author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGIANNA ROWELL, PETITIONER, v. TIMOTHY BOWERS, RESPONDENT.
   . This is an action under the Workmen’s Compensation law brought by Georgianna Rowell, a woman sixty-five years of age. The petitioner was employed at the time of the accident by Timothy Bowers on a farm, cutting potatoes for him. On the morning of the 9th of April, 1928, the petitioner was working in the employer’s barn and while so engaged it became necessary for her to answer a call of nature, and in order to do so she says that she sat down on the floor of the barn and let herself down to the ground, a distance of twenty-eight inches, in order to leave the barn, and while so doing fell and injured her hip and leg and knee.

The respondent in his answer stated that the petitioner, instead of leaving the barn through the usual and proper entrance and exit undertook to jump off a platform used for loading and unloading purposes and so fell and was injured, and contends, therefore, that the petitioner did not sustain her injury out of and in the course of her employment. He further states that she was only a casual employe, and at the hearing, without objection, his counsel set up the further defense that she was an independent contractor.

There was considerable testimony as to the condition of the inside of the barn with reference to other doorways than the one through which the petitioner went. It was testified that the other passageways were blocked by sacks of potatoes and other articles; that there was a boy about sixteen years of age sitting in front of another doorway; that in front of the other doorways on the outside of the barn was a lot of boxes and barrels and rubbish. There was testimony by the witnesses of the respondent denying these statements and to the effect that there was a clear passageway through other doorways. The petitioner testified that she was taken short and that she was within a few feet of the doorway in question and that it was necessary for her to leave by the shortest way, which was through the doorway in question. There had been several employes working in this barn before but the respondent had never instructed any of them, including this petitioner, as to which doorway to use for the purpose of entrance or exit; that he had never said anything to any of them about any toilet facilities.

Considering the evidence as a whole I find that the petitioner’s attempt to leave through this doorway was not an unreasonable act and that she was doing a natural and reasonable thing by attempting to leave as she did. I do not find as a fact that she jumped from the doorway as alleged by the respondent, but that she let herself out in as easy a manner as could be done, and I find, therefore, that she sustained her injury in an accident arising out of and in the course of her employment.

It also appears from the testimony that the petitioner had been engaged the year before by this respondent for the same work as she was doing at the time .of the accident; that during the previous year he had engaged her also for the present year; that the employment was definite and recurring; that the work would take several weeks; that there was expectation on both sides that the work would continue until all the potatoes were cut, which were of a considerable quantity and that the petitioner had informed the respondent that she would be ready to come for this work whenever he called her.

I find as a fact, therefore, that the said work was not casual and did not happen by chance.

Nor can I agree with the respondent’s contention that the petitioner was an independent contractor. The testimony of the petitioner and that of her daughter were uncontradieted ■that they were subject to instruction by the respondent as to certain details of the work. They were, for example, told which potatoes to cut and where to put them after they were cut; they were told that certain potatoes were to be piled in one place and others in another. Although the petitioner was paid by piece work she was told she was to be at work about eight o’clock in the morning and that she was to leave about five o’clock in the afternoon.

Under such circumstances, therefore, the petitioner could not have been held to have been an independent contractor.

It also appeared that the petitioner and her daughter had been paid the sum of $27 together; that the petitioner had worked nine days and her daughter six days, the two of them earning the aforesaid sum. From this we deduce a daily wage rate of $1.80 and a weekly wage rate, therefore, of not more than $10.80, two-thirds of which comes below the $8 minimum compensation rate. According to the testimony of Dr. Graham, the petitioner’s physician, temporary disability lasted until June 26th, 1928, or a period of eleven weeks. Compensation, therefore, for temporary disability should, therefore, be for eleven weeks at $8 per week.

It appeared that the petitioner suffered a fracture of the neck of the left femur or hip bone. X-ray photographs produced show that the fracture had not united and is still ununited, the bones being separated about a half inch. It was testified by the petitioner’s physician that the extent of the permanent disability was one hundred per cent, loss of the use of the leg and I agree with this statement. It was also testified that the petitioner is unable to have any use of her leg since the time of the accident; that she 'is required to eat and sleep and spend her entire time in a chair. In view of the fact, however, that the petitioner refused to co-operate with the doctor in charge of the case in his effort to reduce the degree of permanent injury, compensation should be modified for permanent injury so as to allow the petitioner only ninety per cent, in this respect. This calls for one hundred and fifty-seven and one-hal£ weeks compensation for permanent injury at $8 per week, or a total of $1,260.

With regard to the medical expense it appears from the record that no request was made by the petitioner that the respondent furnish this service. It was, however, established that the respondent knew of the need of such service. It further appears that no application was made by the petitioner for the extension of the allowance provided for by the statute. The proof shows that the hospital bill amounted to more than $50. Consequently the petitioner should be allowed in addition $50 on account of hospital charges. The testimony of Dr. Graham was that his services were worth $25 and this sum should be allowed for his services.

I think also that the petitioner is entitled to a reasonable counsel fee to be paid to her counsel, which amount I hereby fix at $200.

The total amount of compensation which has accrued to the date of the rule for final judgment should be paid in one lump sum at once, together with the aforesaid medical allowance and counsel fee.

A rule for judgment will be drawn up in conformity with the above.

W. E. Stubbs, Deputy Commissioner.


source: Caselaw Access Project

author: John J. Stahl, Referee.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNA FISCHER, PETITIONER, v. GERA MILLS, RESPONDENT.

      Eor the petitioner, Aaron L. Simon.

    Eor the respondent, Richard W. Baker.

   *í» *2» ♦!» sjt

■ At the time of the hearing in this case there was considerable discussion between counsel and between the parties and the doctors, and it was the contention of the respondent that the deceased did not die as a result of an injury arising out of and in the course of his employment. Einally, it was agreed between all parties that the case should be compromised on the basis of the respondent paying to the petitioner a lump sum of $2,100, which is approximately one-half of the compensation that would be awarded if the case were held to be a compensable one. This payment was agreed to strictly by way of a compromise and with the understanding that this would definitely dispose of the case.

Mr. Eischer, the son of the deceased, was placed upon the-stand in the absence of his mother who is not in such a, physical condition that she could appear in court, and he-stated that he understood the compromise and that he was. entirely satisfied to accept the same, and the referee was asked to approve a compromise settlement on this basis.

After going over the facts in this case and the contentions, of both parties I have come to the conclusion that the death of the deceased from brain lesion cannot be said to have been either caused or aggravated by an accident he is said to have-sustained while working for the respondent. Accordingly,. I find that it is to the best interests of all parties to compromise the matter on the basis outlined above, and therefore-I order that a compromise judgment be entered in favor of the petitioner by the payment by the respondent of $2,100.

I further order that the attorney for the petitioner be-paid a counsel fee of $300, said payment to be made by the petitioner.

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY KOLARZ, PETITIONER, v. ALBERT SILK COMPANY, RESPONDENT.
   H* # % % t'fi

2. The above-entitled matter came on for bearing before me on January 24th, 1929, and was continued at various adjourned dates until concluded.

3. It appeared from the testimony in this case that the ■decedent, John Kolarz, on July 6th, 1928, was employed by the respondent at its place of business in Paterson, New Jersey, as a weaver. The decedent died on July 18th, 1928, from an obstruction of the intestine which followed an operation for a bilateral hernia. The petitioner attempted to prove that the decedent, her husband, sustained the bilateral hernia as a result of an accident arising out of and in the •course of Ms employment with the respondent, and that his •death followed the operation for the hernia.

The petitioner introduced evidence to show that the decedent on July 6th, 1928, was lifting a warp which weighed approximately two hundred and fifty pounds; that after he put the warp down he appeared to be in pain, became pale and sat on a bench alongside of the loom for about five minutes. The decedent then went to the office of the respondent and shortly thereafter dressed and left the respondent’s place of business. The decedent at the time of the alleged accident resided at Clifton, New Jersey. There was testimony, introduced by the petitioner, that the decedent arrived home at Clifton at four-thirty o’clock in the afternoon, and that he came by way of a street car from Passaic. Dr. Weinert, who treated the decedent, stated that he saw him in his office on the day of the alleged accident between six-thirty and seven p. m. Two other witnesses for the petitioner testified that they saw the decedent at a bus station in Passaic at about four-fifty p. si. The petitioner and her two daughters testified that the decedent did not leave his home after the alleged accident until he went to the hospital two days later.

Dr. Weinert testified that he saw the decedent on July 6th, 1928; at his office, between six-thirty and seven in the evening; that he examined him and found that his physical condition was entirely negative, except that the inguinal rings on both sides were dilated and there was a pulsation of the gut against the finger when he coughed; that at that time the • decedent had a bilateral hernia. On cross-examination he testified that the gut did not protrude except when the-decedent coughed. He also testified that the decedent was operated on for the hernia three days after the alleged accident and that the operation showed,he had relaxed abdominal rings with small sacs on both sides. Subsequent to the operation for the hernia an obstruction developed in the intestine of the decedent and an operation was performed to relieve this condition. The obstruction of the intestine caused the death of the decedent. Dr. Weinert, on cross-examination, stated that he believed that had the decedent not been op-rated on, possibly the obstruction would not have occurred.

Dr. McGuffy testified that he did not see the decedent until he was brought into the hospital and his testimony of the-decedent’s condition at that time corroborated that given by Dr. Weinert. When he examined the decedent he found that the gut was in the canal, between the outer and inner-rings and protruded when the decedent coughed.

The respondent produced evidence to show that the decedent did not have any accident on July 6th, 1928; that he continued- working until five o’clock, the usual quitting-time, and that he walked, down four flights of stairs to the street and walked with a fellow employe for several blocks, where he boarded a street car for Passaic.

There was a sharp conflict between the testimony of the petitioner and respondent as to whether or not the decedent had an accident as alleged by the petitioner and whether or not the decedent ceased work immediately. There was a conflict between the petitioner’s own witnesses. A daughter of the petitioner testified .that the decedent arrived home at four-thirty and did not leave his home after that time. The decedent’s doctor testified that he was at his office between six-thirty and seven that evening and two other witnesses testified that he was in Passaic at four-fifty o’clock.

The respondent also, produced Drs. Russell, Brothers and Clay, who testified that in their opinion there was no descent of the hernia if the protrusion occurred only when the decedent coughed. The doctors testified that in their opinion this condition was a potential hernia and that it was a condition often found in individuals who have relaxed inguinal rings.

I called Dr. Schultz, who is associated with the department of labor in Paterson, on my own behalf, and he testified that in his opinion, if the protrusion of the gut was in the canal between the inner and outer rings, then there was not a descent, but at the most a partial descent.

The doctors produced by the respondent also testified that obstructions following a hernia operation were unusual and that it would have been possible for the obstruction to have occurred even though the decedent had not been operated on for a hernia.

The hospital record which was put in evidence showed that Dr. Weinert had treated the decedent prior to the operation for the hernia for abdominal discomfort and eructation. Dr. Weinert testified that this condition had existed over three weeks to a month prior to the alleged accident.

Í. There is no proof in this case of a traumatic hernia and, therefore, to recover the petitioner must prove by conclusive evidence the five points set forth in the statute. I am satisfied that the petitioner has failed to prove the first point which provides: “The descent of the hernia immediately followed the cause.” Dr. Weinert is the only doctor who saw the decedent a short time after the alleged accident. On the evidence introduced by the petitioner, the accident occurred between three and four in the afternoon. Dr. Weinert saw the decedent between six-thirty and seven that evening. At that time there was no protrusion of the gut. It was only when the decedent coughed that an impact could be felt against the doctor’s fingers. Dr. McGuffy, of course, did not see the decedent until several days after the alleged accident.

Drs. Russell, Brothers, Clay and Schultz all testified that in their opinion, based on the testimony of Dr. Weinert, there was no descent of the hernia at any time. It therefore appears that the petitioner has failed to prove conclusively that there was an immediate descent of the hernia following the cause.

There is also a dispute in the testimony whether or not there was any accident and whether or not the decedent ceased work immediately. The respondent contends that the cause of death was not a proximate result of the bilateral hernia. It is not necessary, however, to pass on this point because, assuming that it was, still the petitioner has failed to prove conclusively the five points set out in the statute.

^ • H« Hi Hi ❖ Hi

John J. Stahl, Referee.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH BESSLER, PETITIONER, v. CHARLES MILLER & COMPANY, RESPONDENT.

      Eor the petitioner, Samuel Harber.

    For the respondent, McCarter & English.

   % % i¡; :¡: :¡:

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with the respondent on May 11th, 1928. He saj^s that at that time he was employed as a pig shaver, and while so engaged was injured by the falling of a barrel which he was lifting with one of his co-workers and which fell upon his stomach. He alleges that as a result of the said accident he sustained serious and permanent injury. He alleges that he received a rupture, that he received serious injuries to his stomach, and that he has suffered otherwise internally; that his digestion of food has been disturbed; that he suffers from loss of sleep, and that he has been otherwise disabled. Petitioner claims very serious total permanent disability.

Respondent denies all of the alleged conditions of injury of the petitioner and alleges that the petitioner was not hurt in any way by reason of the aforesaid accident, but that any injuries which the petitioner claims, or of which he may suffer, are the result of his natural condition and not the result of any accident arising in and out of the course of his employment with the respondent, but the respondent takes all injuries, diseases, and any and all other conditions of petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing the compromise settlement not only on petitioner’s present condition but on any and all developments in his condition of any nature whatsoever which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation, is willing to settle the entire matter for six weeks’ compensation at $17 a week, making the sum of $102. The respondent also agrees to pay the attorney for the petitioner a counsel fee of $46. All court costs and expenses, including medical expenses of the petitioner, are to be paid for by the petitioner.

Erom the testimony and the facts stipulated, this compromise settlement is fair to both sides and1 is approved by this court upon the distinct understanding of the petitioner and his attorney and the respondent and its attorneys that a fundamental element of this compromise settlement is the fact that any future or further disturbances resulting in an increase of disability to the petitioner are taken into consideration, and are in a large measure the reason for the respondent’s 'willingness to agree to this compromise settlement.

sk # ❖

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ROSE MICKALSKI, PETITIONER, v. STANDARD UNDERGROUND CABLE COMPANY, RESPONDENT.
   A petition was filed and served in the above-entitled case praying for compensation for the death of the petitipner’s husband as a result of an accident in the course of his employment, and an answer was duly filed by the respondent. It appears that the decedent met with an accident on September 1st, 1927, when he fell from a bench and suffered a laceration of the scalp and a possible fracture of two ribs on the right side. The man continued under treatment, and was discharged as cured by the attending physician on December 9th, 1927, although it appeared that the decedent made a few more visits to his doctor after that date for observation. On June 19th, 1928, the petitioner’s husband died at the Perth Amboy City Hospital, and the death certificate gave as the cause of death “lung abscess. Acute.” On March 8th the petitioner’s husband was examined by a doctor for the respondent, who reported that the man had entirely recovered from his accident, that no permanent disability had resulted from the injury, and that X-rays which he had taken failed to show the presence of any fractures of the ribs ■on the right side of the body. Prom this state of facts, the petitioner claimed that the decedent’s death was the direct result of his injury. On the other hand, the doctors for the respondent contended that it was only remotely possible that there was any connection between the man’s injury from which he had practically recovered in September, 1927, and his death over six months later. Also, Dr. M. P. Urbanski, who signed the death certificate, stated that he could not say with certainty that there was any connection between the two incidents, and in his opinion there was only a possibility that the injury was a predisposing cause to the condition which resulted in death. In view of these conflicting claims, .an agreement by compromise was reached between Attorney Max Kummel, representing the petitioner, and Attorney Richard W. Baker, representing the respondent, and the deputy commissioner was asked to approve the agreement and enter an award on the same.

I therefore find and determine that there is a real question involved in this case as to whether the death of the petitioner’s lusband was due to natural causes or a condition caused or .aggravated by the decedent’s injury in the course of his employment. Under an agreement by compromise reached between the attorneys for the petitioner and the respondent, I find that the petitioner is entitled to the sum of $1,000 to ■cover funeral and medical expenses, and that the petitioner’s .attorney is entitled to a counsel fee of $200, half of which is to be paid by the petitioner and the other half by the respondent, and I further find that the petitioner’s attorney is entitled to the sum of $25, .to be paid by the respondent to cover medical expenses incurred.

# # sji % iji #

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM THOMAS, PETITIONER, v. ROBERT NEWBAUER, Jr., RESPONDENT.
    Eor the petitioner, James Mercer Davis.

    For the respondent, Willard F. Lippincott.

   # % ífí ifc íjí #

In August of 1928, the petitioner entered into a contract with the respondent to pick tomatoes, and petitioner worked for the respondent during the tomato season which lasted until sometime in October. After the tomato season was over, the petitioner remained with the respondent until sometime in November, for the purpose of husking corn and picking up potatoes.

Sometime during the month of November, the petitioner finished all work which he had been engaged to do by the respondent. The petitioner, however, remained on the farm of the respondent after his employment had ceased, living in a shanty which the respondent had allowed him to occupy free of charge, and the petitioner was still living on the farm of the respondent at the time of the happening of the accident on December 27th, 1928.

On that day, at the request of Loeustwood Cemetery Company, the respondent asked the petitioner to take the team •of Robert Newbauer, Sr., to the Loeustwood Cemetery Company to haul some dirt, the arrangement being that Robert Newbauer, Sr., who was a director of said cemetery company, should loan his team for the purpose, and the company should furnish a driver. Accordingly respondent, at the request of the company, secured petitioner to drive said team, for which petitioner was to receive the sum of one dollar for half a day’s work. The petitioner took the team and hauled the dirt, and when he returned with the team to the respondent’s farm, the respondent was starting to saw wood with his cross-cut saw.

It appears from the testimony that the respondent had told the petitioner that he could have for his own use the loose wood and rails which were lying around the farm, and the petitioner had on several occasions complained about the wood being hard to cut, and had asked the respondent if he would at sometime cut the wood for the petitioner. On the day the accident happened the respondent had an opportunity to cut the wood, and had started on the work of cutting petitioner’s wood at the time the petitioner returned to the respondent’s farm with the team.

The petitioner had not made a full half day in the work for the cemetery company, and respondent, in order that the petitioner should work the full half day requested him to go into the fields with the team and bring up a load of corn stalks for respondent, which the petitioner did, and .after this was done, the respondent suggested that the petitioner assist him in cutting petitioner’s wood. The petitioner in attempting to move a piece of wood from in front of the saw allowed his hand to come in contact with the saw and four fingers were severed.

I find from the testimony in the case that it is doubtful if the respondent was actually the employer of the petitioner at the time the injury occurred; but it would appear that the-respondent was acting as the agent of the Locustwood Cemetery Company and employed the petitioner for services to be rendered to the said cemetery company at a definite price of one dollar for half a day’s work, and the money was actually paid by the cemetery company.

It further appears that at the time the accident occurred,, the petitioner was not doing anything either for the cemetery company or for the respondent. -He was actually engaged in work for himself in that he was assisting the respondent to cut wood which the respondent had given to the petitioner,, and which work was being done by the respondent for the benefit of, and as a favor to the petitioner, and in view of these facts I have determined that the petitioner was not. in the employ of the respondent at the time the accident occurred, and that the Workmen’s Compensation law in this state is not applicable to this case.

In the case of Karas v. Burns Brothers, 94 N, J. L. 59; 110 Atl. Rep. 567, it was held that “the conspicuous principle-at the basis of the entire relationship is that liability of the-master ceases when the agent is acting not in the master’s-occupation, but in line of conduct peculiar to himself and suggested not by any benefit or accommodation to the master or to the master’s interests. In such a situation, the agent, becomes the principal, and is liable for the natural consequences of his independent acts.” This principle was followed by the Court of Errors and Appeals in the case of Conklin v. Brighton Mills, 144 Atl. Rep. 815; 7 N. J. Adv. R. 434.

jl; ¡I» ijí í|í *•*

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EMMLEY COON, PETITIONER, v. DAVIS BAKING POWDER COMPANY, RESPONDENT
    Eor the petitioner, George B. Milstein.

    Eor the respondent, McCarter ■& English.

   % % Hs sfc ^

That William Ortman, deceased, met with an accident arising out of and in the course of his employment with respondent on August 13th, 1937, at which time his wages were $19.12 per week. Said William Ortman died as a result of said accident on August 24th, 1927. At the time of said William Ortman’s death he was about twenty years old and for many years prior thereto living with his grandmother and grandfather at 114 Summit avenue, Jersey City. His grandmother’s name is Emmley Coon, who is the petitioner in this ease, and his grandfather’s name is William E. Coon, and their ages are, respectively, fifty-nine years and seventy-nine years. Said William Ortman, deceased’s younger brother Frederick A. Ortman, aged fifteen years, was at the time of his brother’s death, and for many years prior thereto and is at the present time residing at said address with his said grandparents, Mr. and Mrs. Coon. The grandparents, Mr. and Mrs. Coon, and the younger brother, Frederick A. Ortman, are partial dependents of the deceased, William Ortman. The mother of the deceased is living, but for the past sixteen years has neither lived with William Ortman, deceased, nor been associated with him in any way and was never, in any way, supported by or dependent upon her said son, William Ortman.

Respondent has never questioned the compensability of this case and has paid compensation from the time said deceased was injured. Compensation payments were temporarily suspended for a time when there was a threat by the mother of the deceased to make some additional claim. That matter was thereafter straightened out and it clearly appeared to the satisfaction of this court, the full compensation board, and the parties and their attorneys, that the mother had no dependent’s claim arising out of the death of this deceased. The settlement arrived at is for temporary disability from August 13th, 1927, to August 23d, 1927, at $12.77 per week, and for permanent compensation arising out of the death of the deceased for seventy-one and four-sevenths weeks at $8.62 per week, and two hundred and twenty-eight and three-sevenths weeks at $7.66 per week. Burial expenses are allowed and amount to $150, and a counsel fee of $125, to be paid petitioner’s attorney by respondent was also agreed to. The .temporary compensation, burial expenses and counsel fee have been paid. Eorty-eight and four-sevenths weeks of the permanent compensation at the rate of $8.62 had already been paid by the respondent to the petitioner by the end of July, 1928. At a meeting of the full compensation board, held July 16th, 1928, commutation of $1,200 of the balance of the permanent compensation was allowed the petitioner. Under the direction of the compensation board this was taken from the front end of the compensation and has been paid the petitioner. This leaves a balance under the permanent compensation of eighty-five and three-sevenths weeks at $7.66 a week. Payment of this balance was suspended until the expiration of the weeks covered by the commutation, at which time the weekly payments are to be resumed and continued until said balance has been paid. This settlement is approved by this court.

$$$$$$$

Charles E. Corbin, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VINCENZO DIMORA, PETITIONER, v. AMERICAN CEMENT TILE MANUFACTURING COMPANY, RESPONDENT.
    Eor the petitioner, Edwin J. O’Brien.

    Eor the respondent, Clarence B. Tippett.

   ❖ ❖ ❖ s£ sfc ❖

After giving due and careful deliberation and consideration to the testimony produced by the petitioner and by the respondent, I am induced to the conclusion that the petitioner has failed to show compliance with the mandatory provisions of the Workmen’s Compensation statute, namely, that he failed to give notice to the employer’s requirements called for under sections 15 and 16 of the statute.

It appears from the testimony that the petitioner was a man about sixty-two years of age, had been employed by the respondent for some considerable time, and on October 25th, 1927, is claimed to have fallen while lifting or carrying tile, striking his back and right hip. He had a co-worker assisting him at the time. It appears he contended he left the premises, went home and never reported to the employer or any of the officials of the plant of his alleged accident until somewhere after the first of February, 1928, when his daughter then reported to the company office.

In the meantime, the testimony shows that he called in Dr. Ilird, who saw him on or about October 25th or 26th, 1927. The doctor did not again see him until sometime in January, 1928, at which time the petitioner contended his disabilities had become very severe and that he had sustained a fracture. The original diagnosis of the doctor was a tentative one of rheumatism, but when an X-ray was taken in January, 1928, it was discovered the man suffered from a transverse fracture through the surgical neck of the left femur. Without further comment on the evidence of accidental injury, extent of injury, or the disability which the petitioner may have suffered, the fact remains that the proof on the question of notice of accidental injury given to the employer is lacking within the specific requirements of the statute. The employer disclaimed knowledge of occurrence of the alleged injury. It was shown that the petitioner did not himself at any time report to the employer. His son, who also was employed at the plant, did not report to the employer that his father was injured. The daughter of the petitioner did not report on behalf of her father until on or after February 1st, 1928. These facts are clearly shown without any possibility of uncertainty or doubt.

Therefore, inasmuch as the employer is conclusively shown not to have received' or obtained knowledge or notice within ninety days after the occurrence of the injury, no compensation can be allowed.

Sc Sc Sí . Sc -S: * *

Charles E. Corbin, Deputy Commissioner


author: Pee Cueiam.

text:
    IZOLAR BAILEY, RESPONDENT, v. PAUL FORTUGNO, APPELLANT.
    Decided September 16, 1930.
    Before Gummeke, Chief Justice, and Justice Campbell.
    Eor the appellant, Baskin & Ilornstein.

    Eor the respondent, Jacob J. Singer and Frank Introcaso.

   Pee Cueiam.

The plaintiff brought suit to recover compensation for injuries resulting to her from a fall down the stairway of a tenement house owned by the defendant and in which she was a tenant residing on the second floor of the building. The proofs showed that at about five o’clock in the morning of September 16th, 1927, she had a call to the toilet, which was downstairs. During the earlier part of the night she had had a previous call of nature and used a large slop pail instead of going to the toilet. When she later undertook to go to the toilet there were no lights on in the hall to enable her to see where she was going. She carried with her the slop pail that she had used in the night, and also some matches for the purpose of trying to light the stairway, as she knew that one of the stairs was defective. She struck a match, but it went out before she came to the defective stair. When she got there she tripped and fell, receiving the injuries for which she sued. The jury rendered a verdict in her favor, and the defendant has appealed from the judgment entered thereon.

The first ground upon which we are asked to reverse this judgment is that there was no actionable negligence shown on the part of the defendant because there was no proof of his knowledge of the existence of the defective condition of the step, and that therefore the motion to direct a verdict in his favor should have been granted. The accident happened, as has been stated, on the 16th of September. The defect in the stairway had existed at least since the latter part of the preceding August. It was for the jury to say whether that period was not sufficiently long to charge the defendant with notice, even though his attention had not been called to the defective condition of the stair, which plaintiff testified she had observed in the preceding August. This is the doctrine of Schnatterer v. Bamberger, 81 N. J. L. 558.

Next it is contended that it conclusively appeared that there was an assumption of risk on the part of the plaintiff, and that for this reason also there should have been a verdict directed in favor of the defendant. We consider this contention to be without merit. To hold that a landlord can leave a stairway in such a defective condition as to be dangerous to parties lawfully using it as tenants, for the purpose of going to and from the toilet, and escape liability for injuries resulting from such neglect, so far as tenants who have knowledge of his default are concerned, would practically be to prohibit such tenants from using the toilet during the night hours when the hallway and stairs were unlighted.

It is further urged as a ground of reversal that the verdict is against the weight of the evidence. It is enough to say, in disposing of this contention, that this is a matter which cannot be considered on appeal.

Lastly, it is argued that the court erred in permitting leading questions to be asked over objection and refused to strike out the questions and answers so objected to. The mere fact that a court permits a leading question to be asked does not constitute legal error. The matter is one committed to the discretion of the court; and unless that discretion is abused, the action of the court in permitting it is proper. We find no such abuse in the present case.

These are the only matters argued, and we conclude, for the reasons stated, that the judgment under review should be affirmed.


author: Pee Cukiam.

text:
    RYAN VANDERVALK, PROSECUTOR, v. BOARD OF COMMISSIONERS OF THE BOROUGH OF HAWTHORNE ET AL., DEFENDANTS.
    Submitted May term, 1930
    Decided September 18, 1930.
    Before Justices Pakiiek, Campbell and Bodink
    For the prosecutor, William George.

    For the defendants, Alexander M. MacLeod.

   Pee Cukiam.

The prosecutor is the chief of police of the borough of Hawthorne, in the county of Passaic, to which office he was appointed August 1st, 1928.

On September 14th, 1929, Arthur Rhodes, the director of public safety and public affairs of the borough caused to be served upon the prosecutor the following notice:

“Hawthorne, N. J., Sept. 13, 1929.
Mr. Ryan. Vandervalk.
Dear Sir: You are hereby notified and directed that from the date hereof, that Lieutenant Nathan Danielson is the first ranking officer of the police department of the borough of Hawthorne, and, as such all other officers and patrolmen shall be subject to any order or orders that he may issue, verbally or in writing; that he shall be the director of said police department from and after the above date and shall take and assume the command and direction thereof.”

At no time before or since the making of the foregoing order was the prosecutor under any charges. Prom the time of service of such order he has been stripped of all powers and duties as chief of police, and Lieutenant Danielson, named in said order, has exercised all the authority of chief of police.

The present writ brings this order before us for review.

The situation here, as shown by the undisputed facts, is exactly analogous to that before this court in McGonnell v. Orange, 98 N. J. L. 642, where the resolution taking from the chief of police all his powers and duties was set aside.

That case is controlling here and the order under review is annulled and set aside, with costs.


author: Pee Curiam.

text:
    ORANGE SCREEN COMPANY, PROSECUTOR, v. SEYMOUR DRAKE, DEFENDANT.
    Submitted May term, 1930
    Decided September 18, 1930.
    Before Justices Parker, Campbell and Bodine.

      Eor the prosecutor, Turner & Statter.

    Eor the defendant, Richard Spitz.

   Pee Curiam.

The defendant was in the employ of the prosecutor as a fitter. The prosecutor manufactured and installed screens and enclosures and the work of the defendant was to go to the place where the screens, &c., were to be placed and fit and place them.

He was paid at the rate of one dollar per hour and if traveling to and from any particular job consumed more than one hour he was paid half time. His traveling expenses were paid by the employer and if he used his own car i'or such purpose he was allowed a price per mile for such traveling expense.

His instructions were to go directly from his home to the particular job upon which he happened to be working and received instructions from prosecutor’s office what pieces of work to undertake. He seldom went to the office or factory.

On July 13th, 1927, he left his home at 123 Osborne Terrace, Newark, to go to an installation job at 585 Prospect street, Maplewood, which he had started work upon on the preceding day.

He went by trolley and it was necessary for him to make a change of cars at Irvington Center, and while making this change and attempting to board another trolley car he was struck by an automobile and injured.

The deputy commissioner who heard the matter found that from the testimony before him the defendant was injured in an accident arising out of and in the course of his emplo3rment and awarded him compensation.

This was upon appeal affirmed by the Essex County Court of Common Pleas.

The writ of certiorari brings before us for review these proceedings and judgments which we are asked to set aside because there are no facts upon which to base the judgments that the defendant was injured in an accident arising out of and in the course of his employment.

We find that there was such proof and that the matter is controlled 'by the adjudications in Rachels v. Pepoon, 4 N. J. Mis. R. 40; affirmed, 104 N. J. L. 183; Fisher v. Tidewater Oil Co., 96 N. J. L. 103; affirmed, 97 Id. 324; Alberta Contracting Corp. v. Santomassimo, 8 N. J. Adv. R. 457, and O’Mara v. Kirch, 7 Id. 1099.

The proceedings and judgments under review are affirmed and the writ of certiorari dismissed, with costs.


author: Per Curiam.

text:
    JOHN OLENICK, PLAINTIFF-RESPONDENT, v. STANDARD OIL COMPANY OF NEW JERSEY, A CORPORATION, AND RICHARD C. MONTGOMERY, DEFENDANTS-APPELLANTS.
    Submitted May 16, 1930
    Decided September 18, 1930.
    Before Justices Parker, Campbell and Bobine.
    Por the appellants, M. Casewell Heine.

    Por the respondent, Edward A. Marldey.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff for $5,000 entered on the verdict of a jury in a case of collision between two automobiles. The only grounds of appeal urged are that the court erred in refusing to nonsuit and that it likewise erred in refusing to direct a verdict for the defendant. Both these motions were predicated upon the sole ground that as a court question, the plaintiff was guilty of contributory negligence. The accident happened about ten p. if. on a clear night at the intersection of East Twenty-second street, which runs east and west, and a street called Prospect street, running north and south, in the city of Bayonne. The defendant Montgomery, whose agency for the oil company is not questioned, was driving a Buick car belonging to that company westward on Twenty-second street, and, according to much of the testimony, at a high rate of speed. The plaintiff was driving his own car southerly on Prospect street and, consequently, was coming in from Montgomery’s right and, according to the statute, under normal conditions, had the right of way. Neither party seems to have stopped or slowed down, and Montgomery, when it became apparent to him that a collision was inevitable, undertook to turn his car to the left southerly into Prospect street and the two cars came together very near the sewer basin at the southwest corner.

It is not suggested that Montgomery was free from negligence and, as we have said, the only point raised is, that the court should have held plaintiff guilty of contributorjr negligence and taken the case from the jury. The accident is one of a class that are of frequent occurrence and in which a jury question is almost always presented. We do not see that the present case is any exception to this rule. The jury was entitled to find on the evidence that the plaintiff had the right of way and was not shown to be guilty of negligence in asserting it. The real question under such circumstances would probably be whether he became aware that Montgomery was not going to respect any right that he had to cross. That he had such knowledge is by no means clear, to say the least; and in view of the whole situation, we are of opinion that a jury question was presented on this matter of contributory negligence, and consequently there was no error that should warrant a reversal.

The judgment will accordingly be affirmed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SAM COHEN, PETITIONER, v. NEW JERSEY BRUSH COMPANY, RESPONDENT.
    Eor the petitioner, Samuel Cooper.
    Eor the respondent, Richard W. Ralcer.

   *******

At the time of the hearing in this case the petitioner testified in his own behalf and also called to testify Dr. Elias Shaynese and Mr. Read. The petitioner claimed that he was taken sick on April 13th, 1928, when he suffered from the dermatitis of the hand which the petitioner claimed was due to an occupational disease. The only proof there was that -the condition of the petitioner’s hand was due to an occupational- disease was that the petitioner used alcohol to wash his hands. The testimony was, however, that this alcohol was not wood alcohol but was denatured alcohol and therefore is not listed as one of the causes of occupational disease.

At the end of the petitioner’s case, the attorney for the respondent moved that the case be dismissed on the grounds that the petitioner had failed to sustain the burden of proving that he was suffering from a compensable occupational disease, and the motion was granted.

* # % Hs ❖ * *

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    HOWARD BLOCK, PETITIONER, v. WINFIELD SCOTT MARTIN, RESPONDENT.
   The testimony in this ease shows that petitioner, in December, 1928, was employed as a farm hand on the farm owned by the respondent, and while so employed on January 23d, 1929, while engaged in farming work of driving a cow from the farm barn, slipped and fell, injuring his left knee, since which time he has incurred medical expense in recovering from said injury.

The petition was filed within the statutory period and respondent has filed an answer, and the questions in dispute are whether or not the petitioner was in the employ of the respondent at the time the accident occurred and the extent of the injury.

The evidence produced before me this morning indicates that the respondent was the owner of a farm leased to one George Babb on shares, that the said George Babb became ill and thereupon the respondent went to the home of the petitioner and employed the petitioner to come and take care of his farm. The respondent denies that the petitioner was in his employ but contends that he acted merely as an agent for the said George Babb. However, from the testimony it appears to me that the respondent, Winfield Scott Martin and George Babb were engaged in a common enterprise and it was to his benefit and advantage to have the farm operated during the period that the said George Babb was in poor-health. I therefore find that the said petitioner was in the employ of Winfield Scott Martin at the time of the accident.

From the testimony of Dr. Martin Quirk it appears that the petitioner is entitled to temporary disability from March 15th, 1939, to May 37th, 1939, and that there is no permanent disability. I find as a fact that the following medical bills were incurred by reason of said accident, namely, Dr. William Eoy, $17.50; Dr. Eobert White, $38, and Franklin Hospital, $30.50.

The wages of the petitioner were $65 per month; house rent, which I find was worth $15 per month; milk, which I find was worth $7 per month, and fire wood, which I find was worth $4 per month, making a total of $91 per month or a weekly wage amounting to $31 per week on which the compensation rate would be $14 per week.

# ❖ #

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HENRY MILLER, PETITIONER, v. CHALFONTE HOTEL, LEEDS & LIPPINCOTT COMPANY, INCORPORATED, RESPONDENT.
   This is a case coming on for determination under the provisions of the Workmen’s Compensation act, in which the petitioner claims to have cut his hand at one-thirty p. m. on January 20th, 1928, on a broken plate, while he was operating a dishwashing machino. The respondent claims that no report of such an occurrence was made by the petitioner, and the record shows that a petition for compensation was not filed until February 19th, 1929, more than one year after the alleged accident. Meanwhile, the petitioner had suffered the amputation of his left hand.

Said petition was served on March 4th, and an answer, in the form of a letter, was filed on March 16th, and on March 21st a more complete answer was filed on a regular-blank form. Petitioner’s counsel, James A. Lightfoot, contends that inasmuch as the answer was not filed within ten days of the service of the petition, the respondent is precluded from interposing the one-year time limit provision of the act. The criterion is not the filing of an answer, but the fact of knowledge of an accident by the employer within ninety days of the occurrence. The statutes provide that under certain conditions a case may be heard even though the petition is not filed within the year. At such a hearing the petitioner must establish that the employer knew of the occurrence within ninety days. The act reads “unless knowledge be obtained, or notice given, within ninety days after the occurrence of the injury, no compensation shall be allowed.”

All of the witnesses for the respondent testified to the lack of knowledge at any time of any accident, and the petitioner did not produce any witness having knowledge of any accident. According to my study of the testimony, the petitioner’s statements do not dovetail together very well. He states that he stopped work and went to Dr. Eiley on January 20th, 1928. There was other testimony that, whereas he worked all day on January 19th, 1928, he did not report for work on January 20th, 1928. The petitioner further asserts that he reported the accident to Mrs. E. S. Allen on the same day that it occurred. lie further states that he told Mrs. Allen that he was under the care of Dr. Eiley. However, later in his testimony he claims that after going to Dr. Eiley, he did not again go back to the hotel and that he at no time ■was at the hotel until after his hand was amputated. Dr. Eiley, reading from his notes, states that he first treated the injured on January 21st, 1928. Dr. Eiley further testified •that although he talked with some one at the office of the hotel, there was no discussion of an accident. There was a discussion of the condition of the man.

There can be no doubt that the petitioner had something the matter with his hand. Mrs. Allen, who has charge of the welfare department, testified that the petitioner told her he had a lump on his hand. The testimony of the respondent is that he did not work after the 19th. He claims he cut his hand on the 20th. Dr. Eiley, testifying for the petitioner, states he did not come to him until the 21st, and that there was infection present at that time. The petitioner claims he went to Dr. Eile3r the same day that he was hurt.

A'study of this record fails to convince me that the petitioner met with any accident in the employ of the respondent.

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER JURGOWSKY, PETITIONER, v. ATLANTIC IRON AND METAL COMPANY, RESPONDENT.

      For the petitioner, Benjamin M. Cohen.

    For the respondent, Fllwood F. KirTcman.

   ❖ ❖ # sN ❖ ❖ #

The petitioner was employed by Abraham Shaffron to pack rags on the premises of a factory located in the borough of Woodbine, county of Cape May, and while performing said work the petitioner was injured. The petitioner contends that Abraham Shaffron was an agent of the respondent and acted within the scope of his employment and authority at the time the contract of hiring was made. The respondent urges that Mr. Shaffron was either an independent contractor or a joint adventurer.

The right of the petitioner to recover in this case depends upon the relationship that existed between Mr. Shaffron and the Atlantic Iron and Metal Company. There are four possible relationships that might have existed between the said parties: 1. Master and servant. 2. Partnership. 3. Joint adventurers. 4. Independent contractor.

Should the relationship have been that of agency or partnership the liability of the respondent is not open to doubt. Should the relationship have been that of independent contractor, there is no liability on the respondent. If the relationship was that of a joint adventurer, the liability of the respondent is open, more or less, to question.

Petitioner admits that Mr. Shaffron and the Atlantic Iron and Metal Company were not partners and the court finds that no partnership existed.

The nature of the relationship between two parties can onl}' be determined by an examination of the facts surrounding their negotiations. The relation of principal and agent exists where the employer retains the right to direct the manner in which the business shall be done and as well as the results to be accomplished, or, in other words, not only what shall be done, but how it shall be done. Our appellate courts have sustained that fundamental principal.

In accordance with the respondent’s testimony, the respondent was to supply the vehicle and labor for the transportation of the rags from Woodbine to the respondent’s premises in Atlantic City. This was not done, and the respondent instructed Mr. Shaffron to arrange for the hauling. In accordance with the instructions, Mr. Shaffron obtained an offer from a drayman and conveyed the offer to the respondent, who directed Mr. Shaffron to engage the drayman at a price agreeable to the respondent and to be paid by the respondent. In order to accomplish the transportation, not only was it necessary to arrange for a vehicle, but it was also necessary to engage labor to assist in the packing of the rags, which was a necessary part and an absolute prerequisite to the transportation. Mr. Shaffron, therefore, engaged the petitioner to pack the rags in order to enable transportation to the premises of the respondent. The costs of the petitioner’s labor was advanced by Mr. Shaffron, who was subsequently reimbursed by the respondent.

In determining the relationship between the respondent and Mr. Shaffron, it is necessary to further consider the ownership of the subject-matter of the work; the instrumentalities used, and the manner in which remuneration is made. Samuel Kravit, an officer of the Woodbine Borough Clothing Company, the seller of the rags, received payment from the respondent and passed title to the respondent, which title the respondent accepted. Therefore the ownership of the goods upon which the petitioner worked rested with the respondent.

The respondent furnished the instrumentalities, that is, the vehicle, since the use of the vehicle was paid for by the respondent. The narration of these facts show that at all times the respondent was the master of the situation and that every move was subject to his direction, and that Mr. Shaffron was only the instrument through which the respondent’s wish and will were executed, and further that at the time the petitioner was hired, Mr. Shaffron was acting not' as an employer, but as an employe of the respondent in the furtherance and in behalf of the respondent’s interest.

Mr. Shaffron was to receive as his wage a share of the profits. It is an elementary principle of law and requires no citation of authority that an agent or a servant may be paid by a portion of the profits.

The fact that the respondent sold the rags at a price agreeable to himself and over which Mr. Shaffron had no voice or control, and further that the selling price was received by the respondent and was by him kept as his own funds, gives further weight to the conclusion that the relationship between Mr. Shaffron and the respondent was that of principal and agent.

A recitation of the facts surrounding the negotiations between Mr. Shaffron and the respondent unconditionally refute the contention urged by the respondent that the legal status of Mr. Shaffron was that of an independent contractor, or a joint adventurer.

The petitioner’s duty being merely mechanical, Mr. Shaffron’s authority to engage him under the circumstances cannot be questioned. If the respondent was unknown to the petitioner, the respondent’s liability would be that of an undisclosed principal. An undisclosed principal is liable for all the acts of his agent done within the scope of the agent’s employment. The petitioner is, therefore, the respondent’s servant to the same effect as though the respondent personally had engaged him.

The sharing of the profits is urged as being indicative of a joint adventure. That phase of the situation is not all controlling and in view of the surrounding circumstances, carried but slight weight.

The court finds that the petitioner was an employe of the respondent and was acting within the course of his employment at the time he was injured.

It was stipulated by counsel for both petitioner and respondent that the petitioner is entitled to compensation for five weeks on account of temporary disability and ten weeks on account of permanent disability, making a total of fifteen weeks, should the petitioner establish his right to compensation.

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    PETER JAZYK, PETITIONER, v. AMERICAN BRIDGE COMPANY, RESPONDENT.
   This is a workmen’s compensation case coming on for determination in which there is no dispute as to fact of an accident entitling the petitioner to compensation, but one involving only the nature and extent of injury, and the amount of compensation payable.

The petitioner was struck on the head on January 23d, 1929, and knocked to the floor, striking his head thereon and causing additional injury. He received compensation for four weeks and one day at the rate of $18.42 a week.

The record shows that for a period of seven weeks and four days the -petitioner refused to permit the respondent’s doctor to examine him. He is, consequently, debarred from claiming compensation for that period of time. Thus the case has been covered for eleven weeks and five dajrs.

At the trial of this claim four doctors were present, and they were requested to confer together privately to endeavor to reach a common opinion. The consensus of opinion following this consultation was that an estimate of six months as the extent of temporary disability is eminently fair. Later, the various doctors were called upon to testify. I am unable to find any testimony warranting the conclusion that a permanent injury has resulted. The temporary disability is fixed at twenty-six weeks, of which eleven weeks and five days has been covered.

*******

W. E. Stubbs, Deputy Commissioner.


author: Haley J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MIKE SIANIEWICZ, PETITIONER, v. SCHOULER CONCRETE AND CONSTRUCTION COMPANY, RESPONDENT.
    Eor the petitioner, Stephen J. Lorenz.

    Eor the respondent, McCarter & English.

   ❖ * ❖ ❖ * ifc tfc

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with the respondent on June 29th, 1927. He says that at that time he was employed by the respondent as a laborer and while so engaged in and about his duties was struck by a passing automobile as a result of which he was thrown to the pavement and received serious permanent injury. He alleges that it was necessary for six stitches to be taken in his head; that he sustained severe bruises to the right foot and leg; that since the accident he becomes very dizzy at short intervals and is very irritable and nervous to a high degree; that his eyesight has been impaired and that he is not at the present time able to work in an ordinary manner but claims very serious total permanent disability.

Eespondent denies that the petitioner sustained any injury to his head or any severe bruises to his right foot and leg, or that the petitioner becomes dizzy or is irritable and nervous, or that his eyesight has been impaired, or that he is unable to work as normally by reason of°any accident alleged to have occurred in and out of the course of the petitioner’s employment with the respondent.

The respondent contends that the petition filed by the petitioner is out of time, inasmuch as the statutory period of one year has elapsed from the time of the accident or the time of last payment to the date of the filing of the petition. The petitioner alleges that' his petition is not out of time by reason of the fact that the final report was not signed by the petitioner nor was such report ever submitted to the petitioner, whereby the statute of limitations in this, case is claimed not to have expired.

Prom all the testimony taken in the case and in view of the information contained in the records of this court pertaining to this case, this court finds as a fact that the alleged accident to the petitioner occurred on June 29th, 1927;. that the petition was filed by the petitioner on November' 3d, 1928, more than one year after the date of the accident, or the date of last payment of compensation to the petitioner. This court further finds that the employer of the petitioner, namely the respondent herein, and the insurance carrier of the said employer complied with all the statutory requirements regarding the forms which were to be executed by them and submitted to the petitioner, and in turn filed with this department, and this court further finds that there was. no refusal of the petitioner to sign any final form. This court being satisfied, therefore, that the statutory period of limitations expired before the filing of the petition in this case, and that there is no reason why the said statutory period of limitations should not apply.

% * ❖ Hi ❖ Hi He

Haley J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH PALACONO, PETITIONER, v. GARFIELD MANUFACTURING COMPANY, RESPONDENT.
    Eor the petitioner, Nicholas Martini.

    For the respondent, John T. Fitzgerald.

   =❖ h* ❖ # % * #

I do find and determine from the evidence that the petitioner has failed to sustain the averments of his petition, or otherwise to establish ' a right to compensation under the statute. The burden of proof rests upon the petitioner in .showing by affirmative proof that the injuries complained of herein are the result of an accident, arising out of and in the course of his employment with the respondent. In this he has failed in his proof.

Upon reviewing the testimony, it appears that petitioner was struck down and seriously injured by a “hit and run” automobilist, while in an act of crossing the street on which the respondent’s plant is located in the town of Garfield, preparatory to reporting for work after the conclusion of the noontime lunch period. By rules, established by the respondent, employes were given one hour for lunch and recreation from twelve o’clock noon until one p. M. During this hour, the employes were permitted to leave the premises and partake of their luncheons wherever they desired. It must therefore be conceded that during this lunch period, the contract of employment was temporarily suspended. Surely the employes were performing no work nor furthering the interest of the respondent while away from the premises and while on a mission purely personal to themselves. The accident sustained by the petitioner was one not arising out of and in the course of employment, but an ordinary street hazard, the risk of which is commonly shared by the general public. In Bryant v. Fissell, 84 N. J. L. 72, the court held “an accident arises in the course of employment if it occurs while the employe is doing what a man so employed may reasonably do within the time which he is reasonably employed and at place where he may reasonably be during that time. An accident arises out of the employment when it is something, the risk of which might have been contemplated by a reasonable person when entering the employment as incidental to it. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fullfilling his contract of service.”

* * S: # * * ■ *

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BENJAMIN GARRICK, PETITIONER, v. WALKER-TURNER COMPANY, INCORPORATED, RESPONDENT.
    For the petitioner, E. Burke Finneriy.

    For the respondent, McCarter & English.

   ❖ ifc %

That petitioner met with an accident arising out of and in the course of his employment with respondent on December 6th, 1928, at which time his weekly wage or salary was $19.25. The accident consisted in the petitioner falling from the second story of respondent’s building through a skylight.

Petitioner claims to have received a fractured skull which resulted in a brain injury and injuries to his eyes. He has a bad heart condition which existed prior to this accident, to which the accident has no relation by way of aggravation or otherwise. Respondent denied the injuries and disability as alleged. At the suggestion of the court both sides agreed in open court to accept as a compromise on all of the injuries and disability alleged to have been received, directly or indirectly, as a result of this accident the testimony and estimate of Dr. Joseph F. Londrigan, the state physician, on said injuries and disability. Dr. Londrigan estimated the temporary disability of the petitioner from the date of the accident, December 6th, 1928, to the date of the hearing, June 21st, 1929, a total' of twenty-eight weeks. He estimated the permanent disability at twenty per cent, of total permanent disability or one hundred weeks.

These amounts of temporary and permanent disability were accepted by the parties and their attorneys by way of compromise of and for all injuries and disability to petitioner arising out of said accident, and are approved by this court as fair to both sides under said compromise agreement.

****** *

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOE NATOLI, PETITIONER, v. F. & C. HAERTER, RESPONDENT.
    For the petitioner, Spindel & Berr.

    For the respondent, McCarter & English.

   ****** *

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with the respondent on August 15th, 1928. He says that at that time he was employed by the respondent as a laborer and while working on a ladder the ladder slipped causing the petitioner to fall some distance, causing the petitioner permanent disability to his left leg. He alleges that he received injuries consisting of a fracture and displacement of the bones of the left foot and leg as a result of which he has sustained a serious and permanent disability to his left foot and leg. Respondent paid petitioner nineteen and one-seventh weeks at $17 a week as and for the petitioner’s temporary disability, and petitioner admits that said payments amply covered any temporary disability he may have sustained as a result of his alleged accident.

Respondent denies that the petitioner received a permanent disability of his left foot and leg and denies that the said injury as alleged by the petitioner is a result of an accident arising out of and in the course of his employment with the respondent, but the respondent takes all injuries, diseases and conditions of the petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing the compromise settlement not only on the petitioner’s present condition but on any and all developments in his condition of any nature whatsoever which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation, is willing to settle the entire matter on a basis of thirty-five per cent, total disability of the left foot or forty-three and three-fourths weeks at $17 a week.

The respondent has already paid the petitioner sixteen weeks’ permanent disability of the left foot at $17 a week and the petitioner acknowledges the receipt of the said amount, and the respondent agrees to pay the petitioner further twenty-seven and three-fourths weeks at $17 a week to make up the full thirty-five per cent, total disability of the left foot. The respondent also agrees to pay $50 to the petitioner in payment of his medical bill and $50 counsel fee for the petitioner’s counsel.

From the testimony and the facts stipulated, this compromise settlement is fair to both sides and is approved by this court upon the distinct understanding of the petitioner and his attorney and the respondent and its attorneys that a fundamental element of this compromise settlement is the fact that any future or further disturbances resulting in an increase of disability to the petitioner are taken into consideration, and are in a large measure the reason for the respondent’s willingness to agree to this compromise settlement.

& # # ❖

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH LESKOW, PETITIONER, v. UNITED PIECE DYE WORKS, RESPONDENT.
    For the petitioner, William R. Cohen.

    For the respondent, Richard W. Balcer.

   *******

At the time of the hearing in this case the petitioner testified in his own behalf and also called to testify his wife and daughter, together with Dr. William E. Silverstein. On behalf of the respondent the petitioner’s time records were produced and Miss Baumann was called to testify with the records of the first aid department, and Dr. Greenberg and Eeferee Mobius were also called to the stand. Although the man alleged that he received a hernia on May 14th, 1928, the first aid records show that he was first treated in the first aid department on April 27th, 1928, and Dr. Greenberg•stated that although he had already seen the man a couple ■of times before, the first record that he made in his office in regard to the man was on May 9th, 1928, when he was .suffering from a right inguinal hernia. As this was five days before the petitioner said he received a hernia, it is clear that he did not receive a right inguinal hernia on May léth, 1928. Accordingly, Referee Mobius was called to testify and •stated that the man made a statement to him on June 27th, 1928, at which time the petitioner failed to prove (1) prostration, (2) notice to his employer, or (3) medical attendance within twenty-four hours.

Accordingly, after fully considering this case, I find that the petitioner has failed to sustain the burden of proving that he suffered from a compensable hernia within the terms of the Compensation law of this state, and I hereby order that the case be dismissed.

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH RACCURRIO, PETITIONER, v. JOSEPH PELLEGRINI, RESPONDENT.
    Eor the petitioner, Kent & Kent.

    Eor the respondent, McCarter ■& English.

   $ :g: 3: $ $ $ &

Petitioner alleges that he sustained an accident arising out of and in the course of his employment with the respondent on September 1st, 1928. He says that at that time he was employed by the respondent as a laborer, and while engaged in leveling sand on Summit avenue in the city of Jersey City he was struck by a trolley car and rendered unconscious. He alleges that as a result of the said accident he sustained serious and permanent injury, particularly to his right shoulder, right elbow, right hand, cervical spine and nervous system, as a result of which injuries he alleges he is still unable to work.

Eespondent denies that there is any permanent injury t.o the petitioner’s right shoulder, right elbow, right hand, cervical spine and to his nervous system, and deneis that any such alleged injuries are the result of an accident arising out of and in the course of petitioner’s employment with respondent. Eespondent denies that there is any permanent injury whatever to the said petitioner but the respondent takes all injuries, diseases and any and all other conditions of the petitioner into consideration, including any and all ultimate results of any and all of the various diseases, injuries and conditions of the petitioner, and basing this compromise settlement not only on petitioner’s present condition but on any and all developments in his condition which may be by him or by doctors alleged to be results of his alleged accident, either directly or by way of aggravation, is willing to make a compromise settlement of the entire matter for ten per cent, of total permanent disability at the rate of $17 a week for fifty weeks, and nineteen weeks’ temporary disability at $17 a week. Eespondent also agrees to pay the sum of $150 as a counsel fee for the attorney for the petitioner, and also agrees to pay Dr. EuofE for the petitioner the sum of $25. The petitioner is to pay all other medical or other expenses incurred by him by reason of the alleged accident.

From the testimony and the facts stipulated this compromise settlement is fair to both sides and is approved by this court on the distinct understanding of the petitioner and his attorneys, and the respondent and his attorneys, that a fundamental element of this compromise settlement is the fact that any future or further disturbances resulting in an increase of disability to the petitioner are taken into consideration, and are in a large measure the reason for respondent’s willingness to agree to this compromise settlement.

* * * * # * ijs

CliAKLES E. COJKBIH, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GUSTAV J. WENKE, PETITIONER, v. BETHLEHEM STEEL CORPORATION, RESPONDENT.
    For the petitioner, Daniel J. O’Hara.

    For the respondent, Edwin Joseph O’Brien.

   * * * * * * *

The following stipulation of facts was entered into by and between the respective attorneys:

“It is stipulated and agreed on April 23d, 1928, one Gustav J. Wenke was in the employ of the Bethlehem Steel Corporation as a machinist, repairing fuel oil heaters; that he would be entitled to the maximum of $17 a week in case a recovery is had; that on April 23d, 1928, he was sent by the Bethlehem Steel Corporation to New York harbor, on the Brooklyn side, to repair or adjust a fuel oil heater on the steamer Bangu, which was lying in the dock; that in order to carry out his job it was necessary for him to be on a scaffold which was supported by a rope on one end, the other end resting on a steam pipe; that the accident arose out of the course of his employment. While on the scaffold, the rope broke and petitioner was thrown to the boiler room floor of the steamship, a distance of between six and nine feet. The Bangu was a large seagoing vessel. The petitioner was injured as a result of the fall. The steamer was in the waters of the harbor at the time of the accident.

“It is contended by the petitioner that he has the right to come under the New Jersey Workmen’s Compensation act, and it is contended by the respondent that the New Jersey Workmen’s Compensation act does not apply, and that the petitioner comes under the jurisdiction of the Long Shore-men’s and Harbor Workers’ Compensation act, as the employment at the time of the accident was maritime. The extent of the injuries is not taken into consideration in this stipulation.”

Upon motion to dismiss being made by the attorney for the respondent, on the grounds contended in the last paragraph of the above stipulation, the motion, after argument, was granted.

* * * ¡I: *

Charles E. Corbin, Deputy Commissioner.


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

    For the respondent, 8. Rusting Leap.

   On November 2d, 1927, the petitioner was in the employ of the respondent at a weekly wage of $24.75. On said date he met with an injury caused by an accident when a truck ran over his left leg. There is no dispute regarding this accident. The petitioner was treated. at once at the plant hospital where six stitches were taken in his leg. Treatment was continued every second day until April 5th, 1928, by Dr. B. F. Busby, who is the plant physician. Dr. Busby testified that he found large vericose veins all over this man’s leg, and the general testimony in this case indicates that one or more of these veins were injured as a result of the accident. Following the accident, the petitioner lost three days, and then continued working at light work until July, 1928, at which time the petitioner admitted, under cross-examination, that he left his job because they required him to do two men’s work. There is no further history of this man’s condition until November 30th, 1928, when he was examined by Dr. Busby, who testified that he found a large scar six inches in diameter, but that the wound had healed. Following this, on January 30th, 1939, this man was examined by Dr. Joseph Armao, who found extensive swelling of the leg up to the knee joint, the leg being extensively ulcerated. The man was at once ordered to bed, and was later taken to the Howard Hospital, in Philadelphia, in a delirious condition. Dr. Armao testified that in his judgment the condition found by him could be the result of trauma, and that a blow to a vericose vein would cause the condition which he found and that the condition might break down again after the conclusion of previous treatment. Dr. Busby, testifying for the respondent, states that at the time of this hearing the petitioner was not in a condition to work. There is no definite testimony as to when the petitioner may be able to resume labor. Dr. Armao was doubtful that the man would ever get well. Dr. Busby was of the opinion that there would ultimately result some permanent injury. In view of the above statements, I am of the opinion that this man is suffering a temporary disability, the duration of which cannot be determined, and that he is entitled to compensation.

It is therefore ordered that compensation at the rate of $16.50 a week be paid to the petitioner beginning January 30th, 1939, prior to which date there is no definite record of disability, and that said compensation shall cover a period of one hundred weeks, subject, however, to reconsideration of this award prior to the expiration of said one hundred weeks on motion of either attorney that the temporary disability has terminated and the matter concluded or the status reduced to a permanent condition. A counsel fee of $300 shall be paid to the petitioner’s attorney, one-half to be paid by the respondent and one-half by the petitioner.

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    HARRY E. SUTTON, PETITIONER, v. WHITE WAY TOURS, INCORPORATED, RESPONDENT.
    For the petitioner, Samuel Morris.

    For the respondent, Morris T. Cole.

   & & í|í % %

The petitioner, Harry E. Sutton, was employed by the respondent as one of its bus drivers and was paid a certain sum for each trip which he made. Sometimes he was paid $2 per trip, and at other times he was paid slightly more. His average wage was $28 per week.

On September 7th, 1928, the petitioner reported for work and was ordered by Mr. Walsh, the company’s traffic manager, to procure from Eoyal Brothers garage, located on Baltic avenue, between Pennsylvania and North Carolina avenues, Atlantic City, New Jersey, one of the company’s buses, which had been repaired. Procuring said bus was within the scope of his employment.

At the time of this request, a truck owned by Bell & Thomas, and operated by the petitioner’s boy friend, Arthur Burroughs, was standing near the company’s office and the petitioner asked Mr. Walsh for permission to be driven by Burroughs to the garage, also stating to Walsh that Burroughs would first perform an errand and then take him to the garage. Mr. Walsh nodded his assent.

The petitioner then entered the truck, and at New Jersey and Mediterranean avenues, the said truck collided with another automobile, seriously injuring and bruising the petitioner, causing a temporary disability for twenty-seven and three-sevenths weeks. The doctor’s bill amounted to $250, and the hospital bill amounted to $40.

The respondent denied liability, alleging that the petitioner was not performing any duty connected with his employment; that he was, at the time of the injury, riding in an automobile of Bell & Thomas, not connected with the respondent’s business and without the knowledge, consent or approval of the respondent.

Much of the merit of this case devolves upon whether or not the petitioner secured authorization from his superior to go for the bus which he was going to use that day. Mr. Walsh distinctly and positively stated that Sutton did not call to him as he stood up on the boardwalk. Despite this repeated declaration, at another point in his testimony, Walsh claimed that Sutton said that he was going to ride with Burroughs.

Sutton’s testimony regarding this phase of the ease is corroborated by other witnesses.

I am therefore convinced that Sutton did have authority from his superior to go for the bus which was in the garage for repairs.

The respondent denied that the petitioner was injured during the course of his employment because he was not actually engaged in a sight-seeing or transportation trip, but was merely going to the repair shop for one of the company’s •buses.

The respondent also contends that the petitioner was not injured during the course of his employment because he was receiving no money for going for the bus, he being paid piece work, to wit, a certain sum for each certain trip.

Since the petitioner was, with his master’s permission and authority, going for the bus in question, it is clear that he was performing a service for the benefit of his master, and in his master’s interest. He was not engaged in a mission for his own pleasure.

This is analogous to circumstances where a factory hand employed at piece work receives an injury while oiling his employer’s machine, preparatory to the operation of same. Certainly it could not be contended that because the hand was not actually engaged in the manufacture of the article, but was merely oiling the machine, that he would not be entitled to compensation for an injury sustained thereby.

H* ❖ Hs

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    AMELIO IANNUCCI, BY HIS NEXT FRIEND, DOMINICK IANNUCCI, HIS FATHER, PETITIONER, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, RESPONDENT.
   H* $ $

And it appearing that on September 3d, 1926, Amelio Iannucci, while employed by the respondent, met with an accident which was of such a character that he was struck on the head and rendered unconscious. Immediately following this accident the petitioner was disabled so that he was not able to resume work and has not been able to resume work up to and including the date of this order. Throughout this entire period, compensation has been paid at the rate of $9.80 per week.

It appearing that on June 18th, 1928, the respondent presented a petition to the workmen’s compensation bureau contending that it had been prejudiced by the continued and obstinate refusal of the petitioner to subject himself to proffered medical and surgical treatment deemed necessary by the physician selected by the employer. This petition was supported by the affidavit of Dr. Cotton, a psychiatrist and neurologist, who is connected with the state institution for the insane. At the hearing of the said petition, it appeared that the respondent offered to place the petitioner in the St. Charles Private Hospital, at Trenton, under the care of Dr. Cotton, who, at that time, was of the- opinion that the mental condition as manifested by the petitioner would be very much improved, if not entirety cleared up. In determination of the said petition, an order was issued by the workmen’s compensation bureau directing the petitioner to submit himself to the course of treatment prescribed by Dr. Cotton at the above-mentioned hospital-at the expense of the employer. The petitioner has refused to comply with the terms and provisions of the said order.

Whereas, on the 20th day of June, 1929, the petitioner, through his counsel, George W. Y. Moy, brought this matter on for trial on the allegations as contained in the petition for compensation and the matters set up in the answer as filed by the respondent, and for the purpose of determining the degree of disability, the parties agreed that a consultation should take place between Drs. Hicks, Cotton, Cantini, Lufburrow and Dr. Dowd, who was appointed by the deputy commissioner. These doctors who had studied and examined the petitioner in accordance with the above-stated agreement held their conference in the court room, and after having discussed the ease, Dr. Dowd was sworn as a witness and testified that the petitioner is disabled to the extent of one hundred per cent, total permanent disability; that his condition is diagnosed as dementia praecox, but as a result of the conference and the interchange of the observations made by the various doctors, he is of the opinion that the respondent has been prejudiced to the extent of seventy-five per cent, by the refusal on the part of the petitioner to subject himself to a course of treatment as prescribed by Dr. Cotton. Dr. Dowd further testified that the period that would be re-, quired for the purpose of carrying out this course of treatment would be approximately one year.

Dr. Hicks was then sworn and testified that dementia praecox is never caused byr a traumatism, but that it is a condition which was present in the petitioner long before the accident. He further testified that the petitioner at the time of his examination revealed diseased and unhealthy tonsils, decajred teeth, obstructed and congested nasal passages, and a clear and definite systemic toxic condition. He further testified that the effects of the accident have completely disappeared, and that if the petitioner would subject himself to the course of treatment as prescribed by Dr. Cotton, this toxic condition would be cleared up. At the present time Dr. Hicks estimates the petitioner’s disability to be approximately one hundred per cent, permanent and total, but that the petitioner’s continued refusal to accept the proffered medical attention has prejudiced the respondent to the extent of seventy-five per cent.

Dr. Cotton then testified and he also found that the petitioner was suffering from general systemic toxema. He also was of the opinion that trauma is never the cause of dementia praecox, and that in this particular case the disturbing factor which causes this petitioner such a disability is the toxic condition. In terms of percentage he estimates the petitioner is disabled to the extent of one hundred per cent, permanent and total, but that if he, the petitioner, would subject himself to a course of treatment under his care at the St. Charles Hospital in Trenton, for a period of approximately a year, that this percentage would be reduced to twenty-five per cent, partial permanent, and it may even be entirely cleared up. The doctors Cantini and Lufburrow both agree with the findings of the above doctors with the exception that Dr. Cantini, who is a surgeon, believes that the improvement as a result of treatment would only be fifty per cent, and Dr. Lufburrow believes that it would only be twenty-five per cent.

Prom the consideration of the testimony as rendered by these doctors, I find that the weight of the evidence indicates that at the present time and as of June 18th, 1928, the petitioner was suffering one hundred per cent, total, and that the continued willful and obstinate refusal on the part of the petitioner to accept the proffered medical attention has prejudiced the respondent to the extent of seventy-five per cent.

❖ # ❖ ❖ • - * * $

Charles E. Corbin, Deputy Commissioner.


text:
    CHARLES J. CHALMERS, PLAINTIFF, v. LUCIAN D. ANTHONY, DEFENDANT.
    Decided October 2, 1930.
    Before Gummeee, Chief Justice, and Justice Campbell.
    For the rule, Quinn, Parsons & Doremus.

      Contra, Ward Kremer.

   Pee Cueiam.

This suit was brought to recover compensation for personal injuries. According to the testimony of the plaintiff, while he was crossing Railroad avenue, in the city of Asbury Park, he was run down and injured by an automobile which belonged to the defendant and which was being driven by the latter. The trial resulted in a verdict in his favor, and the defendant thereupon applied for and was allowed the present rule.

The grounds upon which we are asked to make the rule absolute are as follows: First, that there was no evidence to prove that the ear of the defendant was involved in the accident; second, that there was no proof that the defendant was driving the car which ran down the plaintiff; and, third, that the court erroneously admitted certain testimony on the part of a witness called by the plaintiff, named Horner.

As to the first two contentions, we think that each is without merit. The plaintiff identified the defendant as the driver of the car while he was giving his testimony on the witness stand. The jury evidently believed that he told the truth in his identification and disbelieved the denial of the defendant and his witnesses. We cannot say that in doing so the jury manifestly disregarded the weight of the evidence. There was also evidence of the license number on the car and of the fact that the license designated by that number had been issued by the motor vehicle department to the defendant. Assuming that the testimony on this point was legal, it furnishes . an additional reason for refusing to set aside the verdict.

The third ground for making the rule absolute involves the legality of the testimony of Horner with relation to the ownership of the license plate. A witness named Morgan was present at the accident and made a memorandum of the license number of the car. A police officer of Asbury Park, arriving at the scene of the accident within a few minutes after its happening, investigated the situation by asking questions of parties who were present at the accident, and in a conversation with Morgan the latter gave the officer the license number, and that license number, as has already been stated, indicated the license which had been issued tbl the defendant. The contention is that the statement made by Morgan to the officer was mere hearsay and should not have been admitted. On this point the case of Rathbun v. Brancatella, 93 N. J. L. 222, is dispositive, the Court of Errors and Appeals there holding that such testimony was not objectionable as hearsay and was properly admitted.

For the reasons indicated, the rule to show cause will be discharged.


text:
    FRANK VONELLA ET AL., PLAINTIFFS, v. JOSEPH SHUBERT, DEFENDANT.
    Decided October 2, 1930.
    Before Gummere, Chibe Justice, and Justice Campbell.
    Por the rule, Edwards & Smith.

    Contra, Giordano & Golden.

   Per Curiam.

This is an automobile accident case. The plaintiff Vonella was driving a truck on Second avenue, in the city of Long Branch. His co-plaintiff, one Mion, was riding in the truck with him. Each of them was injured in a collision of this truck with an automobile which was being driven by Mrs. Charlotte Holt, and which was owned by the defendant, Shubert; and suit was brought against the latter to recover compensation for the injuries thus received. The jury awarded Vonella $700 and Mion $953. The defendant thereupon applied for and was allowed the present rule to show cause.

The plaintiffs’ claim was based upon the contention that Mrs. Holt, in driving the car, was acting as the agent of the defendant, or at least was operating it for his benefit. The proofs submitted on the part of the defendant showed that a party of friends, of whom the defendant was one and Mrs. Holt’s husband and herself were others, had rented summer quarters in a house in Long Branch, and that Shubert, who owned an automobile, left it in a garage near this house during his absences from Long Branch for the use of the other members of the party, such use being for their own pleasure or business; that on the occasion of the accident Shubert was away from Long Branch, and Mrs. Holt, by virtue of this permission granted by him, was using the ear for the purpose of taking a friend of hers to the hospital. These facts are not only sustained by a great preponderance of the evidence but were not attempted to be controverted. Accepting them as true, the verdict, which is based upon the theory that Mrs. Holt in driving the car was acting as the agent or for the benefit of Shubert, the owner, is without legal support, and, for this reason, the rule to show cause will be made absolute.