text:
    GEORGE KINSMANN ET AL. v. THE FISCH HOUSE FURNISHING COMPANY ET AL.
    Decided December 3, 1925.
    Landlord and Tenant — Fire Seriously Damaging Premises— Lease Contained Provision For Its Termination in Event That Landlord Decided to Rebuild — Tenant Made a Cash Deposit and Brought Suit For Its Recovery Upon Landlord’s Decision to Rebuild — Statute Which Provides That Tenant Shall Not Be Excused From Payment of Rent Unless He Shows That Fire Did Not Result From Any Negligence or Fault On His Part, Aiso, Provides That This Provision Should Not Apply When in Conflict With Terms of Lease— Trial Judge Not Obliged to Delay Progress of Cause to Receive Requests to Charge After Summing Up Begins.
    On defendant's rule to show cause.
    Before Gummere, Chief Justice, and Justices Kalisoh and Campbell.
    For the rule, Charlea A. Ratlibun.

      Contra, Samuel C. Afeyeraon.

   Per Curiam.

The defendant corporation was the owner of the property commonly known as the Mansion House, in Morristown, New Jersey. A lease was made between it and the plaintiffs, whereby the defendant corporation agreed to rent a portion of the property to them for a term of five years. The remaining portion of the premises the defendant corporation retained for its own purposes. The rent was fixed by the lease at $4,500 annually, payable in installments of $31*5, in advance, on the first day of each month. One of the provisions of the lease required the plaintiffs to deposit with the lessor $2,000, as security for the performance of the provisions thereof, which were binding on them, and this they did. The plaintiffs entered into possession in July, 1923, and on the 29th of November of that year the building caught fire and was partially destroyed. The plaintiffs then ceased to occupy the premises, they having been rendered untenable by the fire, and the defendant corporation afterward took possession thereof, apparently for the purpose of rebuilding or repairing the damaged structure. The work, however, was not begun until the latter part of January following, and was not completed until some time in April then next. The present suit was brought by the plaintiffs about the time the work was completed to recover the deposit of $2,000 made by them (the rents which had theretofore accrued having been paid up), their claim being that the lease had been terminated after the fire by the action of the landlord. The provision of the lease upon which this claim is based is as follows: “The tenants shall, in case of fire, give immediate notice thereof to the landlord, who shall thereupon cause the damage to be repaired forthwith, but" if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease and the accrued' rent be paid up to the time of the fire.” The trial having resulted in a verdict in favor of the plaintiffs, and a rule to show cause having been allowed to the defendants, we are now asked to direct a new trial, for the reasons which will hereafter be considered.

The first contention is that the verdict is against the weight of the evidence and the law of the case, in that the proof shows that the fire occurred through the negligence of the plaintiffs or by their intentional act, the court having charged the jury that, in either of these events, their verdict must be for the defendants. We find nothing to support this contention. There was no proof offered by the defendants to justify a finding of negligence against the plaintiffs, and the finding of the jury that the plaintiffs had not been guilty of a criminal offense by setting fire, or conniving at setting fire, to the leased premises was not contrary to the weight of the evidence.

It is also contended that the trial court erred in charging the jury that, if the defendants had failed to repair the damaged building with reasonable promptness, the tenants were entitled to a return of their $2,000 deposit. The argument in support of this contention is that the defendants were not entitled to a return of the deposit unless there had been a termination of the lease, and that there could not have been a termination thereof unless there had been a destruction of the building without fault, carelessness or negligence on the part of the plaintiffs. In considering this point, it is to be observed that the provision of the lease, which has already been set out, recites that “if the premises be so damaged that the landlord shall decide to rebuild, the term shall cease.” Consequently, whether or not the term had come to an end, depended upon whether or not the landlord had decided to rebuild, and on this point the president of the defendant company, Mr. Cone, testified that some weeks after the fire “we started to rebuild” the damaged structure, “and intended to rent it as a hotel.” We find nothing in the case contradictory of this statement by the president, and this action by his company, by the express provision of the lease, brought the term of the plaintiffs to an end. The ground upon which the criticism of the charge is rested being unsubstantial, the verdict should not be set aside because of alleged error.

It is further contended that the trial judge erroneously refused to direct a verdict in favor of the defendants at the close of the entire case. The motion for the direction was based upon two grounds — first, that the burden rested upon the plaintiffs to'show that the fire was not the result of their fault or neglect, and that they had not carried this burden, and second, that, under the recited provision of the lease, the only relief to which the tenants were entitled was to he discharged from the payment of the rent accruing from the time of the fire .to the completion of. the repairs. ' The first ground upon which the .motion was rested is based upon the thirty-first section ¡of our Landlord and Tenant -act (Comp. Slat., p. 3078), which provides that a tenant shall not be excused from the payment of rent by reason of a fire occurring in the leased premises unless he shows that such fire has not resulted from any negligence or fault on his part, But the section appealed to expressly provides that it shall not apply to cases where it conflicts with provisions which the parties have stipulated in their agreement or lease. In the present case, the lease having stipulated that the. term should cease in case the landlord should decide to rebuild, and the accrued rent having been paid up to the time of the fire, the statutory provisions appealed to has no application. As to the second point upon which the motion was rested, it is disposed of by what we have already declared.

The last ground upon which we are asked to make the rule absolute- is based upon the refusal of the court to charge certain requests submitted by counsel for the defendant. It appears from the record, however, that the requests were not submitted until after the summing up by counsel was well under way, and the court refused to accept the requests or consider them because they had not been presented before the summing up was begun. We think-this was a matter within the discretion of the trial judge. It is for him to. say whether he will delay the progress of the cause while he reads and considers submitted requests, whether they be one or fifty in number, or whether he will refuse to accept them, and, where nothing appears except the refusal and the ground upon which it was rested, we cannot say that the judicial discretion was abused.

On the whole case, we conclude that the rule to show cause should be discharged.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    Essex County Circuit Court.
    John Jaskiewicz, plaintiff, v. Michael Salamander and Isidor Kaplan, defendants.
    [Decided November 20th, 1925.]
    Insolvent Debtors — Bond—Provisoin That Judgment Debtor “Shall Appear Before the Next Court of Common Pleas to be Holden,” &c. — Held, to Mean Petition is Filed at the Opening or During the Next Stated Term, That Reference is to the Next “Term,” Not Next “Session.”
    On action at law.
    Before Judge Smith.

      Mr. Homer D. Smith, for the plaintiff.

      Mr. Irving W. Teeple, for the defendants.
   Smith, Judge.

This is an application to strike out the defendants’ answer as sham and frivolous.

The action is brought upon an insolvency bond against the principal and surety, by the plaintiff holding the judgment against the principal, to recover the amount due on the judgment. The principal was arrested by the sheriff of Essex county in January, 1925, and on January 21st, 1925, he gave bond under section 2 of the act for the relief of persons imprisoned on civil process. 8 Comp. Stat. § 8 p. 8884.

It will be noticed that the bond was filed and the defendant released during the December term, 1924. Summons in the action on the bond against the principal and surety was issued May 20th, 1925, and on June 3d, 1925, an insolvency petition under .the bond was presented to the Essex county court oí common pleas; on the following day service of the summons and complaint in this action was made upon the defendant judgment debtor. The insolvency proceedings were evidently regularly continued until November 6th, 1925, when the defendant was surrendered on the court’s refusal to discharge.

The sharp point of law presented on this application to strike out the answer as frivolous, is the question of whether or not the provision in the bond providing that the defendant judgment'debtor “shall appear before the next court of common pleas to be holden,” &c., refers to the next session of the court or the next term of the court, and if it means the next term of the court, then is it necessary to appear and present the petition on the opening day of the next term of the court? My understanding of the practice which has been built up under the Insolvent Debtor’s act is that the petition is filed at the opening or during the next stated term of the court of common pleas, and this practice seems to have been recognized in the cases of Heit v. Boyle, 60 N. J. Law 321; Glyn v. Kelly, 71 N. J. Law 10, and Sholes v. Eisner, 90 N. J. Law 151.

A practice which has been approved by the supreme court and court of errors and appeals should not be disturbed at the circuit. The construction, which has been recognized by the upper courts, commenced at a time when the sessions of the court of common pleas only lasted a very short time following the opening of each term. It is true that at the present time the sessions are practically continuous. Still, if there is to be a change by reason of the change of the sessions, it should be by legislative enactment and not by judicial decision.

The motion to strike out the answer will therefore be denied.


author: Harry J. Goas, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    THEODORE KOELLHOFFER, PETITIONER, v. JERRY HURLEY, RESPONDENT.
    Alleged Intoxication — Respondent Claims the Petitioner Was Warned Not To Go On Scaffold — Petitioner Denies Such Warning — Admits Only Two Drinks — Intoxication Must Be Proved.
    For the petitioner, William N. Beclcer.

    For the respondent, Jerry Hurley, per se.

   >li ^ # ❖

Petitioner on the 4th day of September, 1922, while in the employ of the respondent, met with an accident arising out of and in the course of the employment. From the testimony of the petitioner, it appears that while the petitioner was reaching to measure a cement building block on the building being erected by the respondent on Connolly avenue, Jersey City, New Jersey,'and while the petitioner was in the act of stepping backward, he alleges that he slipped-on some hard substance, possibly a piece of building block, and fell to the ground for a distance of about twelve feet, sustaining permanent injuries consisting of a fracture of the neck of the femur of the left leg.

9. From the testimony of the respondent he stated that, on the morning that the accident occurred, he warned the petitioner that he should not go to work that day, for the reason that the petitioner was intoxicated and unsteady, and further stated that he attempted to. prevent the petitioner from climbing the ladder leading to the scaffold from whence he fell, but that the petitioner disregarded the respondent’s warning, proceeded to climb the ladder and fell from the scaffold erected on the premises used in the construction of the building.

10. The testimony of the petitioner was that, on the morning of September 4th, 1922, he arrived on the premises to- work, and that the only person on the job at said time was a laborer, and that the respondent was not on the premises at any time prior to the accident, and the injuries sustained by him, which is in contradiction to the testimony of the respondent, that he was on the premises and warned the petitioner not to preceed to work. This brings this fact to a question of veracity between the petitioner and respondent and to a direct issue. One or the other must be believed. There cannot be any compromise. The respondent was either there, or he was not there at all. The testimony was very limited.

11. There was some testimony introduced in behalf of the respondent by a Mr. Kasnef, a brother-in-law of the respondent, who stated that he warned the respondent not to allow the petitioner to proceed to work, due to the fact that he was intoxicated and unsteady, and that he was apt to injure himself. This testimony is hearsay, nothing having been spoken thereof in the presence of the petitioner, and, owing to the relationship of Mr. Kasner to the respondent, I do not think the testimony should be given much weight, also the testimony of a Mr. Gold,- an employe of the respondent, was introduhed in behalf of the respondent, who stated that he arrived on the premises after the petitioner had fallen from the scaffold, and sustained the injuries he is now suffering from, and he further stated that he was at that time informed that the petitioner was intoxicated, and, due to this condition, had fallen from the scaffold. Part of this testimony is irrelevant and immaterial, and the other part is hearsay testimony.

12. The petitioner is a large, heavy-built man, and admitted that he had taken, two drinks in Newark the morning of the accident^ before proceeding to Jersey City to work. It is common knowledge that many workmen engaged in manual work can take a drink or two and not suffer therefrom, and it is also common knowledge that two drinks for men of the petitioner’s type will not affect them. Intoxication must be proved, and that the intoxication of the petitioner was the direct and proximate cause of the injuries suffered by him. The petitioner was taken directly from the scene of the accident to the Jersey City Hospital, and if the petitioner had been intoxicated, his condition would have been noticed hv the physician in charge, upon his admission to the hospital. Such evidence was not introduced.

sjs sfc % ífc }£ ijc

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ANNA FISHER, PETITIONER, v. CRUCIBLE STEEL COMPANY OF AMERICA, RESPONDENT.
    Pneumonia — Alleged That Cause Was Fall Into a Vat of Weak Solution of Sulphuric Acid, Immediately Rescued and Sponged Off — Examined by Doctor and No Injury Found— Worked More Than Month Afterward, Before Disease Developed — Case Dismissed.
   $ ^ $

1. That on or about November 13th, 1923, the said decedent was employed by the respondent at its plant iii Jersey City as a carpenter at a weekly wage of $35; that while engaged in the duties of his employment he fell into a large vat containing a very weak solution of sulphuric acid; that he was removed from the said tank immediately, was sponged off by his fellow-employes, during which operation he sat in front of a large furnace located in the same room where the vat was situated and within a short distance therefrom; that the said room was at the time at normal temperature; that the said decedent was very thoroughly examined by the physician of the said respondent within half an hour of the occurrence; that he stated to the said physician that he was all right, and the said physician could not discover any ill-effects sustained by the said decedent from his said immersion; that thereafter, with the exception of Thanksgiving Day, November 29th, and Saturday, December 15tli, 1923, the said decedent worked continuously in the said respondent’s plant five days each week and half a day on Saturday from the date of the said’ accident until Friday, December 21st, 1923; that on the latter date he was found lying upon a bench back of a furnace, and, upon being interrogated, stated that he had a chill and felt dizzy; that he was thereafter removed to his home, where he remained for several days without the attendance of a physician, who, when finally called in, either on December 23 or 24th, 1925, diagnosed the ease as one of lobar pneumonia,' and that the said decedent died of iobar pneumonia on December 27th, 1923.

2. That the allegation in the petition, and upon which the said proceeding is founded, to the effect that the immersion occurred on December 12th, 192'3, is not sustained by the proof, and that the great weight of the evidence demonstrates that the immersion occurred on November 13th, 1923, and was neither the proximate nor the contributing cause of the said employe’s death.

It is thereupon, on this 28th day of September, 1925, ordered that the said petition be and it is hereby dismissed.

Charles E. Corbin, Deputy Commissioner.


author: Buchaííaíí, Y. C.

text:
    Lucy Backes Carey, petitioner, v. David Stewart Carey, defendant.
    [Decided December 8th, 1925.]
    Divorce—Counter Petitions For Divorce From Bed and Board on Ground of Constructive Desertion—Decree For Wife, With Custody of Children and Allowance For Support—Wife Now Petitions For Increased Allowance, Based on Increased Income and Because of Increased Expenses—Husband Petitions For Consignment of Children to a Home and the Removal of Trusteeship of Wife For Children—Held, That Burden of Proof of Increased Income Was Not Sustained— That the Trusteeship Cannot be Considered in This Proceeding, and That Wife’s Conduct, Though Reprehensible, Does Not Seem to Amount to a Sufficient Cause For Taking Children Away at Present, Though This May be Done Later.
    On cross-petition for increase of alimony and for modification of award of custody. On final hearing.

      Mr. W. Holt Apgar and Mr. William Hartshor.no, for the petitioner.

      Messrs. Stokes & McDermott and Mr. Merritt Lane, for the defendant.
   Buchaííaíí, Y. C.

The original cause comprised counter-petitions for divorce •from bed and board on the ground of constructive desertion. Decree was made April 28th, 1922, in favor of the wife, awarding her the custody of the three children (with rights of visitation and access to the father), together with an allowance of $200 per month for the support of herself and the children (girls, at that time seven, six and four years old). The wife and children reside in a house owned by the wife as trustee for the children.

The wife now petitions for an increase in the allowance, based chiefly on allegations of increased income to the husband, and extraordinary expenses on account of illnesses. The proofs by the husband on this point are by no means as satisfactory as they should be, but, after all, the burden is upon petitioner, and to my mind she has not only failed to establish increased income of the husband, but has also failed to establish necessity for increased allowance. The proofs are rather to the contrary, and the alleged extraordinary expenditures are in large part made up by the cost of her taking the three children to New York on occasions when visits were made there on account of the illness of only one of them or of the mother. I am unable to find that such a practice was necessitated or justified.

It may well be true that the mother found it difficult to enlist -the services of friends on such occasions, 'but for that she has only herself and her conduct to blame. It does not appear that proper paid assistance could not have been procured ; and it further appears that the wife has relatives in or near New York, jvho, presumably, might have been of assistance.

The fact that the wife’s petition in this behalf was first filed in October, 1923, and was not thereafter pressed for moré than a year, may also fairly be considered as tending to negative necessity for additional income.

The wife’s petition will be denied.

The husband’s cross-petition alleges that the wife is not a “suitable” person to have the custody of the children, or to be trustee of the children’s property, and prays that an order may be made placing the children in some institution, and appointing a substituted trustee for the property.

So far as the latter is concerned, it seems clear that no such order can be made in this cause. The trust is not a part of the subject-matter of this proceeding; the children-— necessary parties, as beneficiaries, to a cause involving the trust estate—are not parties to this cause. So far as I know the trust has not been established in this court, and to make any valid decree in regard thereto, it would seem that that could be done only in an independent proceeding commenced by bill and subpoena.

As to the prayer for award of custody of the children to an institution, I doubt that such an order can be made without a finding that neither parent is fit to have the custody of the children, although, doubtless, in a proper case, an order as to custody might be made conditional upon the custodian’s making specified arrangements, either as to school, or residence, or other factors, or arrangements in that behalf, which should be approved by this court.

However, I have, of course, considered the matter upon the broader ground of whether the custody of the children should be taken from the mother, and I confess that the problem has been a serious and perplexing one.

The home atmosphere and circumstances of these children is by no means what it could be, and ought to- be, what this wife ought to seek to establish and maintain as one of her most important responsibilities to these daughters. She has been, at least, exceedingly indiscreet and a violator of the properties in her conduct and relationship with the man who seems narrowly to have missed being named as a corespondent in the original proceedings. There is adequate ground for suspicion that her conduct may not have been merely indiscreet. Her attitude of hostility to her husband (whether justified at the present time or not), and her resentment at the dissatisfaction evinced by the community over her disregard of the proprieties and social conventions, has, apparently, hardened her and led her to conduct of which she might not otherwise have been guilty, by way of challenge to the community, and has led to her virtual ostracism.

On the other hand, the proofs to my mind fall sort of establishing the gross misconduct which the husband seeks (and not without justification) to spell out of them. It does appear that she has a real affection for the children and a careful concern for, at least, their material welfare. I am not quite satisfied that they should be removed from her custody, although, as I have said, I have had grave doubts.

She has it within her own power to eliminate those doubts by her future conduct. If she desires to keep the children she will see to it that her conduct in future is such as to afford no ground for criticism or suspicion. This she should have done in the past, of course, not merely from a selfish desire, but from a desire to provide her children with the best environment and a home life conducive to their best welfare.

If she fails to modify her conduct she will run the risk of losing the children, and, possibly, also maintenance for herself.

Both petitions will be dismissed, without costs, except that an allowance of one hundred dollars ($100) will be made by way of counsel fee to the wife, in view of the fact that the allowance was not made (because not asked for by her then solicitors) at the time of proceedings to enforce the maintenance payments.


author:
Harky J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    JOSEPH BERMAN, PETITIONER, v. MIKE LEVENSTEIN, RESPONDENT.
    Berger’s Disease—Petitioner’s Leg Amputated as Result of This Disease—Disease May Be Set in Motion by Extreme Heat or Cold, or by Injury—Petitioner Sustained Serious Injury Outside Course of His Employment—Held, That Cause of Revival of Disease Not Shown To Be Result of Employment.
   The petitioner herein having filed his petition in this cause on February 21st, 1925, and the respondent having duly filed his answer, and the said cause having come on for1 hearing at Paterson, New Jersey, under daU of May 21st, 1925, June 19th, 1925, June 29th, 1925, and September 3d, 1925, and the respective attorneys having been present on the said several dates and witnesses having testified on behalf of the petitioner and on behalf of the respondent, and it appearing that the petitioner, Joseph Berman, was employed by the respondent on September 7th, 1924, at the slaughter-house of the respondent at Totowa borough, New Jersey, and it further appearing that the petitioner has had his right leg amputated above the knee, and that, prior to such amputation, the petitioner suffered from Berger’s disease, and that this disease could be set in motion by extreme beat or cold or by an injury and various other causes, and it appearing that the Berger’s disease resulted in a condition that made the amputation of the leg necessary, and it further appearing that the petitioner was compelled to stop work on October '31st, 1924, on which said date the petitioner suffered an injury to his right leg while passing the premises No. 77 Eidge street, Paterson, New Jersey, when he was not engaged in the course of his employment, and such injury did not arise out of his employment, and that this accident was of sufficient severity that the petitioner reported the same to the nearest police station, and that this accident of October 31st, 1924, was of such severity that it could set in motion the Berger’s disease, from which the petitioner was suffering at the time of the said accident.

And it further appearing that the petitioner in this cause has failed to establish by a perponderance of the evidence that the alleged injury claimed by him grew out of the accident arising out of and in the course of his employment, and it satisfactorily appearing that no notice was given by the petitioner of the alleged accident, and it'satisfactorily appearing that the said alleged accident did not occur.

* $ $ $ $ $ $

Harky J. Goas,

Deputy Commissioner.


author: Pee Ctjkiam.

text:
    THE STATE, PAUL A. KLINGES, PROSECUTOR, v. THE COURT OF COMMON PLEAS, RESPONDENT.
    Decided October 21, 1925.
    Motor Vehicles—Drunken Drivers—Certiorari Alleging Convic- - tion to be Unfair, Improper, Unjust, Against Weight of Evidence, and Act Under Which Conviction Had Was Unconstitutional—Evidence Examined and Alleged Reasons Not Sustained—Constitutionality of Act Already Sustained.
    On certiorari.

    Before Justices Kalisoh, Black and Campbell.
    .For the prosecutor, Maja Leon Berry.

    For the respondent, Edward L. Eatzenbach, attorney-general.
   Pee Ctjkiam.

The prosecutor was convicted before a justice of the peace in the county of Ocean on a complaint charging him with operating “a motor vehicle on the public highway while under the influence of intoxicating liquor, and narcotic and habit-producing drug,” &c., and, upon said conviction, was sentenced to the county jail for thirty days. Prom this judgment the prosecutor appealed to the Common Pleas Court of Ocean county, which tribunal, after a hearing, found him guilty, and sentenced him to thirty days’ imprisonment in the county jail.

The case is brought here for review, on certiorari, and the reasons presented for a reversal of the judgment are:

1. Because the conviction is unfair, improper and unjust.

2. Because said conviction was made without regard and contrary to the weight of evidence.

3. Because said conviction was had under subdivision 3, section 14, chapter 208, public laws of 1921, and said section is unconstitutional because it is contrary to the provisions contained in article 4,. section 7, paragraph 4 of the constitution of- the State of New Jersey, and, in other respects, said act is unconstitutional for various reasons.

Under these reasons it is argued, first, that the testimony was insufficient upon which to convict, and secondly, that subdivision 3, section 14, chapter 208 of the public laws of 1921, as amended, and supplemented, is unconstitutional. Neither of these contentions appears to us to be sound. There was proof that the prosecutor was intoxicated while operating the automobile upon the public highway, and the proof was sufficient in that respect to authorize a conviction under the statute upon that ground.

As to the contention that chapter 208 of the public laws of 1921, as amended, is unconstitutional, because it provides for a punishment of an imprisonment of not less than thirty days and not more than six months in the common jail of the county wherein the offense was committed, without the intervention of a jury trial, is without force, since it was not so decided in Katz v. Eldredge, 97 N. J. L. 157, as is claimed, as pointed out in 98 N. J. L. 125.

Judgment is affirmed, with costs.


author:
Haeut J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    ISADORE DOCTOR, PETITIONER, v. ROYAL SILK MILLS, RESPONDENT.
    Injury On Head Resulting From Being Struck By a Shuttle of a Silk-weaving Loom—Petitioner Continued Working For the Day, But Suffered From Head Aching—Serious Affection of Eyes Developed—Testimony Examined and Injury Held to Have Resulted During Employment.
   The proof given in this case by the petitioner was that he worked as a broad silk weaver for sixteen years; that he had obtained employment from the respondent as a silk weaver and operated three looms; that on December 24th, 1924, a shuttle struck him on his head and that he did not know which loom it came from; that this accident occurred between nine and ten o’clock in the morning, and afterwards he continued to work with difficulty, and that night of the accident, because of severe headache, he went to Dr. Joelson. Petitioner testified that he continued to work on December 26th, hut his eyes began to blink, and he continued to work because of his eye difficulties for a period of five days; that he was sent to the Neurological Institute, New York, by Dr. Joelson, where he went seven times and was given electrical treatments; that he informed Dr. Behrman, one of the officers in the mill, of the accident, and continued to work with the expectation that the condition wonld pass away, and worked until January 12th, 1925. Petitioner further testified that while he was working he spoiled goods he was working on, and complaints were made against him by Mr. Berman for poor workmanship; that he called on Dr. Wassing, a neurologist, and that his condition is somewhat improved, but that he cannot work. Petitioner further testified that he has lost sixteen pounds and that he feels sick; that he attends the rehabilitation clinic daily. Petitioner also testified that Abraham Yelline, who worked an adjoining loom, was near his loom when the accident happened; that Mr. Yellin picked the shuttle up, although petitioner did not remember whether it was the shuttle from his loom or from Mr. Yellin’s loom. Petitioner testified that he has to lift his lids in order to see, and that he must wear colored glasses. Petitioner further testified that the loom guards came up to the nipple line, and petitioner testified that shuttles can fly 'over these guards.

Abraham Yellin testified that he worked as a weaver in the premises of the respondent, and had adjoining looms to petitioner; that he remembered picking up a shuttle from the floor; that he asked the petitioner whether it had hit him, and he said that it did.

Petitioner’s wife, Rose Doctor, testified that her husband was never sick before, or had any trouble with his eyes before the accident.

Mr. Behrman testified that he was secretary and treasurer of the respondent company, and that petitioner told him of the accident. Under cross-examination he testified that loom guards are over four feet from the floor, and that there is a distance of three to four inches between the columns and guards, and that there is an opportunity for the shuttle to pass between the post and guard or screen.

Petitioner called Dr. Hans Wassing, who is a neurologist, who says he examined petitioner, and ,that petitioner gave him a history of being healthy up to the time of being struck in the forehead by the shuttle, and he diagnosed the case as traumatic neurosis or ptosis, or a falling down of the upper eyelids with impossibility to raise them, and that it is a progressive condition, is uncertain, and that the petitioner requires treatment; that petitioner’s condition was due, in his opinion, to the striking of the shuttle. In addition to the eye condition, petitioner is suffering from trumatie neurosis. Every bilateral ptosis the witness saw was traumatic in origin. The condition of the lower eyes (circular muscles) is a cramped one. That petitioner is suffering in both eyes from both ptosis and cramped condition of the lower eyelids; that condition is duo to shock and not to organic lesion. On second examination, witness testified, that petitioner was getting worse, and there was a marked neurasthenia; the eyes themselves are normal, except for a small amount of myopia, and that, in his opinion, petitioner was one hundred per cent, disabled to work, when he saw him in March, 1925.

Petitioner called Dr. Morris Samuel Joelson, who testified that he examined petitioner, who gave him a history of being struck in the head with a shuttle, and that he observed a red swelling above the nose, and that he had blinking of the eyelide, and then ptosis developed; that he treated him for three weeks and sent him to New York for neurological treatment.

The respondent called Charles Meyers, safety engineer for the Globe Indemnity Company, who testified to a sketch made of the premises of respondent and by the looms of the petitioner, which sketch was offered in evidence. He could not testify at all as to the tactics of shuttles, and knew nothing about action of looms or auxiliary machines and appliances.

The respondent called Dr. Elbert S. Sherman, who testified that petitioner was led into his office at Newark on May 3 9th, who gave him a history of the case, and also testified that it was nothing abnormal, except a contraction of the eyelids; that he could not get any idea of amount of vision on his eye-balls, as he rolled his lids up very much. Dr. Sherman admitted that a bilateral ptosis might be caused by a trauma.

Dr. Thomas Clay testified that petitioner came to. the clinic; that he had been given a message by Dr. Joelson to have treatment at the rehabilitation clinic; that the first intimation he had of the accident was on February 17th, after petitioner had been treated at the clinic a number of times; that it was a case for a competent neurologist to pass on; that the petitioner had hysteria or traumatic neurasthenia, and that a bilateral ptosis may result from trauma, and usually is, and that improvement might be brought about by auto suggestion.

Sarah Lennon, called by the respondent, testified that petitioner did not call, her attention to the accident.

7. From the evidence produced I am satisfied- that the petitioner -sustained an accident arising out of and in the course of his emplojunent, and find, .therefore, that the petitioner is entitled to compensation for a period beginning January 12th, 1925, until June 4th, 1925, for temporary disability, and I further find that the petitioner be allowed temporary disability for a period of one year beginning June 4th, 1925, until June 4th, 1926. If the improved condition of the petitioner does not warrant the continuance of temporary compensation payments as above indicated, the respondent shall have leave, upon notice to the petitioner, to bring on the matter for rehearing, otherwise ,the petitioner shall be entitled to have the final extent of temporary and permanent disability determined.

*******

Haeut J. Goas,

Deputy Commissioner.


author:
Charles E. Corbin,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    FRANCIS JOSEPH BIELSKI, PETITIONER, v. GEORGE, C. NORTHRUP, TRADING AS THE NORTHRUP PRESS, RESPONDENT.
    Injury to Minor Working Against the Labor Laws—Early Decisions and Amendment of 1924 Quoted—Jurisdiction As- ' sumed.
    For the petitioner, Connelly é Hueston.

    For the respondent, Ealisch & Ealisch.

   Q ****** *

This case was submitted on an agreed statement of facts from which it appears, without dispute, that the petitioner was illegally employed by the respondent in that, while only fifteen years of age, he was put to work operating a machine known as a printing press, and in his endeavor to remove an envelope from the machine he was operating he was injured.

There is no question that, prior'to chapter 159 of the laws of 1924, page 359, such an accident was not compensative under the Workmen’s Compensation act. Hetzel v. Wasson Piston Ring Co., 89 N. J. L. 201 (at p. 203); Boyle v. Van Splinter, 3 N. J. Adv. R. 278 (Court of Errors and Appeals).

The first case cited is the leading case on the subject, and states the reason why the Compensation act did not apply to illegal employment of a minor. Chief Justice Gummere in that case, at page 203, said:

“It can hardly be doubted that the legislature, in providing for the engrafting of these statutory provisions on contracts of hiring, had in mind contracts which were valid in law, or, at least, contracts the making of which was not prohibited by express legislative enactment, for it would be entirely unreasonable to attribute to the legislature the intention of adding terms to a contract of hiring which it had already prohibited the parties thereto from making.”

In short, the Compensation act was silent as to whether it applied to illegal employment of minors or not, and our court of last resort properly held that it was presumed that the intention of the legislature was that it only applied to contracts which were valid in law.

The amendment of the Workmen’s Compensation law of 1924, referred to supra, however, specifically provides for the manner in which minors illegally employed shall be compensated for injuries received while doing that kind of work, namely (Pamph. L. 1924, p. 360, f 9) :

“In the employment of minors, section 2 shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor. If the injured employe at the time of the accident is a minor under fourteen years of age, employed in violation of the Labor law, or a minor between fourteen and sixteen years of age, employed, permitted or suffered to work without an age and schooling certificate, or age and working certificate, or at an occupation prohibited at that age by the Labor law, a compensation or death benefit shall be payable to the employe or his dependents which shall be double the amount payable under the schedules provided in paragraphs .11 and 12.”"

By the foregoing statute the legislature has expressly stated its present intention that minors shall be compensated in certain manner if they are put to work illegally by their employers, and, of course, that compensation must be paid to them in the manner and by the tribunal which bears and determines claims for compensation under that statute.

I, therefore, hold that I have jurisdiction, and that the Compensation act, as amended by chapter 159 of the laws of 1924, now covers, as therein provided, the claims of minors who are illegally employed.

The questions hereinbefore decided are the only questions raised in the briefs of counsel for the respective parties. The question of the- constitutionality of the amendment of 1924 has not been raised. Even if it were raised, I would hold the amendment constitutional, first, because the constitutionality of that statute should not be adjudged adversely by an inferior tribunal, and secondly, the authorities seem to be unanimous that the statute is constitutional. Sexton v. Newark District Telegraph Co., 84 N. J. L. 85; affirmed, 86 Id. 701; see, also, Middleton v. Texas Power and Light Co., 249. U. S. 152, 160; Hawkins v. Bleakley, 243 Id. 210, 212.

Charles E. Corbin,

Deputy Commissioner.


author:
Habey J. G-oas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    VALENTINE MORRELL, PETITIONER, v. WARD BAKING COMPANY, RESPONDENT.
    Hernia—Evidence Examined and the Statutory Conditions Found to be Present—“Prostration” Defined.
    On determination and rule for judgment.
    For the petitioner, Frank W. Long.

    For the respondent, Frank 0. Turner.

   The above matter came on for a formal hearing before me, in Newark, on October 30th, 1925, after numerous adjournments, the petitioner being represented by Counselor Frank W. Long, and the respondent by Counselor Frank G. Turner, who did not appear. Mr. Morrell testified on his own behalf, and Mr. Overman and Dr. Steffanelli also testified on behalf of the petitioner. I cross-examined all the witnesses and the petitioner.

The petitioner testified that on June 1st, 1925, about eleven forty-five p. M., at the plant of the respondent in Ampere, while in the course of his employment, he was pulling a truck of bread pans weighing about one thousand five hundred pounds across the floor, when he suddenly felt a sharp and severe pain in his left groin. He said he started to perspire, felt weak in the knees, was dazed and was breathing very fast. He immediately dropped the hook with which he had been pulling this truck and staggered over to the automatic bread-moulding machine about three feet away and rested there for a few minutes by sitting on this machine. He said he walked or staggered over to Overman’s machine, a fellow-employe, about ten feet away, and told him what had happened. He testified that he then went down to the locker room on the next lower floor and lay on the table at full length for about an hour. He ceased work immediately after the accident. While lying on the table, he testified that he took his trousers down and several fellow-employes examined him and said there was a lump over, his left groin. He said that after lying on the table he walked to his home, which was only two short blocks from the plant, with a friend. The next day, June 2d, he called in Dr. Steifanelli, who examined him about two p. m., and told him he had a rupture. He also testified that he notified Ereddy Fellows, his immediate superior in the respondent’s plant, on June 2d, and that on Friday of the same week be bought a truss on the advice of Dr. Steifanelli and wore it for about two months. When asked if he had had an operation, he said that one was advised as the only cure, but that he did not want one now.

James Overman, a fellow-employe, testified on behalf of the petitioner and corroborated the petitioner’s testimony as to his condition immediately after the accident, and that he felt the lump while petitioner was lying on the table.

Dr. Steifanelli testified that he examined the petitioner on June 2d, 1925, and found he had a hernia in the left groin, caused by the accident of June 1st, and that there had been a descent. He further testified that he had examined the petitioner several times previous to the accident and had' never found any trace of rupture.

From all the testimony, I find that the five requirements of the Workmen’s Compensation act, named as conditions precedent for the allowance of compensation for hernia, have been fulfilled in this case, and that petitioner refuses an operation. The medical expenses, as testified by the petitioner, were $15 for physician’s services and $5.50 for the truss, and that his salary was $35 per week. The respondent has made no payments, either for medical treatment or compensation. In iny opinion, the section of the hernia clause, which provides “that there was such prostration that the employe was compelled to cease work immediately,” means that the employe was incapacitated to the extent that he had to stop at once. Not that he was necessarily prostrated—lying inert on the floor—but the fact that the word prostration is modified by “such,” shows that the entire clause must b.e read as a whole with the resultant interpretation that the man does not have to be lying prone, but that there is such a depression of the bodily functions, or the vital energies, that the person was compelled to cease work immediately. Such was the case here, and I find the third requirement fully covered.

Accordingly, it is hereby determined and ordered that judgment be entered for the petitioner, in the amount of twenty weeks, at the rate of $17 per week, as compensation, $22.50 for medical expenses and $10 costs. I also find that counsel for petitioner is entitled to an attorney fee of $50.

Habey J. G-oas,

Deputy Commissioner.


text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    MARY FELSBURG, PETITIONER, v. BULDERS’ SPECIALTY COMPANY, RESPONDENT.
    Strangulated Hernia—Death Resulted From Toxemia Caused by the Hernia—Facts Considered and Statutory Conditions Found Existing.
    On determination of facts, opinion and rule for judgment.
    SUMMABY OF FACTS.
    The testimony in this case shows that the petitioner’s deceased husband was in the employ of the respondent on February. 4th, 1925, at a wage of sixty-six dollars ($66) per week, and that previous to the occurrence which brought about his death had been in normal health and had worked regularly. On February 4th, 1925, he undertook to illustrate how concrete tamping should be done, and .appears to have exerted himself in this demonstration. He was immediately stricken with severe pain and had to be removed at once. The following day, about midnight, he was operated-upon by Dr. E. S. West at St. Francis Hospital, and the doctor testified that he found a strangulated hernia. The doctor further testified that the man’s death was due to toxemia caused by the strangulated hernia. This hernia was at the location where this man had been operated upon for appendicitis in 1892 or 1893. According to the testimony of Dr. West and Dr. Costill, this hernia seems to have developed in the manner in which the ordinary hernia is normally acquired.
   OPINION.

In view of the facts which developed at the trial of this claim, I am of the opinion that, in the absence of any puncturing or tearing of the abdominal wall, this ease is to be classified under the second division of paragraph 11 (x) of Compensation statute controlling hernia cases. Where there is no actual tearing of the abdominal wall, compensation can be granted-only when the case involves the five distinct elements set forth in the second portion of the above-named clause. These elements are:—

First, the descent of the hernia shall immediately follow the cause.

Second, there must be severe pain in the hernial region.

Third, there must be such prostration as to compel the employe to cease work immediately.

Fourth, these facts must be conveyed to the employer within twenty-four hours.

Fifth, the physical distress must be such as to require the attendance of a physician within twenty-four hours.

Apparently, this case involved all of the five elements just enumerated, consequently it comes within that class of hernia for which compensation is to be granted. I am therefore of the opinion that an award must necessarily be made in favor of the petitioner, the widow of and the only dependent of the decedent, Charles S. Eelsburg.

# * * * * t\i * * *

W. E. Stubbs,

Deputy Commissioner of Compensation.


text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    JOHN NELLING, PETITIONER v. D. C. SATTERFIELD, RESPONDENT.
    Callous Resulting From Constant Use of Tools—Abscess—Infection—Amputation Not the Result of Injury.
    On determination of facts and rule for judgment.
   The facts agreed upon were that the claimant in course of his trade as a carpenter’s helper, and from the constant use of tools in the performance thereof, the said claimant’s right hand at the base of little finger became calloused, resulting in an abscess which became infected, and, as a result of the infection, the little finger of the right hand was amputated at the web of the hand, therefore, I, Charles E. Corbin, deputy commissioner of the State of New Jersey, after hearing the evidence on the stipulation as agreed by counsel, decide that the relation between the claimant’s disability resulting in the removal of the little finger was not established to have resulted from an injury, that it occurred from the constant use of tools, and I, therefore, decide that the disability arose out of an occupational disability. I am therefore obliged to and do hereby dismiss the claimant’s petition, and render judgment in favor of the respondent.

Charles E. Corbin,

Deputy Commissioner of Compensation.


author:
Hakky J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    ANTONIO MACALUSO, PETITIONER, v. CARMINE DI SALVA, RESPONDENT.
    Hernia—Evidence Showed It to be of Slow Growth and Not the Result of the Accident Alleged.
    On determination and' rule for judgment.
    Eor the petitioner, J. Gordan Gant.

    Eor the respondent, Charles W. Weeks.

   This matter coming on to be heard on petition, answer and proofs taken in open court, in the presence of J. Gordon Gant, Esq., attorney for petitioner, and Charles W. Weeks, Esq., attorney for respondent, and the court having heard the testimony offered in behalf of - the partjes and the argument of respective counsel, finds and determines as follows:

I find from the evidence that the petitioner, on the 18th day of May, 1925, was employed by the respondent as a baker. While the petitioner testified that during the course of his employment a bag of flour fell upon him, he is the only one who testifies to this, and from his cross-examination I am not'convinced that the accident happened in the way and manner in which he detailed. I am not, however, obliged to determine the matter on this phase of the case, because, assuming that there was an accident, the petitioner has failed to bring the case within the provision of the act dealing with hernia. There is no proof of any rupture or tearing of the abdominal wall, and it appears affirmatively from the hospital records introduced upon the petitioner’s case that when he was admitted to that institution the day following the happening of this accident he had been suffering with the left inguinal hernia for twelve years, and that it grew to such a size as to become strangulated on the night of May 18th, 1925. It also appeared that the sac contained the intestine but no omentum, and that there was an absence at that time of any evidence of cyanosis, aedema, pallor or eruptions, and I think the only reasonable conclusion that can be drawn from this testimony is that the heria complained of in the petition is one of . slow growth and not caused by the alleged accident, and, therefore, not compensable under our statute.

It is therefore, on this 14th day of November, 1925, ordered, adjudged and decreed that the petition filed in the above-entitled case be and the same is hereby dismissed.

Hakky J. Goas,

Deputy Commissioner.


author:
Harry. J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    KATHERINE WALSH, PETITIONER, v. FORD MOTOR COMPANY, RESPONDENT.
    Alleged Septicomia Resulting in Death—Employer Had No Knowledge of Accident—Only Evidence Was Statement of Relative to Whom It is Alleged Employe Told of the Injury to finger —Declarations Not Res Gestae—Petitioner Failed to Show That Injury, if There Was One, Caused the Death.
    On petition for compensation. On order dismissing petition.
    Por the respondent, George Anderson.

    F nr the petitioner, Michael F. Judge.

   *********

The petition filed in the cause alleged that on January 12th, 1925, Prank Walsh was employed as a glass cutter by the respondent; that on that date, while cutting windshields, he cut the middle finger of his left hand; that he continued working until January 15th, when he was compelled to cease work and gó home, and that he died on January 22d of septicomia. The petition alleged that the decedent left him surviving as dependents a widow and two minor children. The answer alleged that the respondent had no knowledge of the accident, and that it had no knowledge or record of any injury to the' decedent.

The case came on for hearing before me at Newark, on June 11th, 1925, in the presence of Michael P. Judge, Esq., attorney for the petitioner, and George Anderson, Esq., attorney for respondent, on which day both parties produced witnesses who were examined in the presence of said counsel.

It is fundamental that the burden is on the petitioner to prove by competent, legal evidence, that (1) decedent sustained an injury by accident; (2) arising out of and' (3) in the course of his employment, and (4) that decedent's death was caused by the accident. There was no witness who actually saw the alleged accident. Petitioner endeavored to prove the accident and the resulting injury by the declarations made by the decedent to the petitioner and his father-in-law upon his arrival at home" in the evening of January 12th. The testimony of the petitioner and father-in-law was, in substance, that decedent immediately after his arrival at home said that he had cut the middle finger of his left hand while at work. This testimony was admitted over the objection of counsel for the respondent. There was no other testimony adduced in support of. the allegation that decedent sustained an injury by accident arising out of or in the course of his employment.

Counsel for petitioner urged that the testimony of decedent’s declarations should be admitted as a part of the res gestee. This contention is untenable. The declarations were not made at or immediately after the time he sustained his injury. They were not made at or near the scene of the accident, but, on the contrary, were made after his arrival at home and at a considerable period of time after the accident is alleged to have occurred. They were merely a narrative .of a past event. There can be no doubt that the declarations were not part of the res gestee, and they were therefore hearsay. Blackman v. West Jersey and Seashore Railroad Co., 68 N. J. L. 1; 3 Wigm. Ev. (2d ed), §§ 1747, 1750.

It is well established that hearsay'testimony alone is insufficient to support an award. Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; 113 N. E. Rep. 507; Valentine v. Weaver, 228 S. W. Rep. 1036; Indiana Bell Telephone Co. v. Hauf, 144 N. E. Rep. 844; Scalise v. Uvalde Asphalt Paving Co., 98 N. J. L. 696. As pointed out above the only proof offered of the accident was the declarations of decedent. Inasmuch as these declarations were hearsay, I hold that there was no legal proof that decedent sustained an accident arising out of and in the course of his employment.

Petitioner, moreover, failed to sustain the burden of showing that the injury (assuming that there was one) caused decedent’s death. Dr. O’Neill, who treated decedent, was called by the petitioner and testified that he examined the middle finger of decedent’s left hand on the fourth day following the accident and saw no sign whatsover of any injury thereon. The undisputed testimony was that if there had been a cut on the finger, as alleged, there would have been some evidence of the same four clays thereafter. Dr. Gray, a blood specialist called by petitioner, testified that he made a blood test from which he found that decedent’s blood stream was infected, due to the presence of staphyloccus bacteria, and that these generally obtain admission to the blood stream through an abrasion in the skin. These were the only doctors called by petitioner, and neither of them was asked to give his opinion as to whether decedent’s death resulted from the injury of January 12th. 'In view of the undisputed testimony that there would have been some indication of a cut on the middle finger of the left hand four days later, and in the absence of opinion by petitioner’s doctors that the death was a result of the injury on January 12th, I am constrained to hold that petitioner failed to prove that decedent’s death resulted from the alleged accident.

Por the reasons given above, I hold that petitioner has failed to prove that decedent sustained an accident arising out of and in the course of his employment, and that, if there was an accident, there was no proof that the same was the cause of decedent’s death. '

* * * * * $ ^ * %

Harry. J. Goas,

Deputy Commissioner.


author:
Harry J. Goas,
      .Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    NICK RUMP, PETITIONER, v. KNICKERBOCKER COAL AND ICE COMPANY, RESPONDENT.
    Injury Resulting From Load of Frozen Coal Falling on Petitioner —Only Question a Medical One—In Hospital Three Weeks-Unable to Work Afterward—Evidence Examined and Award Made,
    On determination and finding of facts.
    Eor the petitioner, William H. Smilh.

    Eor the respondent Edward Davis.

   It was admitted by counsel that the petitioner, Nick Bnmp, was injured in an accident arising out of and in the course of his employment, on January 31st, 1935, with the respondent, Knickerbocker Coal and Ice Co., and the only question involved was the medical question.

The petitioner said ihat he was injured on the day aforementioned, and that he was confined in the St. Barnabas Hospital for a period of three weeks; that he was discharged from the said hospital on February 33d, 1935; that he was examined by Dr. Edgar S. Holden on March 31st, 1935.

Dr. Holden’s testimony was to the effect that at the time of the examination he found some crepitation aeromac of the clavicular joint, abduction of the arm to one hundred and fifty degrees, slight restriction of the anterior motion, slight limitation of rotation, tenderness below right clavide from stermun to shoulder joint, over three upper ribs, some pain in neck, muscle spasm in muscles left side of neck, left lateral motion of neck restricted and moderate restriction to right, and Dr. Holden further testified that there was a ten (10%) total permanent disability.

The petitioner testified that he has severe pains about his shoulder and chest and back and the muscles in the back of the neck at the present time; complains of sleeplessness and dizziness.

Dr. Markens was then called by petitioner, and he testified that he examined the petitioner just before the trial, and after making the examination of him found limitations of motions about the clavicular joint, limitations of arm, slight tenderness between .the right clavicle, pains in the muscles of the neck and limitations of the lateral motion, and said that, in his opinion, there was a ten per cent. (10%) total permanent disability.

Both the wife of petitioner and the petitioner testified that he was employed within the last six months by the Public Service, and endeavored to do a day’s Work, but come home sick, and complained of the pains mentioned heretofore.

The respondents produced Dr. Edgar S. Ill, who said that he treated him at St. Michael’s, and that he was there a week, and that he was in severe pains, and that he spit blood for a week. They discharged him from hospital on Pebruary 23d, and further said that at the time of this discharge he did not say that the man was cured, but he said that the practice was to discharge people when they were able to get about, or words to that effect, and that he made no estimate of any disability, as he did not make estimates of disability.

Dr. Tansey was next called by the respondent, and he testified that during the time at the hospital he saw him, and even after his discharge from the hospital he treated him, and that was between Pebruary 24th, 1925, and about ten days later. He said that there was limited motion in the right arm, pains in right chest and upper areas of lungs, and further testified that, after he was treating him ten days after Pebruary 24th, he said that he would be able to get to work in about a week, but during that week he did not examine him, and did not examine him until some time in July, when he said that he was in good condition, and that he apparently had recovered. He farther said that he believed that the petitioner could do more than he wanted us to believe.

In view of all the facts in the case, there is no question in my mind, when I consider the nature of the accident, a great weight of frozen coal weighing about a ton or two falling upon the right side of the petitioner. The fact that he was in the hospital for three weeks; the fact that he was treated for another period of two or three weeks. Dr. Holden’s testimony, Dr. Holden being the doctor employed by the state rehabilitation commission, and Dr. Ho.lden stated that there is a ten per cent, total permanent disability.

There is no testimony on the part of the respondent showing what the actual condition is at the day of the trial. This was brought out by the petitioner, who showed through Dr. Markens that at the time of the trial the petitioner was ten per cent, total permanently disabled.

In view of all the facts and circumstances in the case, I find that the petitioner is entitled to the amount already received by him, sixty-eight ($68) dollars, for temporary disability, and seven per cent. (7%) total permanent disability, amounting to thirty-five (35) weeks at the rate of seventeen ($17) dollars per week.

He H* He He He H* H* ' H* H*

Harry J. Goas,

.Deputy Commissioner.


author:
Habby J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    ANGELO CARESINO, PETITIONER, v. LINCOLN SANITARY LAUNDRY, RESPONDENT.
    Sprained Back—Question of Extent and Duration of Injury— Question of. Proper Notice, Also of Employment at Time of Injury if One Occurred—Case Dismissed.
    On determination and dismissal.
    For the petitioner, James A. Hamill.

    For the respondent, Richard W. Balter.

   A petition having been filed in the above matter asking for compensation under the terms of the Compensation law of this state and an answer having been duly filed, the same came on for a hearing before me, in Newark, on October 16th, the petitioner being represented by Attorney James A. Hamill and the respondent by Attorney Richard W. Baker.

The petitioner testified on his own behalf and also called Dr. Giuliana and Mr. Ventola. On behalf of the respondent, *Mr. Dana, Mr. Schwarz and Dr. Griffith testified.

Dr. Giuliana testified that he had treated the petitioner for a sprained back from December 20th, 1924, until June, 1925, although unbeknown to him the petitioner had continued working up until May 23d, 1925, laying off for two weeks around the time of the alleged accident. Dr. Giuliana stated that the petitioner was qualified to do his regular work when he last treated him in June, but that he advised him not to engage in occupation that would likely to cause a recurrence of the strain. Dr. Griffith, on the other hand, testified that when he examined the petitioner about ten days before the hearing he could find no objective symptoms of any disability whatsoever, and that there was complete mobility of the spine in all directions.

The petitioner alleged that he received a strain arising ont of and in the course of fiis employment on December 20th, 1924, and states that he reported the matter to Mr. Dana at once. Mr. Dana, however, on the stand denied that the petitioner had ever reported the accident, but merely said that the petitioner had complained, from time to time, of being sick and having some kind of rheumatism in the back, and that he did not know of any alleged accident until the time of the ‘formal hearing, considerably more than ninety days after the alleged accident. Mr. Dana further showed that the petitioner had not worked between the dates of December 11th, 1924, and January 6th? 1925, so that the petitioner was not working on the date of the alleged accident. Furthermore, the petitioner, himself, admitted that he only worked Monday, Tuesday and Wednesday of each week, and it was shown that the date of the alleged accident fell on a Saturday, when he admitted he did not work.

After considering all the evidence in the case, I find that the petitioner has not sustained the burden of proving that he sustained an accident arising out of and in the course of his employment, and has likewise failed to show that he notified his employer of the accident within ninety days. For that reason I find that the case should be dismissed, and I further find that, although the petitioner alleges that he received an accident on a certain date, he was not working for the respondent on that date.

Accordingly, I hereby order that the case be dismissed, without costs to either party.

Habby J. Goas,

Deputy Commissioner.


author:
Harry J. Coas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN DONATO, PETITIONER, v. PORT READING CREOSOTING PLANT, RESPONDENT.
    On determination and rule for judgment.
    For the petitioner, Salvatore F. LaCorte.

    For the respondent, F. W. Fleck, assistant general claim agent of the Reading Company.
   The deputy commissioner was asked to approve this compromise and to enter an award on the same.

I, therefore, find and determine that the petitioner, in accordance with the compromise, is entitled to compensation for temporary disability for a period of eight (8) weeks, and compensation for permanent disability for a period of one week and a half based upon five per cent, of disability of -the foot, the compensation rate being fourteen dollars and eighty-five cents ($14.85) per week.

Harry J. Coas,

Deputy Commissioner.


author: Porter, Judge.

text:
    Essex County Court of Common Pleas.
    William Roney, petitioner-respondent, v. Griffith Piano Company, respondent-appellant.
    [Filed December 30th, 1925.]
    Workmen’s Compensation—Proper Notice of Injury—Immediate Superior Had Due Notice, Impossible That Head Did Not Know of Injury—Accident Resulted in Cancer, Causing Death—Compensation For Temporary Injury to Time Injury Was Diagnosed as Cancer, and From Then For Permanent Injury to Time of Death, Awarded—In Event of the Death, Compensation is Payable to Personal Representative— Whether Widow, Not Having Filed Claim as Defendant, is Barred by Statute is Not Before the Court in this Proceeding, Not being a Party Thereto.
    On appeal.

      Mr. Clarence B. Tippelt, for the respondent-appellant.

      Mr. Charles Becker, for the petitioner-respondent.
   Porter, Judge.

This matter comes before the court on an appeal from the determination of the' workmen’s compensation bureau. Deputy Commissioner Goas, who heard the case, held that William Roney, the petitioner-respondent, was employed by the Griffith Piano Company, respondent-appellant,, on December 29th, 1923, as a piano mover, and that he was injured on that date in an accident occurring in the course of and also out of the said employment and awarded him compensation.

It is urged on behalf of the respondent-appellant that the determination and judgment of the bureau should be set aside because no notice was given by petitioner-respondent of his injury within ninety days as required by the statute.

The testimony of Roney was that he did report his injury to Mr. Peckham, shipping clerk of respondent-appellant, on the day of the accident. Mr. Peckham testifies that he remembers no such report; he further testified that he had received a report of the accident, and that he questioned all of the men involved in it as to just what had happened, but that none of them said anything to him about anyone having been injured. I find ho basis in the testimony for the statement contained in paragraph 7 of the determination that Mr. Peckham, on re-examination, was not sure whether or not he knew that Roney was injured. But irrespective of whether Roney did or did not report his injury at that time to Mr. Peckham, there is no doubt from the testimony that his immediate superior, Mr. Penn, knew of it and received a verbal report of it from Roney immediately.

Penn was in charge of the work; he was a witness to the accident; saw Roney knocked down when the piano fell; saw him hold his neck and heard him complain of his neck having been hurt. This notice to Penn, whether or not he reported it to Mr. Peckham, was, it seems to me, a compliance with section 15 of the statute. Moreover, Roney two week* later complained to Penn of the injury to his neck, and Penn testified to the swelling which followed and to the medical treatment Roney was receiving. So, it is clear that Roney, not only reported his injuries to Penn at the time he received them, but that he kept Penn informed of his condition constantly within the ninety days following. Roney continued to work for the respondent-appellant with Penn for five or six weeks after the accident. As Penn testified, “he worked right on for six weeks after that. Five or six weeks before he commenced being really bad oif.” Penn knew of the medical treatment the petitioner-respondent was undergoing, and must have appreciated the fact that there was a more or less serious injury. Doubtless other employes had the same knowledge. It seems unlikely, under these circumstances, that Mr. Peckham, or others in authority, gained no knowledge of the injuries until after ninety days of the accident.

It is further urged that the proofs do not establish that the physical disability of Roney is the result of any injuries sustained by him in the accident referred to.

I think the testimony fully establishes the facts as to that phase of the case as so ably set forth in the determination of Deputy Commissioner Goas.

The petitioner’s injuries resulted in a cancer from which he subsequently died.

The testimony shows that the diagnosis of cancer was made on May 19th, 1924.

The determination should, therefore, be for temporary compensation until May 19th, 1924, and for permanent compensation thereform until the date of death.

It seems that no compensation has been paid in this case, and it is urged by respondent-appellant that, as the petitioner has died, there is now no person to whom any compensation is properly payable.

The authorities cited in support of this view do not sustain that contention. On the contrary, the law is settled that the personal representative of the deceased is entitled to the compensation which had accrued up to the date of death of the petitioner. Erie Railroad Co. v. Clara Callaway, Executrix, 91 N. J. Law 32.

It is also contended by the respondent-appellant that the right of the widow of petitioner to recover as a dependent is barred by statute, no claim having been filed by her in time. As the widow is not a party to the proceeding under review, that question is not an issue in this proceeding.

Let the petitioner-respondent submit a determination in accordance with these views.


author:
Harry J. Goas,
      Deputy Commissioner.

text:
    New Jersey Department of Labor Workmen’s Compensation Bureau.
    ALEXANDER GINSBURG, PETITIONER, v. WILLIAM J. LENSKJOLD, RESPONDENT.
    Upholsterer—Injury to Finger—Question of Employment—Question of Notice of Accident—Judgment For Petitioner.
    On findings of fact and determination.
    For the petitioner, Harry L. Tepper.

    For the respondent, Walter G. Ellis.

   The above matter coming on for hearing, and having been submitted to me for decision, I hereby find and determine as follows:

1. That this is a proceeding brought by Alexander Ginsburg against William J. Lenskjold, under an act entitled “An act prescribing the liability of an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, and the acts amendatory thereof and supplemental thereto; that a petition was filed herein on the 28th day. of January, 1925; that a copy of-said petition was served on the respondent in the month of February, 1925; that due notice of hearing on said petition and answer was given to the respondent; that the case came on for hearing on the 20th day of May, 1925, which hearing was held in the presence of Harry L. Tepper, Esq., of Braelow & Tepper, attorneys for the petitioner, and Walter C. Ellis, Esq., attorney for the respondent, on which day both parties produced witnesses who were examined in the presence of said counsel.

2. The petitioner was employed by the respondent as an upholsterer on the 14th day of August, 1924, and that he continued in such employment up to the 23d day of August, 1924; that his duties consisted of covering furniture and doing all the work necessary and required in the business of upholstering. The testimony concerning the termination of petitioner’s employment by respondent is in conflict. The respondent testified he discharged petitioner because he was a poor worker. Petitioner testified that his work was considerably slowed up by reason of the injury to his fingers, and, for that reason, respondent dispensed with his services. Petitioner testified that he worked for the respondent on Thursday, Friday and Saturday, of August 14th, 15th and 16th, and that during this period he used the tools of respondent. Saturday, August 16th, petitioner went to respondent and said that if he (respondent) was satisfied with his (petitioner’s) work, petitioner would go get his own tools from the place of his pevious employment. Petitioner went to get his own tools, but being unable to secure them, because the place of his previous employment was closed, he worked the entire week following with respondent’s tools. Petitioner worked for his previous employer for three years, and for eighteen years previous to that conducted an upholstery business of his own in Rutherford, New Jersey. At present he conducts an upholstery business in the city of Newark.

I determine, therefore, that petitioner’s claim is more plausible than respondent’s, and was not discharged for being a poor workman, as is claimed by respondent.

3. That' the petitioner at the time of the injury received for his services wages amounting to $51 a week.

4. That on the 21st day of August, 1924, the petitioner sustained personal injuries in the course of his employment, consisting of a cut on the right index finger and second finger of the right hand, and that the said injuries arose out of and in the course of petitioner’s employment.

5. That the respondent had actual knowledge of the occurrence of the said injuries. The testimony on this point was in conflict, the petitioner testifying that after he had sustained the cut and found blood flowing from his finger, ho .washed his finger, squeezed the cut and then bandaged it. The bandage, however, was not tied tightly, and a short time afterwards it came off, and that he, the petitioner, asked Mr. Lenskjold’s son, George, who was working there at the time to tie the bandage more tightly, and he did so. John Lenskjold .testified that he did not put on this bandage, and, furthermore, that there was no bandage on that finger, even on August 23d, 1924.

Pay Ginsburg, a daughter of the petitioner, testified that on Thursday evening, August 21st, 1924, she was in charge of the Ginsburg home, due to the fact that her mother was away on a vacation, and that seeing her father’s finger bandaged she inquired the cause of it, and that he stated that he had cut it at work that day; that she thereupon prepared a solution; that her father soaked his finger in it and that she bandaged the finger thereafter. She remembered definitely that'from the time she bandaged his finger and for a number of weeks thereafter she never again saw her father’s finger without a bandage of some kind on it.

Service of a proper written notice having been admitted by the attorney for the respondent, this matter was not gone into, although Charles Ginsburg, son of the petitioner, who served the written notice upon Lenskjold approximately two weeks after the accident, testified that, under instructions, he asked Lenskjold to supply medical attention for his father, which Lenskjold refused to do.

Abraham J. Ginsburg, another son of the petitioner, testified more particularly as to the expenditures made in behalf of his father in the treatment of his infected finger. He stated that, in addition to the doctor’s bill of, approximately, $175, he paid $55 in behalf of his father to the Newark Memorial Hospital, $40 to the nurse and $5 to a Dr. Haussling for a consultation.

I cannot conceive how respondent could not have known of petitioner’s condition in the face of this testimony, and I cannot credit John Lenskjold’s testimony.

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    ANTONIO CALIO, PETITIONER, v. HARRY DINNERMAN & HORWITZ-GOODMAN COMPANY, RESPONDENTS.
    Injury to Eye Resulting in Loss Thereof—Question of the Identity of Employer—Facts Submitted and Respondents Held to be Partners.
    Oil petition for compensation, determination and judgment.
    Eor the petitioner, Bourgeois & Coulomb and George M. Shipman, Jr.

    Eor the respondents, Harry Dinnerman, Edwards & Smith and Emil Neblo.

   A petition having been filed in the above-entitled cause of action praying for the compensation to which the petitioner may be entitled by virtue of the terms and provisions of an act of the legislature of New Jersey entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of his employment, &c./’ approved April 4th, 1911, together with the several supplements thereto and amendments thereof, and a time and place for hearing having been fixed, and the matter coming on to be heard before me at Atlantic City, New Jersey, on October 7th, 1925, on formal hearing in the presence of Bourgeois & Coulomb, by George M. Ship-man, Jr., counsel for petitioner, and Joseph B. Perskie, counsel for respondent Harry Dinnerman, and Edwards & Smith by Emil Neblo, counsel for respondent HorwitzGoodman Company, and having duly considered the evidence produced by said parties and arguments of counsel, I do find and determine as follows:

It appears from the testimony that petitioner was employed as a carpenter by the respondents, and was, at the time in question, working upon certain buildings which were being erected by the respondents at the corner of Drexel and Pennsylvania avenues, Atlantic City, New Jersey, and was receiving a wage of $49.50 per week. On the 24th day of January, 1925, while the petitioner was so engaged in work and was striking a nail with a hammer, a piece of steel, either from the nail or the hammer, flew into his right eye. Petitioner immediately reported his injury to respondent Dinnerman,. who was present upon the premises at the time, and Dinnerman directed petitioner to go to the doctor, which petitioner forthwith did. The doctor removed the steel after making an incision in the petitioner’s eye, and gave the petitioner a course of treatment in an endeavor to save the eye, but, subsequently, it became necessary to remove said eye, and an operation was performed for this purpose. Petitioner has done no work since the time of the accident.

Respondent Dinnerman testified that he reported the accident to the Horwitz-Goodman Company a few days after it occurred. This was admitted by Samuel Horwitz, president of this company.

It appears that the Horwitz-Goodman Company was the party chiefly interested in the building operation upon which the petitioner was working and contributed most of the capital for the operation. Samuel Horwitz, president of the Horwitz-Goodman’ Company, testified that his company was a real estate concern and had little or no experience in the building field, and knowing Dinnerman to be an experienced builder, he having worked with the company on previous operations of a similar nature, the Horwitz-Goodman Company entered into an agreement with him whereby Dinnerman was given charge of "managing the job,” the understanding being that Dinnerman was to receive a salary of $50 per week and twenty-two per cent, of the profits realized from the sale of the buildings. The Horwitz-Goodman Company was to receive fifty-two per cent, of the profits and the remaining twenty-six per cent, was to go to one Dr. Rubinstein, who also furnished some of the working capital. It -also appears that Dinnerman himself put a certain amount of capital into the enterprise. Dinnerman was to hire the labor, give out the contracts and have general supervision of the operation. The petitioner himself was hired by Dinnerman and referred to him as “the boss." It appears, however, that payments were generally made directly by the Horwitz-Goodman Company. Eor instance, the building permit for the operation was paid for by its checks; also the architect; also the contractor, who did the roofing and metal work, testified that his contract was directly with the Horwitz-Goodman Company; that Dinnerman paid him, giving him the Horwitz-Goodman Company’s check.

After a consideration of the entire evidence, I have come to the conclusion that the relation between Dinnerman and the Horwitz-Goodman Company was that of a partnership, and that they are jointly and severally liable to the petitioner.

Chables E. Cobbkst,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ANNIE R. PEPOON, PETITIONER, v. SAMUEL RACHELS, RESPONDENT.
    Death of Truck Driver in Accident—Facts Regarding Nature of Employment at Time of Accident Complicated—Held, That Accident Occurred in Course of Employment.
    On petition for compensation.
    Por the petitioner, Jacob I. Jaffe.

    Eor the respondent, Frank G. Turner.

   2. That Robert Pepoon, son of the petitioner, was employed by the respondent as a track driver on or about the 15th day of March, 1924, and that he continued in such employment up to the 15th day of March, 1925; that his duties consisted of going to the various railroad depots and handling newspapers at said depots for the respondent, and delivering the said newspapers among the several routes to .the customers of the said respondent.

3. That the son of the petitioner at the time of the injuries received for his services wages amounting to thirty ($30) dollars per week.

4. That on the 15th day of March, 1925, Robert Pepoon, the son of petitioner, was engaged in the capacity above mentioned, and his duties, as testified to by the respondent, were to go to the depot of the Delaware, Lackawanna and Western railroad at Hoboken, New Jersey, and there handle newspapers for delivery on the truck operated by the respondent.

5. That on said date the said Robert Pepoon made arrangements with the respondent to leave for Hoboken at an hour later than the usual time, and did arrive at Hoboken by a conveyance other than the truck operated by the respondent. The respondent’s testimony on that point was that the deceased had an errand to do in Passaic and would be detained, and the respondent consented to the arrangement and stated that as long as he, Robert Pepoon, deceased, would get there in time to handle the papers, it would be satisfactory.

The testimony of the respondent was that in getting to Hoboken, the usual route taken by his drivers, was the Paterson Plank road in East Rutherford, and then south into Hoboken. On the night of the accident the deceased procured an automobile belonging to a friend and proceeded along Paterson Plank road, and at a certain point he engaged another friend and made arrangements with him to drive this automobile back from Hoboken to Passaic.

He met his friend on Paterson Plank road en route to Hoboken. The testimony was that, after proceeding some distance from where he met his friend and along Paterson Plank road, a truck or automobile came in the opposite direction and forced the car in which the deceased and his friend were riding off the road and into a telegraph pole, causing the car to turn over and throwing the deceased into a ditch, as a result of which injuries received the deceased died forty-eight hours afterwards.

There is no doubt that if the accident had occurred while Robert Pepoon was on his personal errand that no recovery could he had. If the accident had happened on a road to which Robert Pepoon could have deviated on his private business, then no recovery could be had in that instance for compensation. But in view of the fact that testimony was adduced that the deceased was proceeding on the usual route employed by the respondent’s drivers, and in view of the fact that arrangements had been made to bring the automobile back from Hoboken by the witness, who was with the deceased at the time of the accident, there can be no doubt that the deceased was engaged in his usual and general duties for which he was employed by the respondent.

This accident occurred while the deceased was carrying out the duties of the respondent, and since the accident arose out of and in the course of employment, the respondent is therefore liable to the dependents of the deceased for compensation in accordance'with law. On this night he was on his way to Hoboken in an automobile instead of a truck and at a later hour, by special arrangement made previously with his l emplo3rer. ' He was accordingly engaged in the work of his employer, and since the accident might well have occurred earlier in the evening while in the truck of the respondent, no prejudice is shown. The respondent, by acquiescing in this arrangement, tacitly assumed any additional hazards, if there were any.

In the case of Kolaszynski v. Klie, 102 Atl. Rep. 5, the court was confronted with the question as to whether or not an employe was entitled to compensation where she had disobeyed instructions as to the manner of doing her work. In that case the employe used wood alcohol to assist her at lighting a fire, although she was instructed never to use kerosene or anything like that, and the court said that “it was a fortuitous event, which might, indeed, be expected, but might never happen. We must conclude that it arose out of and in the course of employment unless the disobedience of orders prevents that conclusion. The disobedience of orders in this case was a disobedience of orders as to the way in .which the work should be done. The work itself was the very work decedent was expected to do. It was done at the very place where it was meant to he done.” So, in the case at bar, the decedent was expected to drive along this particular route in order to reach his destination where he was to unload papers. In the case at bar the decedent followed the instructions of the employer, and this case makes’ out a stronger case for the dependents than the case of Kolaszynski v. Klie.

6. That the petitioner incurred expenses for medical services and for burial of the said.Robert Pepoon amounting to two hundred ($200) dollars, of which amount $150 represents thí) allowance made by law for funeral expenses.

7. I find, therefore, that the petitioner is entitled to compensation for a period of three hundred (300) weeks, and I find further that the petitioner, Annie R. Pepoon, is entitled to eighty-six (86) weeks’ compensation at the rate of thirteen dollars and fifty ($13.50) cents per week from March 18th, 1925, to December 5th, 1926, which period covers the period of dependency of the dependents, Bernard D. Pepoon and Anna Pepoon, and that from and after December 5th, 1926, petitioner, Annie R. Pepoon, is entitled to compensation of eighty-five (85) weeks at the rate of twelve ($12) dollars per week from the said 5th day of December, 1926, to the 13th day of August, 1928, which said period covers the period of dependency of the dependents, the petitioner," Annie R. Pepoon, and the dependent, Anna Pepoon, and from and after the said 13th day of August, 1928, the petitioner is entitled to compensation for a period of one hundred and 'twenty-nine (129) weeks at the rate of ten dollars and fifty cents. ($10.50) per week.

The legal adviser of the petitioner is entitled to compensation (to be determined as hereinafter provided) in addition to his costs allowed by law in the sum of forty-three ($43) dollars for stenographic fees, to be paid in the following manner, that is to say—•

9. Costs will be allowed the petitioner.

It is therefore on this 2d day of November, 1925, ordered that judgment finally he entered in favor of the petitioner, Annie R. Pepoon, and against the respondent, Samuel Rachels, in the sum of thirty-five hundred and thirty-five dollars and fifty ($3,535.50) cents, for a period of three hundred (300) weeks, beginning with the 18th day of March, 1925, payable as follows:

The sum of three hundred and ninety-one dollars and fifty ($391.50) cents, being compensation from March 18th, 1925, to October 26th, 1925, shall be paid forthwith.

The sum of thirteen dollars and fifty ($13.50) cents per week up to and including December 5th, 1926.

The sum of twelve ($12) dollars commencing the 5th day of December, 1926, up to and including August 13th, 1928, and from and after the said 13th day of August, 1928, the sum of ten dollars and fifty ($10.50) cents per week for a period of one hundred and twenty-nine (129) weeks from said date.

It is further ordered that the said respondent pay to petitioner forthwith funeral expenses in the sum one hundred and fifty ($150) dollars.

The question of attorney fee will be disposed of later by a supplemental determination and order.

Harry J. Goas,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALBERT WYLIE, PETITIONER, v. CHARLES T. EASTBURN, OR, IN THE ALTERNATIVE, JOSEPH VINCH, RESPONDENT.
    Employe Directed by One Respondent to Drive Such Respondent’s Truck When Directed by Other Respondent to Do So— While Attempting to Help An Employe of the Other Respondent to Repair a Truck Belonging to Other Respondent He Was Injured—Held, Not to Have Been Injured in Course of His Employment.
    This action was brought bj’ Albert Wylie against Charles T. Eastburn or Joseph Vinch in the alternative under the first section of the Workmen's. Compensation act. The action was.prosecuted against the respondent, Joseph Vinch, alone.
    It appears that the petitioner was employed steadily by Vinch as a truck driver; that on the 21st day of April, 1924, said Vinch, who was in the trucking business, had an arrangement with the respondent, Eastburn, whereby Vinch was to haul sand and gravel for Eastburn; that Vinch sent the petitioner, Wylie, upon one of the trucks to the place-whore Eastburn was having the sand and gravel hauled, and told the petitioner to haul sand and gravel wherever instructed to by Eastburn or his foreman. The petitioner was at no time in the employ of Eastburn. There was testimony by the petitioner that he was to “do anything anybody told him to,” but it was denied by the respondent, Vinch, that he gave any snch instruction or order to the petitioner.
    It also appears that another truck owned by Eastburn, being driven by another person, an employe of East-burn, in the same work, had become stalled on the road; that the petitioner went over to the stalled truck and attempted to start it; that he was unable to do so and proceeded to get under the truck to see what the trouble was; he was warned by the driver of the truck not to get under it as it was dangerous, but disregarded the warning, proceeded under the truck and had his arm injured by the-machinery while he was examining the truck. It does not appear that the petitioner at any time was under a duty to repair a truck either for Vinch or for Eastburn. His sole-duty was to drive a truck provided by Vinch wherever told to by Eastburn or his foreman.
   OPINION.

It seems to us that the injury caused to the petitioner did not arise out of or in the course of his employment. It was at no time the duty of the respondent, Vinch, to repair a truck owned by Eastburn; consequently, it could not have been the duty of the petitioner, Wylie, to do for Eastburn. what Vinch was not called upon to do.

Moreover, it was not shown that it was the duty or part' of the empbyment of the petitioner to repair a truck owned by the respondent, Vinch. In fact, it was testified, and it would seem to be so that whenever a truck of Vinch broke down, it was the duty of Wylie to call Vinch and obtain instructions as to what to do for repairs. If this be so, it was not the duty of Wylie to repair his truck. A fortiori it could not have been the duty or part of the employment of Wylie to repair a truck, not only not belonging to Vinch, but actually being driven by an entirely different person; Wylie was the driver of a truck, not a general mechanic for the repair of all automobiles.

Furthermore, the fact that Wylie Was warned by the driver of the stalled truck not to proceed under the truck, indicates that it was not part of his duties or employment to repair the stalled truck. It is unreasonable to believe that it was part of Wylie’s business to do anything that “anybody told him to.” Common experience shows that persons are not hired to do anything that anybody tells them to. It seemed to have been urged at the hearing that upon this ground the petitioner was acting in the course of his employment when he was injured, but this proof is not only so broad that it cannot be believed, but is so indefinite that it leaves no clear impression of the limits of his duties.

The claim of the petitioner must therefore be dismissed.

W. E. Stubbs,

Deputy Commissioner of Compensation.


text:
    JULIA PLASKON, PETITIONER, v. NATIONAL SULPHUR COMPANY, RESPONDENT.
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    Workman, During Intermission For Coffee, went on Property of Another Employer For His Own Purposes and Was Injured— Case Dismissed..
    On determination and judgment.
   A petition was duly filed on July 5th, 1925, in this cause, and the respondent filed its answer. The cause came up for hearing at Jersey City on November 20th. The petitioner called witnesses on her behalf and established the following employed by the National Sulphur Company, at Bayonne, facts: That she was the widow of John Plaskon, who was New Jersey, on June 6th, 1925. He was employed as a laborer in the respondent’s plant and he used a shovel in his work. He went to work about three o’clock in the afternoon and at about four o’clock he had left his work and prepared some coffee for himself and two other workmen. After preparing the coffee he went out on a part of the plant which is known as a bridge connecting two buildings of the plant. This is about three hundred feet from the water. It was a warm day and he went on the bridge to cool off. He returned to his work for a few minutes and then his fellow-workmen could not find him. He was last seen coming from a barge owned by the American Borax Company. The American Borax Company had the adjoining plant. When he came from the barge of the American Borax Company, he had in his hand a large white lump of borax. This had no connection with his work. While he was carrying the borax from the borax company’s barge he stepped upon the deck and stumbled and fell into the water. His work did not take him near the dock and did not take him near the water. He was not engaged in his employment at the time of this accident.

I do find and determine on this 20th day of November, 1925, that the said accident did not arise out of and in the course of his employment. It is thereby ordered that the petition herein be and the same hereby is dismissed.

Charles E. Corbin,

Deputy Commissioner of Labor.


text:
    New Jersey Department of Labor, Workmen's Compensation Bureau.
    N. CARACAUS, PETITIONER, v. STEEL EQUIPMENT CORPORATION, RESPONDENT.
    On determination and rule for judgment.
    Eor the petitioner, William A. Spencer.

    For the respondent, Richard W. Baker.

   The deputy commissioner was asked to approve this compromise and enter an award on the same.

I, therefore, find and determine that the petitioner, in accordance with the compromise, is entitled to compensation for temporary disability for a period of one (1) week, which has already been paid, and compensation for permanent disability for a period of sixty-five (65) weeks based upon one hundred (100%) per cent, loss of function of the right index finger and right second finger, the compensation rate being sixteen dollars and thirty-three ($16.33) cents a week.

* ■ * ' * * * * *

Harry J. Goas,

Deputy Commissioner.