROEDER, PETITIONER-APPELLEE, v. HATFIELD WIRE & CABLE CO., RESPONDENT-APPELLANT.
    Decided February 3, 1947.

      For the petitioner-appellee, Harry Indurshy.

    For the respondent-appellant, Alfred J. Orth.

   Djiewen, C. P. J.

Petitioner, while in respondent’s employ, fell backwards oyer a box and sustained injury to her right leg and to her back on the right side below the belt. Upon the hearing in the Bureau the back injuries only were involved in the claimed disability. The evidence of disability is largely subjective. Petitioner testifies that she experiences a constant ache in the indicated point in her back; that it bothers her if she does heavy work; that she cannot sit too long at one time or in one position. She says: “When I sit too long it is not'severe, but I can’t explain it. I get so restless that I have to move.” This is the extent of her complaint, so she testifies.

The accident occurred November 9th, 1945. The claim for resulting injuries came before the Bureau for hearing on May 27th, 1946. Previously the petitioner had an accident while in the employ of the Western Electric Company. This occurred August 3d, 1944. The claim arising thereunder came before the Bureau for hearing on September 11th, 1945. The four dates last mentioned are important. For the prior accident an award was made and paid of eight (8%) per cent, of total. For the claimed injury now before us the award in the Bureau is two (2%) per cent, of total, and from this award respondent appeals.

Petitioner’s medical expert is Dr. Visconti, who was her export also in the former hearing. He diagnoses the present injury as the residual effect of a contusion of the lower back superimposed upon a previously traumatized back; and he estimates disability at five (5%) per cent, of total attributable to the second accident. Petitioner’s present disability, inferrable to both accidents, he estimates at fifteen (15%) per cent, of total. It will be seen therefore that the problem submitted on this appeal is one of determining as correctly as possible, upon the basis of the credible evidence, how much of petitioner’s disability, if any, is ascribablo to the second accident. The burden of proof is upon petitioner. The two traumas were inflicted upon the same region of the back.

Close scrutiny of the record reveals something of a tissue of contradiction that challenges belief. In the nature of the issue presented, petitioner’s interest lies in minimizing the enduring effect of the first injury with correlative maximizing of the effects of the second injury. To this interest her testimony is obviously addressed. The court-must adjudge the credibility with which it is done. A transcript of the testimony taken on the hearing of the first claim was admitted into evidence and is part of the record before us.

In the present hearing petitioner testified that when she returned to work after her first injury she was “feeling fine,” but according to the transcript she testified at the former hearing that she never returned to work for the Western Electric Company; that her first employment after the injury was with the Broadway Hosiery, which she had to give up because she could not stand the work; that she then took employment with the Jersey City Printing Company, where she remained only three days, having to leave there because she was confined to her bed for a week.and a half, being unable to stand. Whether or not she returned to work for the Western Electric Co. is not important; but her statement that, upon resuming employment after her first injury and before the second one, she was “feeling fine” is quite important, for from it we must conclude that she falsified at the first hearing or that she falsifies here. Categorically she states in the present hearing that in. September, 1945 (two months before the second injury), she no longer had any pain. But on September 11th, 1945, testifying in the former hearing, she described her then continuing pain very definitely and in explicit detail. “I always have a pain” she then said. At the time of that hearing she had not yet been able to return to work, and was then wearing a belt, giving as the reason that when she did not wear it her back did not feel “too good.” Petitioner’s statement in the present case that she had no pain in September, 1945, was sharply emphasized to her by counsel’s next question, whereupon she made the qualification that in September, 1945, she had “slight pain, but not like I have now.”

It is not disputed that the complaints of pain and disability made by petitioner contemporaneously with her respective injuries are the same in both cases; and this is specifically confirmed by the testimony of Dr. Visconti, who examined petitioner for the two hearings.

Following her first accident, petitioner was fitted with the medical belt or corset above-mentioned, and in the first hearing she described her need for it, saying that she dispensed writh it only when extremely hot weather made its use too burdensome. Although she testified first that she had no pain in September, 1945, and secondly that she had “slight pain, but nothing like I have now,” it is undeniable that at the hearing on September 11th, 1945, she wore the belt, saying she could not well do without it, while at the hearing of the present case she wore no belt. When it was elicited from her that she was also without the belt in March, 1946, when Dr. Koppel examined her for respondent, she quickly volunteered the statement: “I could clear the whole thing up by saying I don’t wear the belt.” Her reason, however, for no longer wearing it she did not give.

After her first injury she did not return to the Western Electric, saying that she was unable to do the work. But neither did she return to her employment with the present respondent, though she admits that her work there was “very light;” and her failure to return remains unexplained.

From the hypothetical question pursuant to which Dr. Visconti states his diagnosis and estimates the extent of disability, there is omitted the very important factor of petitioner’s marked improvement, if not her freedom from disability, on her own statement, in September, 1945. On March 23d, 1945, Dr. Visconti made his examination for the Western Electric hearing; and at that hearing on September 11th, 1945, he held to his original estimate of twelve and one-half (12%%) per cent, of disability, notwithstanding the marked improvement now reported by petitioner herself. And when asked concerning such adherence, notwithstanding the improvement, the doctor answered, not by saying he was unaware of the improvement, but that he was not asked about it.

As already noticed, the question here is not really one of measuring disability at all, but rather one of finding for the disability established the true cause or causes. Admittedly, under the circumstances, this is very difficult to do. Dr. Visconti says so. It certainly cannot be done by prodigious non sequiturs and assumptions. There is much of “I feel” and “I take it” and “It is reasonable to assume” (with no basis for the assumption), and the like. For illustration we quote from Dr. Visconti’s testimony, page 32, bottom:

“I had estimated previously on March 23d, 1945, as a result of the first accident the disability was 12y2 per cent, of total. I take it that she did improve somewhat since' that time but, however, there was still some residual as a result of that accident in question. My best opinion is that 5 per cent, of total can be reasonably attributed to the second accident.”

And again, at page 38:

“Q. Having that in mind, doctor, isn’t it exceedingly difficult to determine in your mind whether these differences in findings, having in mind that her complaints were essentially the same—whether these differences in findings were due to a residual disability occurring back in August, 1944, and may be due to the ordinary changes that one would expect between different dates of examination, or whether they were due to a new incident ? A. I would say yes, it is difficult. However, we do have a definite second accident, a definite period of treatment, a condition wherein she prevents (sic. probably should read presents) objective findings. So, therefore, it is reasonable to assume that at least 5 per cent, can be attributed to that accident.”

Our credence does not follow this. Though the testimony be given in the best of good faith, where, as here, the patient’s condition is so largely determinable by what the patient herself says of it, and by that alone, dissuasion by the patient can be stronger than persuasion by the doctor. Her credibility is more important than his, as much so, at least; and where the ordinary tests of accuracy and veracity render her testimony utterly repugnant as they do in this instance, there can be but one result.

As against petitioner’s proofs we have the testimony of respondent’s experts, Drs. Watman and Koppel, the former of whom examined petitioner after each accident. Dr. Watman estimates disability at three (3%) per cent, of total regardless of cause, and says there is now manifested a slight improvement of the condition he saw following the first accident. The effect of this is two-fold. It tends to combat petitioner’s claim that she was feeling fine prior to the second injury, as well as the claim that that injury caused added disability. Dr. Koppel examined petitioner March 29th, 1946, and estimated disability at three (3%) per cent, of total regardless of cause.

The findings of the Deputy Commissioner are against the weight of the credible evidence. The petitioner has not borne her burden of proof. Her petition is dismissed.


author: Hastshoenii, J.

text:
    Essex County Court of Quarter Sessions.
    THE STATE OF NEW JERSEY v. NICHOLAS DeFALCO, ALIAS MICKEY BELMONT, AND JOSEPH ALF BARONE, ALIAS BUCK JOSEPH.
    Decided January 30, 1947.
    Eor the state, Duane D. Minará, Jr., Maurice J. McKeown and G. William Garuso.

      Por the defendants, Anthony A. Calandra and William, V. Azzoli.

   Hastshoenii, J.

Defendants were convicted on an indictment which charged that they “did keep a place to which persons might resort for gambling, with intent that such persons might resort thither for gambling * * They sued out a writ of error to review such conviction, and now apply for a certificate of reasonable doiibt, in order to be admitted to bail, pending appeal. R. S. 2:193-11; N. J. S. A. 2:195-11.

As constituting such reasonable doubt, they object to certain portions of the court’s charge, or omissions therefrom, but none of these has any real merit, the latter’s substance having been otherwise covered in the charge.

They further contend there was error in that, over objection, the court permitted proof that on certain nights shortly before the date alleged in the indictment, many persons gathered out in the fields at the converted chicken-coop in question, for the apparent purpose of gambling, in the same way that they were proved to have gathered there and engaged in gambling in fact on the night in question. Their objection is based upon the claim that, since the indictment charges the offense on a certain date, any proof of the gathering of persons, even on an immediately previous date, is unlawful.

But this contention entirely overlooks the fact that defendants’ “intent that such persons might resort thither for gambling” is of the essence of the offense, and that it was therefore incumbent upon the state to prove this act of the defendants’ mind by the only means possible, i. e., their acts. Since there was definite evidence that defendants were in control of this deserted chicken-coop, and it is obviously unnatural for third parties to gather late at night, on repeated occasions, at such a deserted chicken-coop, without some instigation, the fact that many persons gathered there several nights in succession, indicates the probability that those in control of the chicken-coop instigated such persons to gather there. In other words, this fact is evidence of defendants’ “intent that such persons might resort thither,” as the statute says. Indeed, had the state only proven that such persons had gathered there on bnt a single night, defendants might well have argued that such gathering was but a casual occurrence, by mere chance, and thus without defendants’ participation, desire or intent.

That this, the only apparently available proof, was proper to prove such intent, seems not only sound in reason to this court, but this reason finds support in the viewpoint of our Supreme Court and Court of Errors and Appeals upon the substantially identical statute, construed in State v. Ackerman, 62 N. J. L. 456; 41 Atl. Rep. 697; State v. Griffin (Court of Errors and Appeals), 85 N. J. L. 613; 90 Atl. Rep. 259; State v. Terry (Court of Errors and Appeals), 91 N. J. L. 539; 103 Atl. Rep. 238.

These determinations are not only binding upon this court in general, but are of particular importance on this application for the following reasons. The purpose of the statute, denying bail unless a certificate is issued “that there is reasonable doubt as to the validity of the conviction,” is clearly to prevent a convicted defendant from further delaying the service of sentence by the taking of a fruitless - appeal, and, at the same time, to avoid the shock to our citizens when they see a convicted felon- walking the streets immediately after being sentenced to custody. “Justice delayed is justice denied.” On the other hand, the statutory purpose is also clear, not to make a fruitful appeal barren, through the service of sentence in custody, before the conviction appealed from can be determined to have been invalid on appeal.

In short, the issue on the granting of bail on such applications is as to whether “there is reasonable doubt * * * [that] the validity of the conviction” will be upheld on appeal. If there is, bail should be granted; if not, it should be denied. Strictly speaking, the doubt as to the -validity of the conviction, which will cause the trial court to issue the certificate, is not the doubt in such court’s own mind of the validity -of its own action at the trial, but whether there is a reasonable doubt in its mind as to the fact that the appellate courts will sustain “the validity of the conviction.”

In view of the decisions of our upper courts in the above cases on substantially the very point now pressed, this court entertains no reasonable doubt as to the action of such courts on that point in upholding “the validity of the conviction.”

We turn but briefly to the grounds subsequently advanced by new defense counsel, for they were barely and belatedly presented to this court.

The allusion in the charge to the failure of the defendant DeEaleo to take the stand, would appear entirely proper, under the facts and the authorities, particularly as the charge expressly alluded to the fact that the co-defendant, Barone, did take the stand and testify. The allusions to written statements made by certain state witnesses were not harmful. Such statements were not put in evidence, as the state would have been entitled to do, had they been used to meet surprise. Indeed, neither side asked that they be put in evidence. So far as used at all, they were used as a mere memorandum to refresh the recollection of most reluctant, not to say hostile, witnesses. The other grounds alleged equally lack substance.

Since this court entertains no reasonable doubt as to the fact that the validity of the conviction will be upheld on appeal, the application for a certificate and bail will be denied.


author: Sullivan, D. C. J.

text:
    Second District Court of Jersey City.
    MICHAEL ALBANESE, PLAINTIFF, v. LUCILLE INDELICATO, DEFENDANT.
    Decided February 1, 1947.
    Por the plaintiff, Weiiz & Lasser.

    Por the- defendant, Charles W. Kappes.

   Sullivan, D. C. J.

Plaintiff and defendant were engaged to marry each other. While affianced, plaintiff gave defendant an engagement ring, a dinner ring, the sum of $50 to buy material for a wedding dress and a few minor gifts. The engagement was subsequently broken off. Plaintiff claims that the defendant broke the engagement. Defendant claims that plaintiff broke it. In any event, plaintiff wants the two rings and the money back (he has abandoned his claim to the minor gifts). Hence this suit sounding in replevin but including a count for conversion and a third count for money had and received. At the trial, plaintiff abandoned the count in replevin and the suit was.tried on the theory of conversion and money had and received. King v. Morris, 74 N. J. L. 810; 68 Atl. Rep. 162.

As far as the engagement ring is concerned, the defendant had no right to keep it. An engagement ring is a symbol or pledge of the coming marriage and signifies that the one who wears it is engaged to many the man who gave it to her. If the engagement is broken off the ring should be returned sine® it is a conditional gift. True, no express condition was imposed but the law implies a condition because of the symbolic significance of the ring. It does not matter who broke the engagement. A person may have the best reasons in the world for so doing. The important thing is that the gift was conditional and the condition was not fulfilled. Sloin, v. Lavine, 11 N. J. Mis. R. 899; 168 Atl. Rep. 849; Ruehling v. Hornung, 98 Pa. Super. Ct. 535.

The giving of the dinner ring is an entirely different proposition. True, it was given after the parties became engaged. No doubt plaintiff would not have given the ring to defendant if they had not been engaged. The dinner ring though, has no symbolic meaning and is only a token of the love and affection which plaintiff bore for the defendant. Many gifts are made for reasons that sour with the passage of time. Under the law though, there is no consideration required for a gift and it is absolute once made unless a condition is imposed. There was no express condition here and the law will not imply one as in the case of the engagement ring since the dinner ring has no symbolic meaning attached to it. Defendant was under no obligation to return the dinner ring.

As far as the $50 is concerned, the money was given to defendant to purchase material for a wedding dress and the proof shows that she used it for that purpose before the engagement was broken off. I think plaintiff has no right to have the money back from defendant.

Judgment will be entered accordingly,


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK H. GREENE, PETITIONER, v. WATSON FLAGG MACHINE CO., INC., RESPONDENT.
    Decided January 22, 1947.
    For the petitioner, Aaron Gordon.

    For the respondent, George E. Meredith (Edward M. LaMar, of counsel).
   This is a proceeding brought by the petitioner, Frank H. Greene, against Watson Flagg Machine Company, Ine., respondent, seeking compensation under and by virtue of the provisions of R. S. 1937, 34:15-1, et seq.; N. J. S. A. 1937, 34:15-1, et seq., “prescribing the'liability of an employer to make compensation for injuries received in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” together with the several acts amendatory thereof and supplemental thereto.

A petition and an answer thereto were duly filed with the secretary of the Workmen’s Compensation Bureau at his office in Trenton, Flew'Jersey. In regular course the cause came on for trial before me, John J. Stahl, a Deputy Commissioner of Compensation, at the Bureau Chambers, 158 Ellison Street, Paterson, FTew Jersey.

The vital question in controversy is whether an assault by horseplay and skylarking under certain conditions constitutes an injury by accident arising out of and in the course of employment within the purview of the statute.

The petitioner testified that a certain employee, Fleetwood, was a habitual perpetrator and prankster of various acts of horseplay, directed against anyone who might be within his reach; and that he observed Fleetwood on many occasions indulging in these peculiar acts. He further testified that on March 5th, 1945, he left the stock department where he worked to go to the receiving department to obtain some object or article and,.while he was going down the aisle walking toward the receiving department, he was struck in the eye by a missile that had been thrown by Fleetwood. Following this episode, Fleetwood was discharged by the respondent from its employ. There was testimony adduced on behalf of the petitioner by two former employees, Frederick Hasenbalg and Herbert H. Bruce, and their testimony seems to give substance and corroboration to the testimony of the petitioner in that this employee, Fleetwood, was the “funny boy” who freely engaged in sportive acts as a matter of daily routine.

On behalf of the respondent there was testimony of Bruno Olivo, foreman, and Evelyn Savage, group leader, both of whom testified that they knew of some of Fleetwood’s acts of horseplay, but not to the extent that the other witnesses testified to. Olivo admitted that Fleetwood had engaged in horseplay prior to the accident, and that he had censored him for it; and the witness, Mrs. Savage, admitted on several occasions she observed Fleetwood would “kibitz” and that at times the petitioner also “kibitzed.”

I believe the proper approach in deciding this case is to state the correct rule, and to apply the rule to the proven facts. I believe the accepted rule to-day, not only in this jurisdiction, is to the effect that, where repeated acts of horseplay are tolerated by an employer day in and day out throughout the factory or plant on the part of an employee, customarily _ known to engage in that sort of thing, resulting in an injury to an innocent workman, such injury is by accident, arising out of and in the course of the employment. Peterson v. Maine Fish Meal Co., 138 Me. 289; 25 Atl. Rep. (2d) 240. There was an-added peril, which was created by the employee, Fleetwood, “who was a frequent offender and his proclivities for horseplay and fooling with his fellow employees were known, or should have been known” by his employer.

The respondent, in challenging petitioner’s right of recovery, cites several cases where compensation was disallowed, namely, Mountain Ice Co. v. McNeil, 91 N. J. L. 528; 103 Atl. Rep. 84; Powers v. Y. M. C. A., 17 N. J. Mis. R. 261; 8 Atl. Rep. (2d) 189; Hulley v. Moosbrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007; Staubach v. Cities Service Oil Co., 127 N. J. L. 577; 24 Atl. Rep. (2d) 193. I feel that all the cases cited by respondent can be easily distinguished from the present one. Not in a single case cited does the element of repetition of the act of horseplay appear with knowledge to the employer. Hulley v. Moosbrugger, supra, is authority for the rule that “an employer is not charged with the duty to see that none of his employees assaults any other one of them, either willfully or sportively.” However, the situation is somewhat different in the case at bar; here there is a continuity of acts of horseplay occurring almost daily. Fleet-wood’s propensity for engaging in these pranks was so notorious and so widespread throughout the factory that I can’t conceive why the respondent did not take timely action to get rid of him and not wait to do so until he had inflicted a very serious injury on a co-worker. The condition should have been corrected, when it is permitted to persist, a special danger is created thereby.

The burden of proof which rests upon the petitioner to establish a right to compensation has been met and I accordingly hold that the petitioner has succeeded in establishing an accident arising out of and in the course of the employment.

It is, therefore, * * * adjudged, determined and ordered, that-judgment be entered in favor of the petitioner and against the respondent.

John J. Stahl,

Denuty Commissioner.