text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK CAVANAUGH, PETITIONER, v. MURPHY VARNISH COMPANY, RESPONDENT.
    Decided January 6, 1941.
    For the petitioner, David Boshein (John A. Laird, of counsel).
    For the respondent, George E. Meredith.

   *******

At the outset the petitioner’s case proceeded on one of two theories, either that a condition of pulmonary tuberculosis was caused or aggravated by the lifting of a can of paint, which caused a strain in his chest, or in the alternative, the dusty atmosphere of the room where he was working caused him to cough, which coughing it was claimed brought on the hemorrhage. The latter theory was abandoned during the course of trial as it appeared from the petitioner’s own medical witnesses that coughing would not produce a pulmonary hemorrhage or light up a latent condition of pulmonary tuberculosis.

It, therefore, becomes necessary for me to determine whether or not the petitioner met with an accident .arising out of and in the course of his employment on March 24th, 1937, the date of the alleged accident as amended during the course of trial, and if that question is answered in the affirmative, to determine whether the accident aggravated or accelerated a pre-existing condition of pulmonary tuberculosis.

The petitioner testifying in his own behalf stated that he was examined by a physician a few days prior to the date that he obtained employment with the respondent. Following this examination he was given employment, and he testified that while lifting a can or carton of paint weighing approximately seventj'-five pounds, he felt a pain in his chest, at which point he left his work, and walked some distance to a hallway where he spit np half a cupful of blood. Thereafter^ he reported back to the same physician who examined him prior to his employment, and after a further study of the condition including a sputum test, this doctor advised him not to return to work, and advised him to seek medical attention for his condition which was then diagnosed as active pulmonary tuberculosis. This constituted the petitioner’s entire proof of the happening of an accident.

Opposed to this, the respondent produced several lay witnesses. One of these was James Santoriello, a fellow worker. He testified that he saw the petitioner spitting up blood in the hallwajr, and that when he asked the petitioner what was wrong with him he replied that he thought a cold was breaking up on him. He made no mention to this witness of a strain caused by lifting paint cans.

Mr. Charles Kane was next produced by the respondent. He likewise testified that the petitioner had not at any time reported to him-that he "had suffered a strain while at work.

Dr. Eugene Robbins was next called by the respondent. He testified that he had made a pre-employment examination of the petitioner, and upon questioning him the petitioner stated that he felt all right and had not suffered from any illnesses prior to the date of his examination except for a minor cold several months before. The doctor testified that this examination was not detailed in character, but was made for the purpose of detecting gross defects. He testified that he further observed that the breath sounds over the chest were barely audible at the time of the pre-employment examination. He stated that he placed no significance on this finding in view of the man’s history of good health as the petitioner related it to him at that time. The doctor further testified that the man presented no difference clinically comparing the petitioner’s appearance on the first and second examinations.

It was further developed by the respondent’s testimony that the petitioner entered the Newark City Hospital on April 8th, 1937, approximately fifteen days after his last employment and the date on which he claims to have suffered a hemorrhage. On his admission to that hospital the petitioner gave a history to the interne which was placed in evidence by stipulation in view of the fact that the interne was at the time of the hearing located at an inaccessible hospital in Newfoundland, and had advised the respondent that he could not attend the trial. This record was entirely silent as to any claim of a strain while at work or any history of lifting paint cans. The record further showed that the petitioner liad given a history of coughing and morning sputum for two years prior to his admission; that for six months prior thereto he had felt generally fatigued; that for the past two months he had suffered an occasional left-sided chest pain, and that for five months prior to admission he suffered from chills and fever. The significance of this testimony is that all of the doctors in the case indicated that with such a history plus a positive sputum test on the date of the alleged accident, one must necessarily conclude that the petitioner had been suffering from an active tuberculosis for many months prior to the date of the alleged accident.

This case presents a factual question which, in turn, must he determined entirely on the credit that one can place in the petitioner’s testimony. In many respects the factual question hero is similar to the case of Circelli v. Falco, 19 N. J. Mis. R. 213, wherein this court stated:

* * his testimony is entirely uncorroborated. While others were on the job, the petitioner produced no one to substantiate his claim of injury, and two of his immediate superiors denied any knowledge or notice of the alleged happening.

“I do not mean to imply that corroboration is necessary in all cases. The word of a petitioner alone, if believable, is sufficient: to establish the happening of an accident; but, where corroboration is possible and the petitioner fails to produce such corroborative evidence, that fact must be considered together with the conduct of the petitioner, both following his accident and during the course of the trial. Roach v. Yellow Cab Co., 141 Atl. Rep. 767.”

From the testimony I am unable to conclude that the petitioner met with an accident arising out of and in the course of' his employment for two reasons. First, I conclude that the petitioner’s testimony is entirely unworthy of belief because of my reaction to his attitude and demeanor during the course of this trial, and for the further reason that his testimony is in direct conflict with all the other testimony in the case. As I view it, the petitioner has the knack of withholding facts or mis-stating facts, dependent on the effect that either course of action will have on his immediate objective. In other words, when the. petitioner was undergoing a pre-employment examination when it was to his obvious advantage to state that he felt fine, he so reported to Dr. Eugene Robbins, the examiner. When he went to the Newark City Hospital to seek aid in the relief of his condition, which was also obviously to his advantage, he felt impelled to state what are probably the true facts in the case, which facts lead to the conclusion that the petitioner had suffered from an active case of pulmonary tuberculosis for several months prior to the date of his alleged accident.

In the second place, if I were to take the petitioner’s testimony at its face value and close my eyes to the fact that there is no corroboration of any part of his testimony, but on the contrary), a flat contradiction from the witnesses produced by the respondent, I cannot find from his testimony that the petitioner met with an accident arising out of and in the course of his employment. There is no suggestion in his testimony that he was subjected to an unusual or severe strain, or that he slipped, or that he was in an awkward position, or any other fact which might lead me to conclude that an accident had occurred.

It would seem that the observation of the court in the case of Wolf v. National Grocery Co., 14 N. J. Mis. R. 69; 182 Atl. Rep. 625, is in point. Also the court stated at page 71 of N. J. Mis. R. and page 626 of Atl. Rep.:

“Prom a study of all the evidence, it is manifest that the lifting of the carton of groceries and the pain of the initial attack of the disease were merely coincidental. The strain of lifting had no causal relation to the petitioner’s condition. The inflammation had matured. He would have been seized with the attack regardless of the activity in which he was engaged at the time. He suffered the affliction despite the lifting, not because of it.”

Another case in point is Johnson v. Ulster Iron Works, 9 N. J. Mis. R. 239; 153 Atl. Rep. 95; affirmed by the Court of Errors and Appeals, 109 N. J. L. 267; 160 Atl. Rep. 635. In that case the decedent was seen at his usual place of work near a furnace doing a job described in the decision as a puddler. It was observed that he fell and died of a cerebral hemorrhage. In commenting on the evidence the court stated at page 239 in N. J. Mis. R.:

“There is no testimony of an accident. The man was last observed at his place of work. There was nothing unusual in the same or in the manner of the performance of his work. The cerebral hemorrhage might have preceded or followed the fall, yet the most satisfying of the medical testimony indicated a poor heart condition of long standing. * * * There is no testimony that deceased was doing anything different from that which he was called upon to do, and the usual appliances appear to have been in order. There is nothing to suggest an accident save Johnson’s death.”

To paraphrase the above language and to apply it to the facts under consideration, it might well be said, and particularly so in view of the history as shown in the Newark City Hospital records, that the petitioner had suffered from occasional pains in his chest for five or six months prior to the alleged accident, that “there is nothing to suggest an accident save the fact that the petitioner got another pain in his chest.”

Even if I were to find that the circumstances described by the petitioner spell out an accident, which I do not for the reasons above stated, I am unable to find from the greater weight and credibility of the medical testimony that the course of the pre-existing disease was in any manner altered, aggravated or accelerated by the lifting of a can of paint.

Practically all of the doctors in the case appearing for both sides stated that, unaided by history, they would have to conclude that the petitioner was suffering from the end results of a long standing active progressive pulmonary tuberculosis.

Aside from this, even the petitioner’s medical experts do not support his theory that the lifting of the can of paint produced the subsequent hemorrhage because of the time interval between the alleged lift and the onset of the hemorrhage. As stated by Dr. Leon Lewis, who appeared for the petitioner, the probability of a causal relationship between the alleged strain and the spitting up of blood followed by the activation of the disease diminishes with the lapse of time. As stated by Dr. Harmon, also appearing for the petitioner, if the strain caused the hemorrhage, the hemorrhage must immediately follow the act of lifting. He fixed the time interval as a split second, or as he expressed it, “the time it takes to draw one’s breath.” The respondent’s doctors testified that the hemorrhage would be coincidental with the lifting, and would necessarily follow as a reflex action immediately following the strain if the hemorrhage were produced by the alleged strain.

The petitioner’s testimony was that he lifted the can, felt a pain in his chest, and then walked some distance out into a hallway where for the first time he spit up blood. As I have already indicated, if this testimony were believed, and if it were accepted at its face value, it would not bring the petitioner’s case within the rules set out by his own medical experts in their testimony. Further, some doubt is cast upon the petitioner’s testimony in this respect by the evidence of James Santoriello, who testified that the truck was some distance from the place where it was supposed to be unloaded, and when he observed it the unloading had not yet been started.

Counsel for the petitioner in his brief cites the leading case on the subject of the activation of a latent or pre-existing pulmonary tuberculosis, Graves v. Burns, Lane & Richardson, 10 N. J. Mis. R. 667; 160 Atl. Rep. 399, and also the case of Rekoon v. General Lead Batteries Co., 119 N. J. L. 296; 196 Atl. Rep. 676. I am not unmindful of these decisions, and am aware of the principle of law involved. In fact, the respondent in its argument concedes that it would be liable for the activation of a dormant disease or the aggravation of an existing one if it is established that an accident occurred, and further that the facts fall within the applicable medical principles.

However, the problem here presented is purely a factual question, and I am called upon to determine two things. First, did the petitioner meet with an accident arising out of and in the course of his employment; second, did the lifting of a can of paint, even if that fact were found in the petitioner’s favor, aggravate or accelerate the pre-existing condition of pulmonary tuberculosis ? For the foregoing reasons 1 am constrained to find against the petitioner on both points. The question of notice or knowledge of an accident or injury within ninety days is also argued by the respondent in its brief, but I find it unnecessary to pass upon this question in view of my findings as above stated.

It is, therefore, * * * ordered that the petition be and the same is hereby dismissed, without costs to either party.

Harry S. Medinets, Deputy Commissioner.


source: Caselaw Access Project

author: John C. Wegner, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RAYMOND A. CLORER, PETITIONER, v. MICHAEL J. BLESSINGTON, Jr., ALSO KNOWN AS JOSEPH BLESSINGTON, RESPONDENT.
    Decided February 20, 1941.

      Dor the petitioner, David Boskein.

    For the respondent, McCormack O'Keefe (Arthur De Vincenlis, of counsel).
   *******

That on January 17th, 1938, petitioner was in the employ of the respondent, Michael J. Blessington, Jr., also known as Joseph Blessington, and while so employed he met with a compensable industrial accident, viz., as he was putting a tire on a truck the rim of the tire gave way and he was struck by a bar across the nose, right upper lip and right lower extremity, resulting in injuries thereto, and a cerebral concussion. He was taken to St. Mary’s Hospital in Orange, New Jersey, where he was confined to January 30th, 1938, Examination and X-rays of the petitioner immediately after the accident and after lengthy treatment revealed (1) a fracture of the maxilla; (2) traumatism to the alveolar regions, which necessitated the removal of five upper teeth; (3) traumatism of the lower mandible necessitating the removal of one tooth; (4) .laceration of the middle right tibia with periositis and subsequent infection, and (6) laceration of the tip of the nose. Subsequent to his discharge from the hospital the petitioner suffered symptoms of headache and nausea, attributable to the cerebral concussion suffered from the accident.

Hi H* H* Hs H* H* H<

Considerable testimony was adduced" as to whether or not the petitioner was an employe of the respondent within the meaning of the Workmen’s Compensation act. I have had the opportunity of hearing not only the testimony adduced in this case but also the testimony adduced in the case of the petitioner against Michael J. Blessington, father of the present respondent, in which respondent testified, a portion of which testimony was adduced in evidence at this hearing. The testimony in this case leaves no doubt in my mind that petitioner was an employe of the respondent at the time of the accident and had been one for many years prior thereto. The employment though perhaps not continuous was recurrent at frequent intervals and had been so over a period of many years. Eespondent's testimony which acknowledged a life long friendship with petitioner was to the effect that petitioner’s work for respondent was in the nature of a gratuity. This is contrary to the facts and admissions by respondent of payment of wages to petitioner and contrary to the fact and admissions by respondent of the frequent recurrence of the employment, and I so find. Eespondent has set up among its defenses that the petitioner was a volunteer assisting him in changing a truck tire. The burden of proof in respect to such a defense is on the respondent. Bollinger v. Wagaraw Building Supply, 122 N. J. L. 512; 6 Atl. Rep. (2d) 396. Eespondent has failed to sustain the burden imposed upon him in this respect. Petitioner, on the other hand had sustained the burden of proof in showing an employment, a compensable accident and resulting disability.

❖ # # H? « & K<

It is therefore * * * ordered that judgment be and the same is hereby entered in favor of the petitioner and against the respondent.

$$$$$$$

John C. Wegner, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SAM SWANN, PETITIONER, v. THE TOWN OF MONTCLAIR, RESPONDENT.
    Decided February 26, 1941.

      For the petitioner, Nathaniel Alper (Herman M. Wilson, of counsel).
    For the respondent, Charles H. Hanlcs.

   *******

Three major issues which may be briefly summarized as follows:

Did the petitioner meet with an accident, which arose out of and within the course of his employment?

Is the petitioner’s present disability the result of an accident ?

"Was the petitioner a casual employe?

The petitioner contends that he had been employed by the town of Montclair for some ten years; that between February 15th. and 18th, 1940, he was exposed to unusually severe weather conditions,' cold, sleet, snow and wind; that he worked abnormally long hours under these trying conditions. As.a result of this great effort and exposure he did on February 18th, 1940, suffer a cerebral hemorrhage, which resulted in a paralysis, which now permanently and totally disables' him.

That the petitioner was so exposed is not disputed, and is corroborated by the testimony of respondent’s witnesses.

The testimony of Ambrose Durnie, timekeeper, employed by the town of Montclair, reflects that petitioner worked as follows during period previous to alleged accident:

February 15th — Twelve midnight to eight a. m. Five-thirty P. M. to nine p. M.

February 16th — Bight p. m. to twelve midnight.

February 17th — Twelve midnight to ten A. M.

February 18th — Seven-thirty a. h. to twelve noon.

His duties during the above hours was snow shoveling or assisting in the removal of snow.

Eespondent contends, however, that this does not constitute an accident within the purview of the Workmen’s Compensation act. With this contention we cannot agree. In the case of Ciocca v. National Sugar Refining Company of New Jersey, 124 N. J. L. 329; 12 Atl. Rep. (2d) 130, the Supreme Court held:

“A compensable accident arises out of the employment when the proofs show that (1) the employment was one of the contributing causes without which the accident would not have happened and (2) that the accident was one of the contributing causes without which the injury or death would have not resulted.”'

In Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, the Court of Errors and Appeals held:

“The requirement that the injury or death arise by accident, under the statute is verified, if the claimant discharges the burden of proving that the condition complained of, i. e., the injury or death is related to or affected by the employment. This is to say, if but for the employment it would not have occurred.” See, also, Hentz v. Janssen Dairy Corp., 122 N. J. L. 494; 6 Atl. Rep. (2d) 409.

In view of these circumstances, I feel that the petitioner did meet with an accident which arose out of and within the course of his employment.

Supporting the contention that the disability was a result of his accident, petitioner offered the testimony of Drs. Sanford, Dowd and Blumberg. In reply to a hypothetical question, setting forth the pertinent facts in these proceedings, both Drs. Dowd and Blumberg, specialists in neurology, expressed the opinion that the stress and strain superimposed upon the petitioner by reason of his long hours, arduous work and severe exposure were the precipitating cause of his present condition, which in their opinion, is permanently and totally disabling.

To rebut this the respondent offered the testimony of Drs. Maurice Cohen and J. W. Howard.

After carefully considering the testimony in connection with this aspect of the ease, I feel that the petitioner’s contention is supported by a greater preponderance of the evidence, and, therefore, find and determine that the petitioner did in fact suffer the injuries arising by reason of his accident, which caused a permanent and total disability.

On the next issue, which is the one most vigorously urged by the respondent, the testimony of the petitioner indicates that while he had been employed bjr the town of Montclair for more than ten (10) years, his work had been confined to the water department. On February 15th, 1940, he states that he was directed by his superior, one Mr. Borgen, to report for snow cleaning, and did so. This testimony is not contradicted, nor was any evidence offered-to refute it. Under such circumstances the petitioner was carrying out the directions of his superior. We cannot agree, therefore, that any new employment was created, nor that there was in fact a severance of the old employment, for which relationship a new one was substituted.

The respondent’s claim that the petitioner was a casual employe, because he worked in another department, and performed duties which by their very nature was created by an emergency, is untenable. A great many people employed by the respondent in various different departments all assisted through that period. This court cannot believe that the respondent, nor any of the parties, intended at the time these services were rendered, that there was to be a severance of the old relationship that existed, and the creation of a new one. If the petitioner had been one of the general public hired by the town of Montclair, specifically for this job, then under the law as stated in Thompson v. Wagner, 103 N. J. L. 230; 135 Atl. Rep. 800, such would have been a casual employment, but that situation does not obtain here.

The relationship of employer and employe in this case hád come into existence many years before the occurrence of this accident; there was never a severance of that relationship. He continued on as an employe of the respondent. Under no stretch of the imagination can we place petitioner under the category of a casual employe. At all times under the circumstances lie would be an employe whose duties were “regular, periodic or recurring.”

The respondent contends that as a town it has various departments — board of public works, water department, public safety, health, &c., and that employment in one individual department followed by a transfer or lending to another department constitutes a new contract of employment with this theory I cannot agree. The doctrine as enunciated in Furey v. Thompson-Starrett Co., 1 N. J. Mis. R. 176, is still the law.

'Furthermore, on this theory an employe of a large corporation having many departments could circumvent the act by a defense that the employes were not employes of the corporation but employes of a designated department, any transfer during an emergency was a new contract of hire.

In view of these circumstances, I find that the petitioner was not a casual employe.

I therefore, find and determine that the petitioner did on February 18th, 1940, meet with an accident, which'arose out of and within the course of his employment; that as a result he suffered a period of temporary disability from February 18th, 1940, to May 20th, 1940; and as a result-of the injuries aforesaid, petitioner suffered a permanent disability to the extent of 100 per cent, of total.

❖ ❖ íji % í{4 jfi

John C. Wegner, Deputy Commissioner.


author: Quinn, President.

text:
    State Board of Tax Appeals.
    CITY OF HACKENSACK, PETITIONER, v. HACKENSACK TRUST COMPANY ET AL., RESPONDENTS.
    Decided March 4, 1941.
    For the petitioner, Horace F. Bania (by John A. Christie).

    For the respondents, Joseph L. Lippman.

   Quinn, President.

Petitioner filed certain petitions before this board within the time prescribed for the filing of petitions of appeal to this board from actions or determinations of county boards of taxation, for the purpose of setting aside the entertainment of jurisdiction by the Bergen County Board of Taxation of a number of petitions of appeal from assessments made by the petitioner upon divers parcels of realty for the year 1940, filed with that board by the Hackensack Trust Company. While not in the form prescribed by this board for petitions of appeal from county board determinations, we nevertheless proceed to consider the matters urged in said petitions, on their merits.

The county board appeals under review fall into two groups: (a) involving properties owned by the Hackensack Trust Company, individually, or as fiduciary; (b) involving properties as to which Hackensack Trust Company was mortgagee. The petitioner moved before the county board to dismiss the appeals for the reason, with respect to the (a) appeals, that while they referred to Hackensack Trust Company as petitioner, they were signed and verified by “J. Kozlik,” not affirmatively appearing to be an agent of the petitioner on the face of the petition; and with respect to the (b) appeals, for the reasons that a mortgagee has no right to take an appeal and that these petitions also referred to Hackensack Trust Company as petitioner (not stating whether as owner or agent) and were signed and verified by “J. Kozlik.”

Concerning the (b) appeals, respondent does not resist this application upon any assertion of a right to appeal as mortgagee (see Borough of Monmouth Beach v. Winfield, New Jersey Tax Reports, 1912-1934, p. 482), but upon the ground that it was, as a matter of fact, the authorized agent of the owners at the time of the filing of the county board appeals, and that J. Kozlik was one of its officers, authorized to execute and verify the petitions upon its behalf. This is also its position in reference to the (a) appeals. It furnished supplementary written proof of such agency and of the official status of J. Kozlik, as to all such appeals, before the Bergen County Board of Taxation, and was prepared, at the hearing of the present application before this board, to offer witnesses as to those facts. But petitioner waived such proof as immaterial, taking the position that the failure of the county board petitions to show the agency upon their face was fatal to the jurisdiction of that tribunal. We are unable to concur in this view.

The statute provides, R. S. 54:3-21:

“A taxpayer feeling aggrieved by the assessed valuation of his property, or feeling that he is discriminated against by the assessed valuation of other property in the county, or a taxing district which may feel discriminated against by the assessed valuation of property in the taxing district, or by the assessed valuation of property in another taxing district in the county, may on or before August fifteenth appeal to the county board of taxation by filing witli it a petition of appeal. A copy thereof shall also be filed with the clerk or attorney of the taxing district, setting forth the cause of complaint, the nature and location of the assessed property and the relief sought. The petition shall be signed and sworn to by the petitioner or his agent, and shall be in such form and contain such further information as may be from time to time prescribed by rule of the board, for the better understanding and determination of the appeal. (Italics supplied.)

We are satisfied that where a petition is filed by an agent, the jurisdiction of the county board is conditioned upon the fact of agency of the party filing or verifying the petition, and that the absence of an affirmative showing of such agency upon the face of the petition is not fatal, jurisdictionally. We are not to be understood as approving the form of the petitions here under review, but we regard the question of compliance by respondent with non-jurisdictional rules of the county board as settled by the acceptance of the petitions by that board, presumably in the exercise of what the board conceived to be sound discretion.

Petitioner’s reliance upon City of Newark v. Art Metal Works, Inc., New Jersey Tax Reports, 1934-1939, p. 403, is not in point, for the reasons that that case involved a rule of this board specifically requiring the fact of agency to be verified upon the face of the petition, and because this board there found it to be a fact that the petition was not executed by one authorized to sign same for the taxing district petitioner. Nor are any of the other authorities cited by petitioner applicable to the precise situation before us. But see City of Garfield v. Forstmann Woolen Co., Id., p. 740.

The petitions are dismissed for the reasons stated.


text:
    State Board of Tax Appeals.
    CITY OF ELIZABETH, PETITIONER, v. BAYWAY COMMUNITY CENTER, RESPONDENT.
    Decided March 4, 1941.
    For the petitioner, John J. Griffin (by Raymond Leahy).

    For the respondent, Lindabury, Depue & Faullcs (by Francis W. Thomas).

   Quinn, President.

Respondent is an incorporated organization formed for purposes of charity, and the moral and mental improvement of adults and children residing in what is known as the Bayway section of the city of Elizabeth. The proof shows abundant fulfillment of those purposes, in a literal sense. The buildings and land under appeal, which were assessed for 1939 taxes by the taxing district, are owned by the respondent and are exclusively used to house a veritable multitude of activities, too numerous to recount here in detail, charitable, social and educational in nature, for the benefit of thousands of working class families in the neighborhood of the property, at little or no cost whatever to such persons. The enterprise is financed through private philanthropy, primarily that of Mrs. John D. Rockefeller, Jr., and the Standard Oil Company of New Jersey.

Upon appeal the assessment in question was canceled by the Union County Board of Taxation. We find from the uncontroverted testimony adduced on behalf of respondent that the property before us fully qualifies for exemption from taxation, under R. S. 54:4-3.6, as exclusively used in the work of an association organized exclusively for the moral and mental improvement of men, women and children.

The objection is urged by petitioner that the respondent is a mere adjunct of the Standard Oil Company, for the promotion of the welfare of its employes. But the proof shows service to all residents of the area in question, including employes of other industrial concerns in the neighborhood, without discrimination. The fostering of the enterprise by the Standard Oil Company is quite irrevelant to the statutory issue of the right to exemption. That is fully substantiated.

The judgment of the Union County Board is affirmed.


text:
    State Board of Tax Appeals.
    BOROUGH OF LITTLE FERRY, PETITIONER, v. T. J. SOKOL ASSOCIATION, RESPONDENT.
    Decided March 18, 1941.
    Por the petitioner, Winne k& Bania (by Walter Winne).

      For the respondent, Weleck & Hawkins (by Charles Weleck).

   Quinn, President.

The Bergen County Board oí Taxation, on application filed by the respondent, entered judgment exempting from taxation for the year 1939 certain real property beneficially owned by it. The property in question is a building and the land upon which same is situated and is used for the purpose of conducting various athletic, social and recreational functions of said organization, and for other miscellaneous purposes.

Respondent justifies the action of the Bergen County Board as proper under R. S. 54:4-3.26, exempting all property used in the work and for the purposes of any fraternal organization or lodge, no part of which is used for pecuniary profit. The testimony taken before this board leaves some doubt as to whether the functions and purposes of respondent are such as to constitute it a fraternal organization or lodge, within the true intent of the statute, but that question need not be determined, since it clearly appears from the proof taken, that respondent’s building is used “for pecuniary profit,” under construction of that proviso of the statute heretofore made by this board. Meeting rooms in the building are rented to many types of organizations both public and private on the basis of regular annual rental fees. There is shown a regular and continued devotion of the property to pecuniary purposes. Fifty-Six Seminary Avenue Corp. v. City of Rahway, New Jersey Tax Reports 1934-1939, p. 666. It is further apparent, to the satisfaction of the board, that a cafe, containing a bar at which alcoholic beverages are sold, is open to the general public. While at the hearing there was some attempt made on behalf of the respondent to negative the fact of public sale, we regard it as significant that the organization held a plenary retail consumption license, as of the assessing date and subsequent thereto, under which respondent was entitled to dispense liquors to the public at large. This, too, we have heretofore regarded as a use for pecuniary profit, within the statute, regardless of whether an actual profit is made in the conduct of the enterprise. The Benevolent Protective Order of Elks Lodge No. 233 v. Borough of Red Bank, Id. p. 629. Cf. Hoboken Lodge No. 74, Benevolent Protective Order of Elks of America v. City of Hoboken, Id. p. 643; affirmed (Supreme Court, 1939), 123 N. J. L. 506; 9 Atl. Rep. (2d) 783, in which we held that the operation of a bar restricted to the use of members of a fraternal organization and their guests, in the operation of which no profit ensued, did not constitute use for pecuniary profit. '

Bor the reasons stated, the judgment of the Bergen County Board of Taxation is reversed, and the assessment as originally made is ordered reinstated.


text:
    State Board of Tax Appeals.
    CITY OF HOBOKEN, PETITIONER, v. EAST GERMAN ANNUAL CONFERENCE OF THE METHODIST EPISCOPAL CHURCH ET AL., RESPONDENTS.
    Decided March 18, 1941.
    Bor the petitioner, John J. Fallon (by Olmar J. Pellet).

    Bor the respondent, Bdmund S. Johnson and Frederick B. Bauer.

   Quinn, President.

The property involved herein was ordered exempt from taxation for the year 1939 by the Hudson County Board of Taxation. Legal title to the property is in respondent, an incorporated organization having the status of governing body over a number of churches of the Methodist Episcopal Church in this state. The building was in actual use upon the assessing date, however, not by respondent, but by Good Will Industries of New Jersey, a separate and independent corporation, organized upon the initiative of the church, for purposes of rehabilitation of aged, indigent and crippled persons. The building is used to sell products manufactured or repaired by persons of the type described, and the proceeds are used to pay their wages.

While the activities to which this property is devoted are of a worthy nature, the legislature has chosen to circumscribe the privilege of exemption of property used for charitable or religious purposes with strict conditions, one of which is that the property must be owned by the corporation claiming exemption, and that it must be exclusively devoted to the uses for which the organization was exclusively organized. R. S. 54:4-3.6. Respondent, the owner, is not entitled to claim exemption because the property is not used by it at all, much less exclusively. Good Will Industries holds a contract of purchase for the property, but equitable title does not satisfy the statutory requirement of ownership. Y. M. C. A. of Garfield v. State Board of Tax Appeals (Supreme Court, 1936), 14 N. J. Mis. R. 831; 186 Atl. Rep. 702; City of Trenton v. Trenton Masonic Temple Association (Supreme Court, 1930), 8 N. J. Mis. R. 778; 151 Atl. Rep. 753; affirmed, (Court of Errors and Appeals, 1931), 108 N. J. L. 419; 158 Atl. Rep. 395; Trustees of Shomrai Shabbos Shel Chevra B’nai Jacob v. City of Passaic, New Jersey Tax Reports, 1934-1939, p. 672; Borough of Hasbrouck Heights v. Hasbrouck Heights Hospital Association, Id. 783.

Eor the reasons stated, the judgment of the Hudson County Board of Taxation is reversed, and the assessment ordered reinstated as originally made.


author: Harry S. Medinets, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH H. CLARKE, PETITIONER, v. WARD BAKING COMPANY, RESPONDENT.
    Decided March 6, 1941.
    For the petitioner, Curtis B. Brundage.

    For the respondent, Joseph H. Clarice and John W. Taylor.

   *******

The facts in this case indicate that the petitioner was an employe of the respondent working as a truck driver. On the twenty-sixth day of April, 1940, he reported for work at the regular time, which was during the very early hours of the morning, and in accordance with his duties, commenced to load his truck. While loading his truck, according to his testimony, he left his work to go to the toilet; that while passing through a dimly lighted narrow hallway, on his way to the toilet he fell. He was seen by a fellow employe, one Schmidt, who says the petitioner slumped against the wall in a dazed condition with blood coming from/his forehead.

The petitioner contends that he suffered these injuries as a result of an accident arising out of and in the course of his employment, while the respondent, on the other hand, contends that the petitioner had a pre-existing condition with a headache and a spell of dizziness; .that his fall and his injuries were not due to anything associated with his employment, but on the contrary were due to his own illness wholly unassociated with his employment.

This much is truc, and I am satisfied it is so: the proofs satisfy me that the petitioner prior to the event of his falling, was not feeling well, he apparently had a headache and some dizziness and I am satisfied that there is no proof from which I may draw a reasonable inference that the fall was due to something connected with the petitioner’s employment. The petitioner attempted to bring into the picture a box. It was his hope that I might draw an inference that because a box was in the hallway that he probably fell over the box. I can’t subscribe to that. I am satisfied that the petitioner doesn’t really know what caused him to fall. Ho was frank enough to admit that while he was in the hospital, lying in bed and thinking over the events regarding his fall, that in reconstructing the picture he came to the conclusion that he must have fallen over the box. That conclusion is purely a figment of his own mind, and it is not the kind of proof that I should accept in reaching a conclusion that he had in fact, tripped over the box and that it was that incident that caused his injury. The fact that he may have at some time after the accident thought over the thing and attempted to place a box in his way and have that box be the cause of his fall is nothing more than a self-serving declaration on the part of the petitioner. If the petitioner had, in fact, fallen over that box, he wouldn’t have had to reconstruct the scene of the-accident and the incidents leading up thereto. He would know whether he tripped over a box and would unhesitatingly have said that it was the box that caused his fall. I am also-satisfied, if he had in fact, fallen over the box he would have immediately charged that as being the cause of his fall, and would have so informed his fellow employes who came to his-rescue, but he was silent as to that. It appears to me that the illness of the petitioner on that morning was of such nature that it is quite reasonable to draw the inference that he had another dizzy spell and fell as the result of that. He had had a similar experience that morning, although the previous experience did not result in a fall.

* * ❖ * , i¡í * *

It is not only necessary before an award can be made that it be concluded that the accident occurred “in the course of” the employment; but it must also be found that the accident arose “out of” the employment. Neither finding alone is enough. The evidence must be convincing that the cause of injury was due to a risk which was directly connected with the employment. Hulley v. Moosebrugger, 88 N. J. L. 161; 95 Atl. Rep. 1007. 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 fulfilling his contract of service. Byrant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458. Whether the proof be direct, circumstantial or presumptive, it must show that the cause of injury was due to a risk which was directly or indirectly connected with or incidental to the employment.

It is therefore insufficient on the part of the petitioner to merely show that he suffered injuries during the course of his employment, the burden being upon him to show that the injuries arose out of his employment. If I could conscientiously find that Clarke tripped over a box, then of course, that would be an incident associated with his employment and I would be obliged to find that the petitioner sustained an injury which arose out of his employment. There are cases where respondents have been held liable in the face of a history of a predisposed factor on the part of the petitioner, but from analyzing those cases, I find that liability had been imposed where the employment placed the petitioner in a dangerous situation. For example, if a man were working in the immediate vicinity of an open fire, and he fainted or had a dizzy spell and received injuries as a result of a fall in the fire, then, of course, the ultimate disability was caused not so -much by the original fainting spell or the fall, but rather the fact that Ihe employment had placed the petitioner in a dangerous situation and by reason of that dangerous situation, the end result occurred. But that is not the picture in this case, as I view it.

Reference .was made at the conclusion of the case and in the petitioner’s brief to the case of McCarthy v. General Elec tric Co., 143 Atl. Rep. 116, in the Superior Court of Pennsylvania. In that case the employe waá suffering from an organic disease which caused him to fall. He suffered concussion of the brain and died. The court pointed out that the death was caused by the fall and not by the pre-existing disease and the fall was held to constitute an accident. In that case there was no evidence to show how McCarthy “happened to fall.” The court said:

“As he fell while upon the employer’s premises and engaged in his work, the injury as sustained during the course of his employment comes within the provisions of the statute. See section 301, act of June 2d, 1915, P. L. 736, 738 (Pa. St., 1920, pp. 21983, 21984). In England and some American jurisdictions, the injury must grow out of the employment, but our statute contains no such, requirement. It is sufficient if the accidental injury happens in the course of the employment.”

As pointed out in the McCarthy case the Workmen’s Compensation act of the State of Pennsylvania mereiy requires the accident to occur during the course of an employe’s employment. The Workmen’s Compensation act of the State of Now Jersey has a dual requirement, that is, the accident must “arise out of and in the course of the employment.” The difference in the statutes is recognized in the McCarthy opinion and it therefore is clear and obvious that the McCarthy case cannot be considered as an opinion which is in any way to be considered as helpful or as setting forth the standard by which a compensable accident is to be allowed in the State of New Jersey.

*$*$$*#

Tor it is always the duty on the part of a claimant hi a compensation case, such as here, to prove that the injury was caused by (a) an accident, (b) arising out of, and (c) in the course of his employment. Dunnewald v. Harry Steers, Inc. (Court of Errors and Appeals), 89 N. J. L. 601; 99 Atl. Rep. 345. The proof, it is true, may be direct, presumptive or circumstantial, but legal proof, nevertheless, it must be.

The Supreme Court in Nardone v. Public Service Co-ordinated Transport Co., 113 N. J. L. 540, in considering this very same problem says: “Our analysis of the cases on this subject leads us to the conclusion that in each case where liability was imposed on the employer, and sustained, on presumptive or circumstantial evidence there is to be found circumstances which form the basis for a rational inference, tantamount to legal proof of the fact, that the accident resulting in death arose ‘out of’ and ‘in the course of’ the employment.”

In the ISTardone case it appeared from the proofs that the deceased employe in the performance of his duty, was required to go into an open yard to obtain coal for the furnace. On a certain morning the deceased was found unconscious in the basement; and near the coal in the yard was a shovel and wheelbarrow, showing that he had probably gone to the yard for coal. He had been struck on the head by some bricks which fractured his skull and the petitioner’s theory of the accident was that the decedent had been struck by a brick which fell from a brick stack some 250 feet in height which stands about thirty feet from the entrance to the basement in the building in which the decedent worked. The respondent’s proofs completely rebutted the petitioner’s proof that a brick had fallen from the stack and it was held that although there was proof of the finding of the decedent’s body on the floor of the garage where he had a right to be and proof of the injury to the petitioner’s head, that such was not the basis from which a rational inference or inferences tantamount to legal proof of the fact that the decedent’s death was due to a risk which he as a reasonable person might have contemplated, and that the risk belonged to or was connected with what he as a workman, had to do in fulfilling his contract of service.

Another interesting case to be noted is Armstrong v. Union County Trust Co., 14 N. J. Mis. R. 648; 186 Atl. Rep. 522. In that case, the decedent met his death while in the employ of the respondent company. He was employed as a utility man in the bank and at the time he met with the fatal accident was properly engaged in the work for which he was employed. At the particular time he had been directed to go into the cellar of the building occupied by the bank to scrape some paint off a glass door. He was found lying on the floor with a fractured skull. The petitioner proved the facts of employment; that the injuries suffered by her husband happened during the course of his employment but was not able to produce any proof as to how the happening occurred. An award was made in favor of the petitioner by the Compensation Bureau and in affirming the reversal ordered by the Court of Common Pleas, the Supreme Court in a per curiam opinion said: “The Hardone case is * * * dispositive of the complaint before us.” In other words, it concluded that the petition should be dismissed because there was “no proof of any accident arising out of the decedent’s employment.”

The Supreme Court in Jacques Wolfe & Co. v. Piplin, 14 N. J. Mis. R. 146; 183 Atl. Rep. 187, said: “The petitioner must do more than show that the injury ‘could have been’ the result of the accident.” In other words, where the proofs offered by the petitioner are meagre and uncertain, an award cannot be made in favor of the petitioner and predicated on such testimony.

In Johnson v. Ulster Iron Works, Johnson, shortly before his death, was working at a furnace. He was observed to be falling and he died of a cerebral hemorrhage. In this case, the petition was dismissed on the ground that the petitioner had failed to establish proof of an accident, the Supreme Court saying: “This is a case where the proofs show no more than a fall at the usual place of work * * In the instant case, there is not even testimony that the fall alleged to have been sustained by Clarke occurred at his usual place of work.

In this case there does not appear to be any fact tantamount to legal proof from which a reasonable inference can be drawn that Clarke suffered injuries as a result of some act or incidént associated with his employment. As against the conjectural charge that he fell over a box is the testimony of George Mayer who spoke with the petitioner shortly after the alleged occurrence and who stated that he was informed by Clarke that he had suffered from headaches all the way from his home to his place of employment the morning of the occurrence and he was also told by the petitioner that as he, Clarke, went to the men’s room “he felt dizzy” and fell without knowing what had happened. There is also the testimony of Mr. Jackson who stated that he visited the petitioner during the petitioner’s confinement at the Presbyterian Hospital. •When Mr. Jackson asked what had happened, the petitioner told him that he did not know.

****** Hi

I think it is only human nature for anyone who has been caused to fall by reason of tripping over some object to loudly, and perhaps ungentlemanly, express his opinion of the object which caused such fall; therefore, it may be said that Clarke’s failure to blaspheme “something” is indicative of the fact that he had nothing to blaspheme. The petitioner’s case is best illustrated by the fact that while in the hospital a week or two after the alleged occurrence, he attempted to reconstruct'what must have happened. There is nothing in the records of the Presbyterian Hospital, where the petitioner was confined following the occurrence, which attributes the petitioner’s fall to a “trip” or any such similar occurrence. Dr. Kathgeber, the attending physician, likewise, was not given a history by the petitioner of a fall such as he now alleges; it was not until July, some three months after the occurrence, that the petitioner for the first time informed anyone of what he now alleged must have happened. Again this is not typical of “human nature.”

* * * * * * H«

It is therefore ordered that the petition be and is hereby dismissed.

Harry S. Medinets, Deputy Commissioner.


author: Harry H. Umberger, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ZACK MILLER, PETITIONER, v. NATIONAL CHAIR CO., ET AL., RESPONDENTS.
    Decided February 28, 1941.
    For the petitioner, David lioslcein.

    For the respondent, George Meredith.

   *******

This case involves an accident which occurred on June 24th, 1938, at the plant of the Federal Furniture Company at Elkin, North Carolina. At the beginning of the trial it was stipulated that the liability feature of the case- would first be decided and if decision thereon was favorable to petitioner testimony would then be introduced touching on the disability question.

At the conclusion of the petitioner’s case on question of liability motions were made by the respective counsel of the Federal Furniture Company and the Liberty Mutual Insurance Company for dismissal of the petition as to them which was granted as petitioner’s proofs failed to establish liability on the part of either of these respondents. The case then proceeded to final conclusion against the respondents National Chair Company and New Jersey Manufacturers Casualty Insurance Company.

The undisputed facts in the case • are that in January of 1937 the petitioner became an employe of the National Chair Company at a salary of $40 per week, which some six months later was increased to $45 per week and that this latter contract was made at the plant in New Jersey and in January, 1938, the petitioner was sent by the president thereof to prepare for the opening of a new plant at Elkin, North Carolina. On March 25th, 1938, the Federal Furniture Company was incorporated under the laws of the State of North Carolina. One Marcus Schachter was the president and dominating person in both these companies. Petitioner continued working for both these companies until June 24th, 1938, when the accident in question occurred which resulted in his present disability. The said Marcus Schachter later died as a result of an automobile accident he was involved in on July 14th, 1938.

Petitioner in his own testimony stated that at the time of his employment by the National Chair Company he was told by the president thereof, the said Marcus Schachter, that he would be the employe of this concern no matter where he might work. He further testified that at no time was he notified by anyone that he was the employe of the Federal Furniture Company. Canceled checks and payroll records introduced by the petitioner show that he was paid his weekly salary by the National Chair Company and carried on its payroll records as late as July 14th, 1938.

Respondent in putting in its defense introduced many letters and other documents received or sent by the petitioner from the plant of the Federal Furniture Company in North Carolina and also a check in the sum of $183.15 of that concern issued to petitioner on July 1st, 1938, and entered on the Federal Furniture Company payroll records as wages of $185 less a deduction of $1.85 for “Federal Old Age Pension Tax.” Eespondent also introduced testimony by one Frank A. Hildebrand who described himself as a former superintendent of the Federal Furniture Company at its North Carolina plant who stated that he was informed by said Marcus Schachter that he was the boss of petitioner and had the right to direct his work and to fire him. This conversation, however, he admitted was not in the presence of petitioner. He further testified that he never discharged or attempted to discharge petitioner. The petitioner in rebuttal denied that Mr. Schachter had ever told him that said Hildebrand was to be his boss or had the right to discharge him. Eespondent also introduced into evidence the record of the North Carolina Industrial Commission which discloses that a report of the accident was made to said commission who thereupon assumed jurisdiction of the case and proceeded to authorize the payment of compensation and medical expenses pursuant to the agreement voluntarily executed under North Carolina laws by the employer therein denoted, Federal Furniture Company, the employe, Zack Miller, and the insurance carrier, Liberty Mutual Insurance Company. Under the terms of this agreement said Miller was paid by said insurance carrier sixteen weeks temporary compensation at the weekly rate of $18. Payment of compensation under said agreement was then terminated because of the subsequent refusal of said Miller to submit to medical treatment as directed.

At the conclusion of trial on the question of liability respondent moved for dismissal of the petition on the grounds that the proofs supported a finding that petitioner at the time of the accident was the employe of the Federal Furniture Company and not the respondent National Chair Company under an implied contract of hire if not an actual one, and on the further ground that petitioner is estopped from bringing a claim for compensation in this state because of the undisputed fact that he first filed a claim with the North Carolina Industrial Commission, which thereupon took jurisdiction of the same and authorized payment of compensation to petitioner' by the insurance carrier of said Federal Furniture Companjr.

A careful review of the evidence does not lead me to the conclusion that an implied contract of hire, as contended by respondent, has been shown to have replaced the original contract of hire in existence between petitioner and respondent which latter contract is not denied to have been made in New Jersey some time prior to the accident. To establish such fact it would be necessary to show that the petitioner had in fact consented to the transfer of Jhis services to the new master and accepted him as his master pro hac vice and that he had entered upon the service and submitted himself to the direction and control of the new master. Jackson v. Erie Railroad Co., 86 N. J. L. 550; 91 Atl. Rep. 1035. No direct proof was offered by respondent to show that petitioner had in fact consented to the transfer of his services to the Federal Furniture Company but seeks to raise an inference of his consent in its introduction of various documents and letters received and sent by him at the plant of the Federal Furniture Company. Similar exhibits were introduced by petitioner to show that affairs of the Federal Furniture Company were also administered by him at the plant of the respondent in New Jersey, and these circumstances do not warrant an inference of his acceptance of a new contract of hire in the service of the Federal Furniture Company, but rather'a mere loaning of his services by the National Chair Company to the Federal Furniture Company which loaning would not relieve the former of its obligation to respond to the petitioner under the Workmen’s Compensation act of New Jersey. Desposito v. American Lathing Co., 16 N. J. Mis. R. 279; 198 Atl. Rep. 841. Petitioner’s activities in the affairs of the Federal Furniture Company are not inconsistent with a loan of his services to that concern by his employer the National Chair Company. Nor is the testimony of the witness Hildebrand that he was authorized by the president of the Federal Furniture Company to direct petitioner’s work and could discharge him if necessary persuasive of petitioner’s consent to a transfer of his contract to the Federal Furniture Company inasmuch as it was admitted that such instructions were not given in the presence of petitioner; and they could therefore not be binding on said petitioner as he had no opportunity to dissent from the same nor opportunity to object to the transfer of his contract of hire to the new master, if in fact such instructions were intended to operate as a transfer of his contract to the new master. In view also of the unexplained circumstance that the petitioner was paid wages by the National Chair Company during his services at the plant of the Federal Furniture Company, 1 am unable to reach a conclusion that there was a transfer of his contract to the Federal Furniture Company. Petitioner claimed that the payment of $183.15 to him by the Federal Furniture Company was for hotel and traveling expenses incurred in North Carolina while engaged on business of the Federal Furniture Company and I am inclined to accept this explanation of the payment as it hardly seems rational to conclude that the National Chair Company would continue to pay him wages if he were in fact the employe of some other concern. In this connection it may be well to note that many of the checks received by him from the National Chair Company as wages were signed by its secretary, Charles S. Adler, who, it was admitted, was not friendly with petitioner. I conclude, therefore, that at the time of the accident petitioner was the employe of the respondent, National Chair Company, under a contract of hire made in the State of New Jersey.

The doctrine that where the contract of employment is made in this state that compensation will be awarded although the accident occurred outside the state is so well established as to require no comment.

Respondent advances as a further ground for dismissal the undisputed fact that petitioner signed an agreement with the Federal Furniture Company and its insurance carrier for payment by the latter to him of compensation under the laws of the State of North Carolina, which agreement was approved by the Industrial Commission of that state and under the terms of which agreement the said insurance carrier of respondent, Federal Furniture Company, on its behalf, paid to petitioner sixteen weeks temporary compensation at the weekly rate of $18 or a total sum of $288. This agreement states the employer to be the Federal Furniture Company and petitioner employe of this concern. Respondent contends that the execution of this agreement and acceptance of said compensation payments thereunder by petitioner estops him from denying the Federal Furniture Company was his employer at the time of the accident and further acts as an election of remedies and bars him from bringing a claim for compensation in this state. It further claims that this agreement renders the matter res judicata and under the full faith and credit clause of the Federal Constitution deprives this state of jurisdiction of the claim.

First it is to be noted that there was no actual trial or adjudication of the claim by the North Carolina courts nor by the Industrial Commission but the document in question was merely approved, apparently as an act of administration and not as the result of an adjudication or formal trial and finding on the -merits by the North Carolina Commission and because of this posture of facts the case of Martinez v. W. G. Fritz Co., 11 N. J. Mis. R. 399; 165 Atl. Rep. 873, and Di Carvallo v. G. Di Napoli, Inc., 13 N. J. Mis. R. 603; 180 Atl. Rep. 488, would not be applicable to the case at bar. The case seems rather to fall within the purview of Sweet v. Austin, 12 N. J. Mis. R. 381; 171 Atl. Rep. 684, and the payments were voluntary in nature and not the result of a formal hearing or adjudication required to render the matter res judicata and deprive the courts of this state of jurisdiction. Nor can it be said that the statements made in said agreement are conclusive admissions; they are evidential, but nothing more. Like any admissions made outside of court, they can be qualified or contradicted by parol evidence, Burns v. Edison, 92 N. J. L. 288; 105 Atl. Rep. 717, cited with approval by the Court of Errors and Appeals, Helminsky v. Ford Motor Co., 111 N. J. L. 369; 168 Atl. Rep. 420.

Nor can it be said that the execution of the said contract and acceptance of payments of compensation thereunder by the petitioner acts as an election of remedies and estops him from bringing a claim within this state that is otherwise maintainable. The only contract supporting a petition under the Compensation act is that conclusively presumed by the statute from the fact of employment, which is, that in case of accident within the terms of the statute there shall be compensation and the right to recovery rests on the contract presumed by the statute from the fact of employment, which is, that in case of accident within the terms of the statute there shall be compensation and the right to recovery rests on the contract presumed by the statute to have been made at the time of the employment, and often recovery is had not only apart from a later contract but in spite of it. Edison v. Burns, supra.

Counsel for respondent in his brief points out that petitioner after executing the contract under North Carolina law and accepting compensation payments thereunder for a period of sixteen weeks, during which time he was considered by Mr. Schachter, the president of the Federal Furniture Company, the treating doctor and his personal attorney at that time, Mr. Alexander Permison, the employe of the said Federal Furniture Company, and that shortly thereafter, because he had consulted a different attorney, said petitioner suddenly conceived the idea he was the employe of the National Chair Company when the accident occurred, and by reason of the advice of the new attorney concluded to terminate the agreement entered into under the laws of North Carolina. This assumption of what caused the petitioner’s change of procedure is undoubtedly correct, and while not of itself important, is of assistance in arriving at a determination of fact from the testimony. It indicates to me that the petitioner due to improper advice and his own inexperience, rather than from an attempt to deceive, adopted an incorrect procedure and remedy, which he now seeks to receive; and I am, therefore, unable to conclude, from statements made by him in such a situation, that he was in fact the employe of the Federal Furniture Company at the time of the accident, particularly in view of the payment of wages to him by the National Chair Company and failure to show acceptance by him of a transfer of his services to the former.

As to motion on behalf of the New Jersey Manufacturers Casualty Insurance Company that the petition be dismissed as against it because there is no proof that it had an effective policy of insurance for the benefit of the National Chair Company at the time of the accident and that the bureau has no jurisdiction to decide policy questions and can therefore make no effective award against it, suffice it to say that during the trial counsel amended the answer filed on behalf of National Chair Company to include an answer by said insurance company which is an admission by the 'latter that such policy does in fact exist and such admission is conclusive against it. That an injured employe may join both the employer and his insurance carrier in the petition and obtain an effective award against both under R. S. 34:15-84 is well settled. Brown v. Conover and American Casualty Co., 116 N. J. L. 184; 183 Atl. Rep. 304.

On the question of disability medical testimony was introduced on behalf of petitioner to the effect that he now suffers a disability permanent in nature to the extent of sixty-six and two-thirds per cent, of total. Drs. Swetlow and Beling, testifying on petitioner’s behalf, estimated his disability at that percentage, basing the same on their diagnoses of traumatic . encephalopathy, anxiety neurosis, conversion hysteria and post concussion syndrome. These witnesses based their estimates of disability on certain objective symptoms they found, but which objective symptoms they also admitted were to some extent within the control of the petitioner and on his subjective complaints. In fact Dr. Swetlow stated on cross-examination that the symptoms described by him as objective, standing alone, would not cause much loss of working ability and that the disability in main is based on subjective symptoms.

I do, therefore, for the reasons above stated, find and determine, as follows:

That on the 24th day of June, 1938, there was a relationship of employer and employe existing between petitioner and respondent, National Chair Company, by virtue of a contract of employment made in the State of New Jersey.

That on the said 24th day of June, 1938, at Elkin, North Carolina, petitioner incurred personal injuries by accident arising out of and in the course of his employment with respondent. National Chair Company.

That this respondent had due notice or knowledge of said accident and resultant injuries;

% * * * # # *

That as a result of said accident he incurred personal injuries in the nature of brain injury which results in his present condition of a past concussion syndrome and traumatic neurosis;

That there was no contract of employment existing between petitioner and Federal Furniture Company, and the petition should be dismissed as to it and the respondent Liberty Mutual Insurance Company.

It is, therefore, * * * ordered, that the said petition be and it hereby is dismissed as to the respondents Federal Furniture Company and Liberty Mutual Insurance Company.

It is further ordered that judgment final be entered in favor of the petitioner and against the respondents National Chair Company and New Jersey Manufacturers Casualty Insurance Company.

*******

Harry H. Umberger, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    LOUIS HOROWITZ, PETITIONER, v. ROTHENBERG HAT CO., A CORPORATION, AND FIDELITY AND CASUALTY CO., RESPONDENTS.
    Decided March 5, 1941.
    For the petitioner, David Roslcein.

    For the respondent, Francis X. Kenneally.

   *******

At the outset, a chronological recital of the developments in this case, as disclosed by the testimony adduced, the stipulations of counsel and the records of this bureau, is necessary in order that the issues to be determined, be comprehended.

From the evidence, it appears that for some time prior to October 1st, 1931, the petitioner, Louis Horowitz, was employed by the respondent' as a hatter. His duties entailed the handling of and coming in contact with furs which had been treated with mercury. During the course of his employment he was exposed to the said mercury with the result that he contracted a compensable occupational disease, namely, mercurial poisoning. Because of this disease the petitioner was compelled to cease work on October 1st, 1931, and it appears that he has been rendered unable to work since that date. At the present time he appears to be totally incapacitated from work by reason of this condition.

On November 9th, 1931, the petitioner filed a formal petition claiming compensation for the cause aforesaid, pursuant to the statute (N. J. S. A. 34:15-1 et seq.). During the pendency of said petition a compromise agreement and settlement was entered into and approved by Deputy Commissioner John C. Wegner, on March 22d, 1932, wherein the respondent agreed to pay the petitioner the sum of $5,250 in full settlement of the petitioner’s claim. The record of that proceeding discloses that the settlement was presented to the court for approval during which the petitioner took the stand and signified his willingness to accept the proposed settlement. The approval of the bureau was given to that settlement and the petitioner was paid the sum of $5,250 by the respondent. Out of the said sum the petitioner agreed to pay his then counsel the sum of $750.

On or about January 11th, 1938, a new claim petition, No. 40331, was filed by the petitioner seeking compensation for the same cause. Subsequent thereto, and on May 16th, 1940, a notice was served upon the attorney for the respondent that an application would be made to the Workmen’s Compensation Bureau for a hearing and adjudication on the merits of the petitioner’s original claim petition. After a hearing on said application an order was entered on May 20th, 1940, directing that testimony be taken and an adjudication be had on the merits of the petitioner’s original petition which was filed as aforesaid on November 9th, 1931.

Eespondent’s answer denied the allegations of the petition and alleged that the compensation heretofore paid was adequate. By way of a separate defense the answer set forth that petitioner’s claim was barred by the statute of limitations.

Thus, the merits of the entire controversy came on for hearing and determination before me.

A disposition of the defense that the statute of limitations has tolled and therefore the petitioner is barred from any recovery, is essential, in my opinion, before the testimony relating to the contraction of the occupational disease and the disability resulting therefrom, be considered.

The applicable portion of the statute, R. S. 34:15-22, provides:

“Ho agreement between the parties for a sum other than that which may be determined to be due by the Commissioner, Deputy Commissioner, or Referee, or a Judge of the Court of Common Pleas upon appeal, shall operate as a bar to the determination of a controversy upon its merits, or to the award of a different sum, if it shall be determined by the said Commissioner, Deputy Commissioner, Referee or Judge, that the amount agreed upon is less or more than the injured employe or his dependants are properly entitled to receive.”

In interpreting this section our appellate courts have held time and again that nothing short of a litigated hearing on the merits of the petitioner’s claim would be sufficient to satisfy the requirements of the statute. Stroebel v. Jefferson Trucking and Rigging Co., 124 N. J. L. 210; 11 Atl. Rep. (2d) 297; affirmed, 125 N. J. L. 484; 15 Atl. Rep. (2d) 805; Ruoff v. Blasi, 117 N. J. L. 47; 186 Atl. Rep. 851; affirmed, 118 N. J. L. 314; 191 Atl. Rep. 877; Eldridge v. Eldridge, 17 N. J. Mis. R. 232; 8 Atl. Rep. (2d) 188; J. W. Ferguson Co. v. Seaman, 119 N. J. L. 575; 197 Atl. Rep. 245; affirming 15 N. J. Mis. R. 393; 191 Atl. Rep. 739; Corasio v. Imhoff, Berg Silk Dyeing Co., 16 N. J. Mis. R. 13; 195 Atl. Rep. 620; Eiken v. O’Brien, 178 Id. 373; King v. Western Electric Co., 122 N. J. L. 442; 5 Atl. Rep. (2d) 490; Solazco v. Carroll, 14 N. J. Mis. R. 435; 185 Atl. Rep. 510.

It is evident, therefore, that the Workmen’s Compensation Bureau in approving the 1932 settlement, did not have the authority to preclude the petitioner from a hearing on the merits of his case to the e.nd that he obtain an award of compensation for the full extent of his disability. Controlling in every respect are the decisions in the Stroebel v. Jefferson Trucking case, supra, and Rightmyer v. Borough of Totowa, 16 N. J. Mis. R. 161; 197 Atl. Rep. 650; affirmed, 17 N. J. Mis. R. 300; 8 Atl. Rep. (2d) 772. The language employed in the Stroebel case maybe applied to the determination of the issue of whether or not the statute of limitations in the' instant case operates to bar the petitioner’s claim. In the cited ease, it was held:

“The present proceeding was viewed, ultimately, as one designed To adjudicate the original petition;’ and the deputy commissioner ruled that it was within his province to hear the original petition on the merits. The compromise agreement, notwithstanding the bureau’s approval, does not constitute a bar to the determination of the original petition on the merits. It is lacking in the element of finality.”

In passing, it is to be observed that the procedure employed in the case at bar was similar to that which met with the approval of the appellate tribunal in the Stroebel ease, supra. A notice was served upon and acknowledged by counsel for the respondent on May 16th, 1940, in which “notice is given that application is to be made for a hearing and an adjudication of the petitioner’s claim on his original petition, bio. 19288.” This application came on for argument and was duly considered by me following which on the authority of the last two cited cases I entered an order allowing the petitioner a full hearing on the merits of his original claim petition.

While the foregoing may be dispositive of the defense of the statute of limitations interposed by the respondent, it is of interest to observe that the second petition of the employe was filed within two years from the date of the last payment of compensation. The payment made to the petitioner under the settlement agreement entered into on March 22d, 1932, amounted to $5,250. This sum, in view of his $20 weekly compensation rate would be equivalent to approximately 262% weeks of compensation. Inasmuch as the petitioner’s cause of action accrued on or about October 1st, 1931, it is evident that the application of the payments thus made to the period of time which has elapsed since the disability began, we find that the last date upon which compensation ought to have been paid pursuant to said compromise agreement, was in October, 1936. King v. Western Electric Co., 122 N. J. L. 442; 5 Atl. Rep. (2d) 490; Bucci v. Kirkpatrick, 11 N. J. Mis. R. 377; 166 Atl. Rep. 203. Thus, the second petition filed on or about January 11th, 1938, appears to have been instituted clearly within the statutory limitation period.

Accordingly, I find and determine that no hearing and adjudication on the merits of the original claim petition which was filed on November 9th, 1931, having been had, the petitioner, under the decisions, in the Stroebel and Rightmyer cases, supra, was entitled as a matter of right to same. There exists not the slightest doubt that the first claim petition upon which the present hearing is held, was filed as within time. The defense of the statute of limitations is not available to the respondent in the case at bar and I so find.

We next proceed to a consideration of the merits of the petitioner’s claim. I find from the testimony adduced, that the petitioner was employed as a hatter by the respondent for some time prior to October 1st, 1931. As such, his duties required and entailed his handling and coming in contact with furs which had been treated with mercury. The medical evidence is compelling and I determine that during the course of his employment with the respondent the petitioner was exposed to mercury with the result that he contracted a compensable occupational disease, namely, mercurial poisoning, for which he is entitled to recover compensation under the terms of the Workmen’s Compensation act.

There appeared on behalf of the petitioner, Dr. William S. Berger and Dr. Otto G. Matheke, who treated the petitioner from the termination of the petitioner’s employment on October 1st, 1931, to the present date.

Dr. Berger testified inter alia, that the petitioner suffered from the acute phases of mercurial poisoning for about two years following this exposure to approximately September 31st, 1933. He exhibited symptoms which included a toxic mercurial dermatitis, nervous manifestations which recurrently flared up acutely; marked tremors and general nervous and mental symptoms. The petitioner, at the time of the earlier settlement, was, in the doctor’s opinion, totally disabled. Moreover, there developed as part of his mercurial poisoning symptoms,.a Parkinson syndrome from which he is now suffering and by reason of all of the foregoing, he has been totally and permanently disabled.

The testimony of Dr. Matheke, also a treating physician, is of like import as is the testimony and findings of Dr. J. Sobin, a neurologist, who had occasion to observe the petitioner from January, 1932, to the time of the trial of this cause. No purpose would be served in analyzing their testimony in detail. Suffice it to say that their medical findings and conclusions are to the effect that the petitioner is totally and permanently disabled as a result of the mercurial poisoning which he contracted in the respondent’s employ.

On behalf of the respondent, Dr. Irving Willner appeared and testified. It was his opinion that the petitioner’s condition was" due to a chronic mercurial poisoning and his permanent disability was total.

I have no hesitation in reaching the conclusion and so find that the petitioner is entitled to compensation by reason of his contraction of a compensable occupational disease of mercurial poisoning while in the employ of the respondent. I find that he is entitled to compensation for temporary disability from October 1st, 1931, to September 30th, 1933, a period of 104 weeks, at the compensation rate of $20 per week, making a total of $2,080. The respondent having already paid the petitioner the sum of $5,250 it is entitled to a credit therefor, and the temporary compensation herein adjudged to be due the petitioner, shall be considered as paid.

I further find that the petitioner is entitled to compensation for total permanent disability, or a period of 400 weeks, from September 30th, 1933, to June 9th, 1941, at the compensation rate of $20 per week, amounting to $8,000. After deducting from the sum of $5,250 paid as aforesaid by the respondent, the sum of $2,080 for temporary disability, there remains a balance of $3,170, which constitutes a credit to which the respondent is entitled to on account of the permanent disability award. Thus, the balance due from the respondent to the petitioner for compensation for permanent disability amounts to $4,830. The amount of permanent compensation due from the date of the termination of the temporary disability, September 30th, 1933, to the date of the signing of this order, is hereby declared due and owing and is to be paid forthwith, less the credit to which the respondent is entitled to in the amount of $3,170, as hereinabove referred to, and'the balance of the award is to be paid in installments, as provided by the Workmen’s Compensation act.

And it is further ordered, that upon the expiration of the 400-week period hereinabove set -forth, this petitioner shall be entitled to further benefits pursuant to the provisions of N. J. R. S. 34:15-12b.

* ** * * ❖ ❖ *

It is therefore, * * * ordered, that judgment be and the same is hereby entered in favor of the petitioner, and against the respondent, in conformity with the above'findings.

Harry S. Medinets, Deputy Commissioner.


text:
    State Board of Tax Appeals.
    CAMDEN BRANCH NO. 57, FLEET RESERVE ASSOCIATION, PETITIONER, v. CITY OF CAMDEN, RESPONDENT.
    Decided April 1, 1941.
    For the petitioner, Raymond Sallzman.

    For the respondent, John J. Orean and William J. 8hepp.

   Quinn, President.

Petitioner filed 'with the Camden County Board of Taxation an application for exemption from taxation on a plot of ground, the building thereon and the personal property located therein, owned by it and used for its purposes, all of which was assessed for the year 1939 by the city of Camden. The application was denied and the appeal is from that determination.

The claim for exemption is based, in the alternative, upon sections 54:4-3.5 and 54:4-3.25 of the Revised Statutes, N. J. S. A. 54:4-3.5 and 54:4-3.25. These provide, respectively, as follows:

54:4-3.5. “Keal estate or personal property owned and used for military purposes by any organization under the jurisdiction of this state, or of the United States, shall be exempt from taxation under this chapter on condition that all income derived from the property above the expense of its maintenance and repair shall be used exclusively for such military purposes; and any building, real estate or personal property used by an organization composed entirely of' veterans of any war of the United States shall be exempt from taxation under this chapter.”

54:4-3.25. “All real and personal property used in the work and for the purposes of one or more bona fide national war veterans organizations or posts, or bona fide affiliated associations, whether incorporated or unincorporated, existing and established on June eighteenth, one thousand nine hundred and thirty-six, shall be exempt from taxation under this chapter if the legal or beneficial ownership of such property is in one or more of said organizations, or posts, or affiliated associations.”

It may be noted at the outset that R. S. 54:4-3.25; N. J. S. A. 54:4-3.25, cannot avail petitioner, as it was organized subsequent to June 18th, 1936, having been incorporated May 25th, 1938. Although it was granted a charter January 23d, 1933, there is. nothing before us to show that it was actually “existing and established” prior to its incorporation. For reasons hereinafter discussed, furthermore, it is- not satisfactorily established that petitioner is a “war veterans’ organization,” in view of the nature of its membership, and the qualifications for membership set forth in its constitution and by-laws.

The claim'posited upon R. S. 54:4-3.5; N. J. S. A. 54:4-3.5, depends upon whether the proofs show that petitioner is composed “entirely of veterans of any war of the United States.” We conclude they do not. Article II, section 1 of the constitution of the organization provides that membership is open to any person now transferred to the sixteen or twenty year classes of the Fleet Naval Reserve or Marine Corps Reserve, to enlisted men in the service of the United States Navy or Marine Corps and having eight or more years honorable service and who continue in the service until transferred to the Fleet Naval Reserve or retired, and to men on the retired list of the United States Navy or Marine Corps. In no case is service in any war a prerequisite to membership.

The proof with respect to the actual service background of petitioner’s membership, as of the assessing date, is to the effect that all of the members are veterans of either the World War, Spanish-American War, or as stated by the witness at the hearing, “of some campaign or war. For instance, the Nicaragua troubles that we had in the late twenties or the China troubles in the earlier thirties prior to and at the same time that the Panay was machine-gunned out there.” We regard this testimony as insufficient to establish that all of petitioner’s members were, on October 1st, 1938, the assessing day, “veterans of any war of the United States.” A skirmish or an expedition is not the equivalent of a war. See O’Neill v. Central Leather Co. (Court of Errors and Appeals, 1915), 87 N. J. L. 552; 94 Atl. Rep. 789. Neither our own knowledge nor any proof here adduced substantiates the contention that the Nicaraguan or China incidents referred to partake of the character of a formal state of armed conflict between our own and any foreign power, sufficient to qualify one wdio saw service therein as a veteran of a war of the United States. In view of the paucity of detail in the proof as to the time and place of war service of each of petitioner’s members, and of the circumstance that service in a war of any type whatever is not a qualification for membership in the organization, we regard the burden of proof which is carried by any exemption claimant, as not carried by petitioner in this matter, under either of the statutory provisions referred to. In ease of doubt an exemption statute should be construed in favor of the rule which would subject all property to a just.share of the public burden. Princeton Country Day School v. State Board of Tax Appeals (Supreme Court, 1934), 113 N. J. L. 515; 175 Atl. Rep. 136.

The application for exemption is denied and the judgment of the Camden County Board of Taxation affirmed.


text:
    State Board of Tax Appeals.
    MIDDLESEX REFINING COMPANY, PETITIONER, v. J. H. THAYER MARTIN, STATE TAX COMMISSIONER, RESPONDENT.
    Decided April 1, 1941.
    For the petitioner, McCarter, English & Egner (by Thomas J. Miller).

    For the respondent, H. P. Moorhead and David T. Wilentz, attorney-general (by John Solan).

   Quinn, President.

Petitioner claims to be a manufacturing corporation with more than fifty per cent, of its capital stock issued and outstanding invested in manufacturing pursuits carried on in this state, and therefore exempt from the assessment of corporation franchise taxes under R. S. 54:13-7; N. J. S. A. 54:13-7. It accordingly appeals from an assessment of such taxes levied against it by the State Tax Department for the year 1939.

The sketchy proofs at the hearing show the following facts only, although petitioner’s counsel make assertion of other facts in their brief. Petitioner is the owner of a building constituting an oil refinery, together with miscellaneous machinery and equipment for such purposes, situated at Piscataway in Middlesex county. On April 1st, 1937, petitioner leased the entire plant and its equipment to Seaboard Refining Company, which stocked a quantity of crude oil upon the premises and stored it there for several years, including all of the year 1939. The lease was not introduced in evidence, and presumably petitioner was simply in the relationship of landlord to the Seaboard Refining Company. It appears that from some time in 1937 and through the year 1939, no actual refining took place on the premises because of unfavorable economic conditions. In any event the Seaboard Company applied for and received exemption from franchise tax for the year 1939, by reason of its operations at this plant.

Petitioner contends that, as of the assessing date, January 1st, 1939, the process of refining at the plant was in only a temporary state of suspension, so that there was no loss of the exemption based on cessation of actual manufacturing. Raritan Radiator Co. v. State Tax Department, New Jersey Tax Reports, 1912-1934, p. 667; Vulcanite Portland Cement Co. v. State Tax Commissioner, New Jersey Tax Reports, 1934-1939, p. 662.

It is then argued that the manufacturing activities at the plant are so closely tied up with petitioner, that it is itself to be considered a manufacuring company, in the sense of the statute. We think not.

The connecting circumstances shown by the proofs are these: A Mr. Graham was president of the petitioner corporation, and held two-thirds of the common stock of the Seaboard Company. Either petitioner alone, or petitioner and Mr. Graham together (it is not clear which from the testimony), hold all of the preferred stock in Seaboard. Petitioner finds itself unable to engage in refining directly, or even to invest in oil, because it is subject to the claims of a considerable number of creditors. The plant itself is “protected” from creditors by a large mortgage thereon arranged by Mr. Graham. The whole picture presented by the proofs is that of an owner company, carefully segregated and maintained apart from an operating company, occupying only the relationship of landlord and tenant. That of itself does not operate to transfer the status of the lessee manufacturing company to the lessor corporation. Balbach Smelting and Refining Co. v. State Board (Supreme Court, 1929), 145 Atl. Rep. 922.

Nor is the situation here presented assimilable to that involved in North American Phonograph Co. v. Board of Assessors (Supreme Court, 1892), 54 N. J. L. 430; 24 Atl. Rep. 507; affirmed (Court of Errors and Appeals, 1894), 56 N. J. L. 717; 32 Atl. Rep. 2. In that case the North American company, owner of exclusive patents for the manufacture of phonographs, in which its capital was almost exclusively invested, entered into an agreement with Edison Phonograph Works, whereby sole and exclusive rights to manufacture the patented article were granted to the Edison company, and the latter agreed not to manufacture phonographs for use within the United States for parties other than North American. The court concluded that the manufacturing activities under the agreement by Edison constituted North American a manufacturing company, the decision being based upon the finding that the real relationship between the parties was that of principal and agent. No such relationship is even remotely suggested in the instant ease between petitioner and Seaboard. Middlesex Refining Company is not shown to bear any of the expense and risk of the operating company in the same sense as did the North American Company in the cited case. And see Alton Machinery Co. v. State Board (Supreme Court, 1907), 69 Atl. Rep. 451. Because of its precarious credit situation, Mr. Graham testifies that he could not afford to permit it to do so.

The claim for exemption is denied and the assessment affirmed.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    DOUGLAS T. DEWAR, PETITIONER, v. GENERAL MOTORS CORPORATION, LINDEN DIVISION, RESPONDENT.
    Decided March 28, 1941.
    For the petitioner, Samuel L. Rothbard (Henry Harris, of counsel).
    For the respondent, McDermott, JEnright «£■ Carpenter (Carl S. Kuebler, of counsel).
   *******

From the testimony presented before me, and the depositions taken of the petitioner at the Presbyterian Hospital, it appears that the petitioner was employed by the respondent on November 8th, 194.0, working on the night shift. He came to work in the automobile of a co-employe, John Arace, who parked his car in the parking lot owned, controlled and operated by the respondent, immediately adjacent to its plant at Linden, New Jersey. Hpon completion of his work at approximately three a. m., the petitioner and John Arace checked out from the respondent’s plant and proceeded across the parking lot where their automobile was parked. The parking lot was divided into different lanes by wooden markers and the petitioner tripped over one of the wooden markers and fell, causing a laceration and injury to his left knee. He at no time left the premises of the respondent company. He returned to the respondent’s plant where he received first aid, and his leg was cleaned of the dirt and cinders and bandaged by the respondent’s nurse. He returned the following day and was treated by the respondent’s plant physician and continued to work until November 11th, 1940, when he became acutely ill so that his wife called Dr. John J. Torppey, who treated the .petitioner and sent him to the Presbyterian Hospital where he is still a patient because of complications and infections resulting from the injury to his knee.

Thereafter the respondent denied liability for the petitioner’s condition and refused him treatment when requested to do so. The basis for. the denial of liability by the respondent as set forth in its answer was that the petitioner had finished his work and was outside of- its plant when the accident occurred, and further, that the petitioner at the time of the accident was running through its parking lot in violation of the respondent’s rules.

The testimony is undisputed that the parking lot of the respondent adjacent to its plant was owned, controlled and supervised by the respondent as a parking ground for the automobiles of its employes. It was within the confines of the respondent’s premises.

In the case of McMillan v. Calco Chemical Co., 15 N. J. Mis. R. 68; 188 Atl. Rep. 694, our Supreme Court held that an employe who checked out of the factory wherein he worked and who was killed while crossing a railroad right of way on his employer’s premises, had met with an accident arising out of and in the course of his employment.

In the instant case, the petitioner, immediately after checking out of the respondent’s plant, proceeded to the parking lot within the confines of the respondent’s premises and at no time left the confines -of the premises. An injury suffered on the said parking lot owned and controlled by the respondent for the mutual benefit of both the respondent and the petitioner, arises out of and in the course of the petitioner’s employment.

The respondent’s defense that the accident resulted from a violation of the employer’s rules must likewise fail.

The respondent contends that the petitioner violated the company rule which states “running in the plant is not permitted at any time.” In the first place the petitioner and his co-employe both testified that he was not running when the accident occurred, but was walking when he tripped over a wooden marker. Furthermore, the accident did not occur in the plant of the respondent, but occurred in the parking lot outside of the plant. The rule cited is therefore not applicable. However, the law is well settled that disobedience of an order or breach of a rule is not of itself sufficient to bar a claim for compensation as long as the workman keeps within the sphere of his employment. Belyus v. Wilkinson Gaddis Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed, 116 N. J. L. 92; 182 Atl. Rep. 873; Bubis v. Flockhart Foundry Co., 15 N. J. Mis. R. 299; 191 Atl. Rep. 281; affirmed, 120 N. J. L. 177; 198 Atl. Rep. 851.

I therefore find and determine that the petitioner met with an accident arising out of and in the course of his employment by the respondent on November 8th, 1940, resulting in injuries from which he is still under hospitalization and medical treatment.

John C. Wegner, Deputy Commissioner.