text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ADAM HARRELL, PETITIONER, v. JAMES MITCHELL, INCORPORATED. A CORPORATION, RESPONDENT.
    For the petitioner, Mendelsohn & Mendelsohn.

    For the respondent, Paul Koch.

   2. That the petitioner was employed by the respondent as ■ a laborer on or about July 14th, 1924, and that he continued in such employment up to August 5th, 1924; that his duties consisted of working as a laborer in a gang of men employed by the respondent in cleaning up the cellar and doing other laborers’ work on and about the building known as the Y. M. —Y. W. H. A. Building, located on Yan Houten street, Paterson, New Jersey, which was then in the course of construction.

3. That the petitioner, at the time of the injury, received for his services wages amounting to the sum of $33 per week.

4. That on the 5th day of August, 1924, petitioner sustained personal injuries as a result of an accident; that the said accident consisted of the petitioner’s foot slipping off a stone, upon which it was resting, while the petitioner was in the act of pulling or lifting up another stone, weighing about seventy-five pounds, out of the mud in the cellar of the Y. M. — Y. W. H. A. building on Yan Houten street, Paterson, New Jersey, thereby causing him to suddenly lurch and twist and jerk his back, which was immediately followed by severe pain in his back and an inability upon his part to straighten up, and that the said accident arose out of and in the course of the petitioner’s employment.

5. That the petitioner testified that he was instructed to commence work by Bob Hataroff; that he, as well as the other men in his gang, were told what to do and when to do it, and received orders and instructions in connection with their work from Bob Hataroff, from whom alone orders came to them; that it was this same Bob Hataroff who, on Saturdays, paid off the petitioner and the other men in the gang with him, and it was this same Bob Hataroff who hired and even discharged the petitioner and other men in the gang with him, and that the petitioner and other men in his gang looked upon and treated Bob Hataroff as their foreman. This testimony was undisputed and was supported by that of Mr. Sisma. Mr. Nelson, the respondent’s own general superintendent, also testified that he used Bob Hataroff to “kind of look after the common laborers when he could not get there in time,” and that “he hired the laborers through Bob Hataroff,” and that it was Bob Hataroff’s duty to report the occurrence of any accident to him, and that, pursuant to the instructions of the respondent, entrusted Bob Hataroff with the duty to “kind of keep an eye on them” (petitioner and the men in his gang), and that he would tell Bob Hataroff what he wanted done, who in turn, no doubt, would carry out these instructions by ordering the men to do these things, and that it was this same Bob Hataroff who was employed by the respondent “to look after the men there for us” (petitioner and the other men in his gang).

6. That from the foregoing evidence, Bob Hataroff, even if he were not actually and expressly hired by the respondent as a foreman of the petitioner’s gang, the respondent at least held him out and permitted him to act as the foreman, or at the very least, as the immediate superior of the petitioner and the other men in his gang with petitioner.

7. That it was this same Bob Hataroff who was present at the time that the petitioner met with the accident in question, and who came to the assistance of the petitioner and helped him to straighten out and helped him away from the spot on which the accident occurred; and that.it was this same Bob HatarofE who had actual knowledge of the occurrence of the said accident, and injuries to the petitioner, by .reason of which the knowledge of the said Bob HatarofE of the occurrence of the accident and the injuries in question to the petitioner was that of the respondent in this case.

8. That as a result the petitioner received injuries to his back, and particularly in the sacro-iliac region, and that the said injuries caused the petitioner a temporary disability, which lasted for a period of twelve weeks, and that he has a disability permanent in quality and partial in character which is as follows: An injury in the sacro-iliac region which disables him from doing any heavy lifting and from pursuing his regular occupation as a common laborer, and which disability is twenty per cent, of total permanent disability.

* * % * * *

Harry J. Goas, Deputy Commissioner.


source: Caselaw Access Project

author: Harry J. Goas, Deputy Commissioner.

license: Public Domain

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    THOMAS ENRIGHT, PETITIONER, v. ESSEX ICE AND COLD STORAGE COMPANY, RESPONDENT.
   This matter being opened to the court by Henry Gottfried, Esquire, attorney for the petitioner, and it appearing that a formal hearing was held, and the court having heard the testimony of the witnesses and physicians produced both by the petitioner and the respondent, and from the evidence produced, I do find and determine the following:

That an accident occurred on May 1st, 1927, while the petitioner was in the employ of the respondent, in the manner as the testimony indicated, by a cake of ice weighing about three hundred pounds falling a distance of thirty feet, striking the petitioner a glancing blow on the head, throwing petitioner backward and violently on his knees to the floor.

And I do find that the petitioner suffered an injury to the right leg about the knee joint, which was defined as a loosening of the curtilage and a sprain,' and that he further suffered a laceration requiring five stitches, and petitioner complains of a great deal of pain in the frontal occipital portions of the head, headaches, dizziness and impairment of vision; petitioner also complains of an injury to the spine over the whole lumbar region, particularly when bending down and when lifting up objects.

I do further find from the testimony that at the time of the accident petitioner was rendered unconscious, was removed to the St. James Hospital, was treated by Dr. A. J. Mitchell, petitioner’s physician, while at the hospital, and later, at his home, from May 1st, 1927, until June 3d, 1927; and I do further find that the petitioner is entitled to be reimbursed in the sum of fifty dollars ($50) for the medical attention rendered by Dr. A. J. Mitchell from May 1st, 1927, to June 3d, 1927, when respondent’s physician began treating petitioner.

I do further find that petitioner is entitled to be reimbursed in the sum of four dollars and ten cents ($4.10) for his expenditures in purchasing medicine in treatment of the injuries suffered.

I do further find that petitioner is not entitled to recover the sum of twelve dollars ($12) expenses for the purchase of a brace.

I do find that the petitioner was under treatment by a physician and was unable to return to work from May 1st, 1927, the date of the accident until August 8th, 1927, and do therefore find that the petitioner is entitled to receive temporary disability from May 1st, 1927, to August 8th, 1927, a period of fourteen weeks at seventeen dollars ($17) per week, a total of two hundred thirty eight dollars ($238).

There was a decided difference of opinion in the medical testimony with respect to the extent of the injury to the right leg — first with respect to the extent of the permanent disability, and second as to whether an operation to remove the loose cartilage would be a major or minor operation, and whether or not the operation, if performed, would be successful and thereby remove the permanent disability, and whether the petitioner would be compelled to submit to such an operation.

I do find that the operation would require the administering of an anesthetic, and I am of the opinion that the operation would constitute a major one, and would be at the risk of petitioner’s life, and find, as a matter of law, that petitioner is not compelled to submit to the operation.

After examining the testimony of the physicians produced, I am of the opinion that the permanent total disability to the right leg amounts to thirty-three and one-third per cent. That taking into consideration the injury to petitioner’s right leg, and to petitioner’s head, as well as petitioner’s contention of an injury to the back, I do find the entire permanent disability to be fifteen per cent.

I do further find from the testimony of the petitioner that after petitioner returned to work on August 8th, 1927, he was unable to do the amount and kind of work that he did prior to the accident, and that petitioner was placed on a night shift where his work was lessened and his duties lighter. Petitioner’s testimony is borne out and corroborated by the testimony of the engineer, Carl Amiel Peterson, a witness produced by the respondent to rebut this testimony.

I do therefore find and order respondent to pay to petitioner temporary disability from May 1st, 1927, to August 8th, 1927, being fourteen weeks at seventeen dollars ($17) per week, a total of two hundred thirty-eight dollars ($238).

I do further find and order respondent to pay to petitioner the sum of fifty dollars ($50), the fee paid by petitioner to Dr. A. J. Mitchell, and a further sum of four dollars and ten cents ($4.10) expended hy petitioner for medicine.

I do further find and order respondent to pay the petitioner fifteen per cent, of total permanent disability, being the sum of one thousand two hundred seventy-five dollars ($1,275), payable in weekly installments of seventeen dollars ($17) each, for seventy-five weeks, said installments' to begin from August 8th, 1927.

I do further order respondent to pay to petitioner the sum of one hundred dollars ($100) for expert medical testimony at the hearing of this cause.

I do further order respondent to pay to petitioner the sum of ten dollars ($10) for stenographic fee expended by him.

I do further order respondent to pay the attorney for the petitioner the sum of one hundred dollars ($100), and do further order the petitioner to pay to his attorney the sum of one hundred dollars ($100). ■

Harry J. Goas, Deputy Commissioner.


author: John J. Stahl, Referee.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    TIMOTHY MACK, PETITIONER, v. JOHN E. LAIRD, RESPONDENT.
   $$$$$$$

1. That on or about November 3d, 1926, the said petitioner was employed as a grinder or cider presser by the said respondent at its plant located at Scobeyville, Monmouth county, New Jersey, at a weekly wage of $24; that on the day last-above mentioned, at around six 3?. m., about the usual quitting time, he was told by the said respondent that he should return to the plant that evening and work overtime; that thereupon he got into his own automobile and started driving along the public highway leading from Scobeyville aforesaid, to his home at Colt’s Neck, Monmouth countjr, aforesaid, in order to partake of his supper, and had proceeded along the said highway a distance of at least two miles when his said automobile collided with an automobile truck being operated along the said highway in the opposite direction by a person having no connection with the respond: ent; that ‘as the result of the said collision, the said petitioner sustained the injuries to recover compensation for which this proceeding was instituted; that the said respondent secured knowledge of the happening of the accident within the time required by law, but that the said 'petitioner did not request the said respondent to furnish medical or hospital services, nor did he make any claim for compensation other than filing the petition in this proceeding.

2. That the injuries so sustained by the said petitioner as aforesaid did not arise out of and in the course of his employment by the said respondent, and that he is not entitled to receive from the said respondent compensation for the disability entailed thereby.

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WLADYSLAW KOSCIENSKI, PETITIONER, v. E. MOORE COMPANY, RESPONDENT.
    For the petitioner, Bernard Mindes.

    For the respondent, Richard W. Baker.

   % % * * * jfc t]i

The petitioner testified in his own behalf and also called to testify Mr. James Burns and Dr. Fine. On behalf of the respondent, Dr. Griffith and Dr. Dorn were called to testify. The petitioner alleged that he sustained an injury by accident arising out of and in the course of his employment on August 6th, 1926, and that as a result thereof, though he was not forced to lose any time from his work, he suffered from lung trouble which has caused him a permanent disability. He alleged that while unloading a truck a bag of salt was swung onto the back of his shoulders by a fellow-employe, Mr. Burns, and that as he gave under the weight it fell off his shoulders, and the jar resulting from this caused him to suffer from pulmonary tuberculosis according to the determination of Dr. Fine, who treated him. The respondent, on the other hand, denies that the petitioner either had or has had pulmonary tuberculosis in accordance with the testimony of Dr. Griffith and of Dr. Dorn, who is in charge of the state tubercular clinic, and further maintains that such a slight accident as that received by the petitioner on August 6th, 1926, could not have caused a condition of pulmonary tuberculosis even if the petitioner was suffering from the same.

After thoroughly reviewing the facts in the testimony of this case I have come to the conclusion that the petitioner has failed to show (1) that he has been suffering from a condition of pulmonary tuberculosis, and (2) that such pulmonary tuberculosis, even if he had been suffering from the same, was caused by the alleged accident of August 6th, 1926, while working for the respondent.

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

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    STEPHEN SABLE, PETITIONER, v. SAM MITTERHOFF, RESPONDENT.
    For the petitioner, Charles Becker.

    For the respondent, Edwards & Smith (Andrew O. Wittreich, of counsel).
   3. It appeared that the petitioner in the above matter, since the filing of the petition in his behalf, had died and his widow now sought to recover for his injuries and death.

4. It was the contention of the petitioner’s attorney that the deceased, on or about February 30th, 1935, while in the employ of the respondent as a laborer, was injured in an accident which arose out of or in the course of his employment while he was removing a barrel of apples; the same slipped, injuring his right hand and striking his chest, causing an injury to chest which resulted in a lung abscess, and that the deceased died as a result of tuberculosis developed as a result of his injuries.

5. Eespondent, however, contended that while the deceased had been injured in an accident arising out of or in the course of his employment by the respondent, the only injury which he suffered was a laceration of the right hand near the core of his thum of about two inches; that any disability which the deceased petitioner had suffered lasted for but a few weeks. It was only a temporary and not a permanent disability, and was therefore only entitled to be paid compensation for the length of such temporary disability. The respondent, however, in order to compromise, offered to pay to the petitioner’s widow ten weeks’ compensation at the rate of seventeen ($11) dollars per week, or the sum of one hundred and seventy ($110) dollars; and also offered to pay the sum of thirty ($30) dollars as a counsel fee to the attorney of the widow of the petitioner.

6. In order to satisfy myself, in so far as what caused the death of the petitioner, I examined, as a witness, the petitioner’s widow, Mrs. Stephen Sable, of No. 85 Tichenor street, Newark, New Jersey, and ascertained that her husband, prior to the time of his death, had been a heavy drinker, and that he had been admitted to the Newark City Hopital, where he later died, as a delirium tremens patient, and also suffered from asthma, and that he died from pulmonary tuberculosis.

I also questioned her concerning the offer of compromise by the respondent, and she was satisfied that she receive the sum of one hundred and seventy ($110) dollars, or ten weeks’ compensation at the rate of seventeen ($11) dollars per week, in full satisfaction of any and all claims which she might have against the respondent.

7. I do, therefore, find and determine that the deceased petitioner, Stephen Sable, was injured in an accident arising out of and in the course of his employment by the respondent on or about February 20th, 1925.

8. I do, therefore, further find that the. only injury which the deceased petitioner sustained on the day in question was that the palm of the petitioner’s right hand was lacerated for about two inches near the core of the thumb; that this was the only accident which the deceased petitioner suffered while in the employ of the respondent upon the day in question, and that the deceased petitioner did not die from any consequences of the accident sustained on February 20th, 1925.

9. I do further find that the amount offered by the respondent, in full and complete settlement of any and all claims which the deceased petitioner’s widow might have against the respondent, which is the sum of one hundred and seventy ($170) dollars, or ten weeks’ compensation at the rate of seventeen ($17) dollars per week, and which is to be paid in a lump sum to her, is fair, ample and just.

10. I do further order that the attorney for the petitioner shall be paid a counsel fee of thirty ($30) dollars, to be paid by the respondent for his services rendered in this matter.

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JAMES FLANAGAN, PETITIONER, v. HAYES-HUNT CORPORATION, RESPONDENT.

      For the petitioner, Sara M. Lewitt.

    For the respondent, Norman F. Kazenstein.

   1. Petitioner testified that for sometime prior, in March, 1926, he had been in the employ of the respondent as a general repairman.

2. That on March 4th, 1926, while gas-blasting a cowl vent he struck the back of his right hand and sustained a cut about one inch long which bled somewhat; that he went to Mr. Morrissey, the foreman, who put iodine on the hand, then he went to the first aid room. On his way to the first aid room a Mr. Ered Allen and a Mr. Michael Loftus were encountered and that he mentioned the accident to them. In fact he was at the time working with Mr. Loftus and Mr. Loftus knew of the accident at the time it happened. That he reported to the first aid room on the date of March 4th and continued to work for the respondent with a few interruptions for several months thereafter. That after treatment at the first aid room on March 4th he saw his own physician, Dr. Coffee, who treated him several times, and that subsequent to his treatment by Dr. Coffee he was treated by Dr. Miles O’Eeilly, and following that he was under the care of Dr. Phelps of the Orange Hospital. He further testified that he had done no work since he left the employ of the respondent.

3. Mr. Ered Allen testified that he was in the employ of the respondent during the months of February and March, 1926. Sometime about the month of March he saw the claimant who told him he had a cut on the hand and he was going to the first aid room. He admitted he did not actually know whether the claimant had been to the first aid room or not and further stated that he wdrked in an entirely different part of the building from Mr. Elanagan.

4. Mr. Michael Loftus testified that he was a fellow-workman of the petitioner, and that on or about the 4th of March, 1926, he knew that the petitioner cut his hand and that the petitioner stated to him that he was going to the first aid room, but he did not know of his own knowledge whether or not the petitioner had been to the first aid room.

5. Dr. Michael Coffee testified that he first saw the petitioner on March 4th, 1926, at which time the petitioner had a small cut on the back of the right hand. This was covered with mercurechrome ointment and was in his opinion a fresh cut and not infected. That he only saw the petitioner seven or eight times.

6. Mrs. Hickey, the nurse at the respondent’s plant, testified that she has been the nurse in charge of the first aid room from the beginning of 1926 up to the present time. She testified that she first saw Mr. Elanagan on September 21st, 1926, when he came to the first aid room and the back of his right hand was somewhat swollen and had the appearance of being somewhat chapped. That she saw no cut or other wound. She testified further that whenever an employe reports to the first aid room with or without an injury she makes a record on a card which she keeps. She further testified that there is a large amount of cheesecloth used in the plant and very frequently men do not report to the first aid room with minor injuries, but bind up their wounds with pieces of cheesecloth and continue to work.

7. Mr. Skinner, paymaster of respondent’s plant, referring to the payroll records, testified that Mr. Elanagan did not do any work for the respondent between Eebruary 19th, 1926, and March 15th, 1926.

8. That Mr. William B. Wilson, safety and personnel man of the respondent, testified that he is the person to whom accident reports are made, and that he had no record of any accident occurring to James Elanagan on or about March 4th, 1926. He outlined the methods by which accidents are reported and stated that when men go to the first aid room a record is made in duplicate, one of which is kept in the first aid room and the other is forwarded to him and immediately he has reports filled out for the state department of labor and the insurance company. He stated that the first time he knew that there was anything the matter with the petitioner was sometime on or about the month of September, 1926. Mr. Wilson testified further that there is much cheesecloth used in the respondent’s plant and that sometimes men bind up minor injuries themselves and do not report to the first aid room.

From the evidence presented it would appear that if, as this petitioner maintains, he had an accident on March 4th, 1926, it could not have happened at the plant of the respondent. That if it happened at some other time than March 4th, 1926, the respondent had no knowledge or notice of the accident. That from the testimony of Dr. Coffee it would appear that on March 4th, 1926, when he testified he treated the petitioner, he had a fresh cut on the back of his right hand not infected. If this cut was fresh it must have been sustained subsequent to his employment by the respondent. In view of the inconsistencies in the petitioner’s ease it is hereby determined that the petition herein be dismissed.

Harry J. Goas, Deputy Commissioner.


author: Charles E. Corbin, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELIZABETH ZOCK, AS WIDOW OF FRANK ZOCK, IN BEHALF OF HERSELF AND CHILDREN, PETITIONER, v. FREDERICK SNARE CORPORATION, RESPONDENT.
    For the petitioner, Kent & Kent.

    For the respondent, McDermott, Enright & Carpenter (by Carl S. Kuebler).

   * % # $ * * *

The testimony shows that the deceased, Erank Zock, was employed by Erederick Snare Corporation as a concrete laborer at the weekly wages of $44, and that on December 11th, 1926, he sustained an accident arising out of and in the course of his employment. It is contended that he fell down a ladder from the third rung to the bottom, causing a slight injury to his hip and arm, which is not denied by the respondent. It is contended by the respondent that the death of Erank Zdek was not the result of the accident on December 11th, 1926, and was not the result of any accident arising out of and in the course of his employment with the respondent, but that the decedent died from natural causes, and that Erank Zock received compensation in full for the-injury which he sustained on December 11th, 1926, in the form of temporary disability to March 14th, 1927.

I considered very carefully the testimony introduced in this case. It appears from the testimony that the accident occurred at nine-thirty A. m. on December 11th, 1926, and the petitioner worked until four-thirty p. m. on that day; that he returned to his home and was confined there under treatments by Dr. Draesel, and that on December 25th, 1926, the petitioner was taken with a severe sickness; that Dr. Eckert was called and tha't he pronounced him to be suffering from cardiac decomposition and acute rheumatic fever; that Dr. Eckert treated him for two weeks at his home, after which he was treated at Dr. Eckert’s office. There was some question as to whether or not Mr. Zock ever returned to his work. The petitioner claims that he did not and the respondent claims that he worked for a month, between March 14th and April 16th.

It is the opinion of Dr. Eckert that the accident of December 11th was an inciting cause of his serious heart condition which resulted in Mr. Zock’s death. I am impressed, however, with the testimony of Dr. Londrigan, the state doctor, who testified that he examined this man in March, 1927, at which time he found no evidence of the trauma of December 11th; that he found the man poorly nourished, having pulsations in his neck and a double murmer in the mitral area. Dr. Londrigan’s testimony shows that the history which he got of the case shows that Mr. Zock was very ill fifteen years ago, had a serious illness in his youth, and rheumatism twenty-five years ago. In Dr. Londrigan’s opinion, this condition of the heart and the death of Mr. Zock are in no way related to the accident of December 11th, 1926. Dr. John Cassidjr, a heart specialist and professor in Bellevue Medical School, agrees with Dr. Londrigan and insists that the death of Prank Zock was not the result or was not aggravated by the accident of December 11th, 1926.

At the close of the testimony both attorneys submitted the case to me for determination.

I find as a matter of fact that the death of Prank Zock on July 11th, 1927, was not caused by the accident of December 11th, 1926, nor was any previous condition of his heart aggravated by the accident of December 11th, 1926, but that the death of Prank Zock was due to natural causes and therefore the petitioners in this case are not entitled to compensation.

It is therefore ordered that judgment be entered in favor of the respondent in the above-entitled cause, without costs.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK OLECHOWSKI, PETITIONER, v. BOTANY WORSTED MILLS, INCORPORATED, RESPONDENT.
    For the petitioner, Ward & McGinnis.

    For the respondent, Clarence B. Tippett (Louis C. Friedman, appearing).
   rjt ¡I*

The attorney for the petitioner moved'to amend the said petition filed herein to change of record the date of accident from November 3d, 1926, at ten a. m., to July 1st, 1926, at 10 a. m. This amendment was allowed by the presiding deputy commissioner and consented to by the attorney for respondent; and in order that it could be verified, the petitioner’s attorney called the petitioner, who was sworn, and through an interpreter appearing with the petitioner, who was also sworn, the said petitioner stated that the date of accident was July 1st, 1926. He was also questioned by the counsel for respondent if he understood that this was the definite date of claimed accidental injury as alleged in the petition, and he reiterated that July 1st, 1926, was the date of accident. The presiding commissioner also questioned the petitioner upon the same point, his definite admission being that such was the .date of accident and not November 3d, 1926. Whereupon, counsel for respondent moved that the petition herein be dismissed for the reason that the date of accident was now sworn to by the claimant as July 1st, 1926, and since the petition was not filed with the bureau at Trenton until August 3d, 1927, the said claim for compensation was barred in that it was not filed within the statutory time prescribed of one year from the date of accidental injury.

Before ruling upon said motion, the presiding commissioner permitted the petitioner’s attorney, with consent of respondent’s attorney, to call the plant nurse, Laura Sartoir, who denied any knowledge or notice of any accidental injury of record with the employer; also, Dr. Yan Schott, who stated that on February 3d, 1927, he first saw the petitioner at the plant hospital, finding an epithelioma on the left lower lip, which he considered of long standing, and disclaimed any history of a burn received by him then or at any time to the said left side of the lower lip; and further denied any treatment ever having been afforded him by the plant, or any record of any treatment for any burn conditions.

Further, Joseph Paschke, foreman, was called, who denied any knowledge of any accidental injury, although recalling that sometime before Christmas, 1926, the exact time he could not state, he noticed claimant with a plaster on his lip, and questioning him about it, was informed he had had a slight burn on his lip; but he could not recall the exact date of this conversation nor was any date given by claimant of when this happened.

Henry Bley, employed as a fireman, was also called, who recollected seeing claimant wipe his mouth one day with his hand, stating he had been burned on the lip by a hot spark; but he could not give the date that this occurred, although thinking it occurred in the fall, sometime, without being exact or certain as to just when this was. He did not see the lip burned.

The above brief summary of the testimony so introduced on the question of accidental injury and the date thereof, conclusively demonstrates to my satisfaction that the claimant has failed to present legal evidence of a claim meriting an award of compensation, particularly upon two grounds- — ■ first, that the undisputed testimony of the claimant shows the accident for which he claims compensation occurred July 1st, 19-26. His own evidence is the best evidence, and no other witnesses were able to give any definite date when the alleged burn, if he did receive one, occurred. It may also be observed that a man, employed as a fireman, may from time to time be struck by chips of flying coal embers which of themselves do not cause disabiility. In this instance, the petitioner definitely alleges the date of the burn for which he claims a right to compensation did occur on July 1st, 1926. Therefore, the petition in this case was verified on August 2d, 1927, and filed August 3d, 1927, with the workmen’s compensation bureau, which was beyond the statutory period of one year. Second, from the testimony of the nurse and the plant surgeon, who had the records of claimant before me, the proof submitted fails to show the employer had any notice or knowledge of the alleged claim of accidental injury; and the testimony of the foreman, Paschke, fails to show knowledge of any definite accidental injury sustained at any given time, so that the employer did not have the requisite notice or knowledge within ninety days after the- occurrence of the alleged injury, which of itself would be sufficient, in fact and in law, to disallow a right to compensation.

Therefore, having given due consideration to the facts in issue and the reasons hereinabove set forth, I rule that the petitioner herein failed to comply with the statutory requirements meriting an award.

Harry J. Goas, Deputy Commissioner.


author: Per Curiam.

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MICHAEL POLOM, PLAINTIFF IN ERROR.
    Argued January term, 1928
    Decided September 18, 1928.
    Before Justices Parker, Mixture and Campbell.
    For the plaintiff in error, William Reich.

    For the state, George M. Hillman.

   Per Curiam.

The defendant ivas convicted of larceny in the Burlington Quarter Sessions. The conviction is here under the one hundred and thirty-sixth section of the Criminal Procedure act.

The owner of an auto which had skidded into a creek, engaged the defendant to haul the auto from the creek for $10. While removing the car some boys placed certain tools from the damaged car in the defendant’s wrecking - car. Thereafter a state policeman, in the absence of the owner, ordered the defendant to remove the wrecked car from the road. The defendant then hauled the ear to his garage and removed the tools from his “wrecker” to his garage office. Later in the same day the wrecked car was sold by its owner to the complaining witness, and was hauled, without the tools, to the latter’s garage, by the defendant. No mention of the tools was made at the time of the sale, nor did the complaining witness at any time see the tools, but he claims the same as having been included in the sale of the car. The defendant never denied possession of the tools, bnt claimed a lien upon them for hauling the car from the road to his garage.

There was no evidence of an original fraudulent taking or intent to steal the tools. To constitute the crime of larceny the intent to steal must exist at the time of the taking. Wilson v. People, 39 N. Y. 462, citing Lord Coke, who observes that the aninum furandi must exist “when the article cometh into his hands or possession.” Coke Inst. 107. The rule is elementary. 4 Blacks. Com. 232; Cutter v. State, 36 N. J. L. 125; State v. South, 28 Id. 28; Clarks Crim. L. 262.

The result is that the judgment of conviction must be reversed.


author: Katzenbach, J.

text:
    WILLARD H. SIMMONS, PROSECUTOR, v. MAYOR AND COUNCIL OF THE BOROUGH OF WENONAH, RESPONDENTS.
    Decided September 20, 1928.
    For the prosecutor, Lynwood Lord.

    For the respondents, Oscar B. Redrow.

   The opinion of the court was delivered by

Katzenbach, J.

This matter is presented upon a rule to show cause why a writ of certiorari should not be granted to remove to this court an award of the borough of Wenonah of a contract to the Seagraves Corporation of America for supplying a fire truck and miscellaneous fire equipment. The prosecutor was connected with a company which was an unsuccessful bidder. He relies for a standing in this court upon the sole contention that he is a taxpayer of the borough of Wenonah. The borough denies that he is a taxpayer, and further, contends that the award made to the Seagraves Corporation of America was proper. The testimony taken under the rule discloses that the prosecutor is a resident of the borough of Wenonah. He took up his residence in that borough about May 1st, 1928. He owns no real estate but testified that he owned the personal property in the dwelling occupied by him. The date for assessment of property for taxes is October 1st, 1928. The prosecutor therefore has paid no taxes. He has been assessed for no taxes. If he removed from the borough prior to the assessment date it is doubtful if any claim for taxes could be made against him. A taxpayer is one who pays taxes. As the prosecutor has paid no taxes he is not, in my opinion, a taxpayer, and therefore has no standing in this court as a taxpayer to review the proceedings of which he complains. In the case of Jersey Central Power and Light Co. v. Borough of Spring Lake, 6 N. J. Mis. R. 253 (not officially reported), this court said:

“The respondents question the standing of the prosecutor to apply for a writ because the prosecutor is not the lowest bidder, and the record does not show the prosecutor to be a taxpayer. We think this point well taken. In Critchfield v. Mayor of Jersey City, 4 N. J. Mis. R. 299, this court said:
“ Upon wholly technical grounds, most of them unworthy of consideration, the prosecutor, as an unsuccessful bidder, seeks to deprive the municipality of an obviously advantageous contract. He himself on his own showing could not obtain the award and is not a party in interest. In this situation he will not be heard to prevent the making of the contract and a completion of the city’s work.’
“The cases of West Jersey Traction Co. v. Camden, 58 N. J. L. 362, and Atlantic Gas and Water Co. v. Atlantic City, 73 Id. 360, are to the same effect.
“The writ of certiorari is a discretionary writ. Proceedings to review municipal actions are not personal actions on which a prosecutor may on sharp grounds insist upon a personal right.”

For the reason that the prosecutor has failed to show that he is a taxpayer the rule to show cause heretofore allowed should be discharged.

I have, however, read the testimony submitted under the rule. It presents the usual questions which confront a municipality in the selection of fire apparatus. As we pointed out in the case of Hahn Motor Truck Corp. v. Atlantic City, 6 N. J. Mis. R. 234 (not as yet officially reported), it is impossible for a municipality to draft specifications for fire apparatus which would apply to all fire apparatus for the reason that each manufacturer makes his apparatus as a rule under patents or designs different from those of other manufacturers. It is these differences which support the claims of the superiority of apparatus made by each manufacturer over that manufactured by his competitors. A municipality has discretion, within proper limits, as to the apparatus which it will purchase. I find nothing in the testimony taken in the present case to show that the matter was not given fair and intelligent consideration by the members of the borough council. They decided to purchase the apparatus from the Seagraves Corporation of America. This I think they had a right to do, especially in view of the fact that the statute requiring competitive bidding has been held not to apply to the purchase of fire apparatus by a municipality. Hahn Motor Truck Corp. v. Atlantic City, supra.

The rule to show cause is discharged, with costs.


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    JULIUS SHARFF AND LOUIS KOPLOWITZ, PROSECUTORS, v. BOARD OF ADJUSTMENT OF THE CITY OF EAST ORANGE, DEFENDANT.
    Argued January 17, 1928
    Decided September 20, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the prosecutors, Benjamin Newman.

    For the defendant, Walter C. Bilis.

   Per Curiam.

This is a zoning case. The building inspector having refused a permit, prosecutors took an appeal to the board of adjustment. We gather from the return to the writ that that body took up the appeal in regular course, that counsel for prosecutors was heard, no one spoke in opposition, and that no evidence either pro or con was taken on the question whether the conditions were such as to make the enforcement of the ordinance unreasonable.

In Chancellor Development Co. v. Senior, 4 N. J. Mis. R. 633, followed in a number of later cases, it was said that the board of adjustment is to decide the question after hearing testimony. What it is to do if no testimony is offered is not laid down in that decision; but we apprehend that to overturn an adverse decision of the building inspector, some evidence should be proffered to show that he was wrong, and to overcome the presumption that the ordinance was reasonable in its application.

Apart from this, we have the constitutional amendment of 1927, passed since this application was made, and the act of 1928, chapter 274, in pursuance thereof. In view of this change in the law, the application, even though earlier in point of time than either, should be denied. Koplin v. South Orange, 142 Atl. Rep. 235; 6 N. J. Mis. R. 489.

The writ will therefore be dismissed.


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    THE STATE OF NEW JERSEY, EX REL. CLARENCE FREELAND, RELATOR, v. WALTER SARGEANT, BUILDING INSPECTOR OF THE TOWNSHIP OF MAPLEWOOD AND THE TOWNSHIP OF MAPLEWOOD, ESSEX COUNTY, NEW JERSEY.
    Submitted October 14, 1927
    Decided September 20, 1928.
    Before Justices Parker, Minturn and Campbell.
    For the relator, Isadore H. Colton.

    For the respondents, Samuel D. Williams.

   Per Curiam.

We conclude that there should be a judgment for respondent. The practice looking to ascertainment of the facts is faulty, for when on an alternative writ of mandamus an issue of fact is raised, the case normally calls for a trial by jury. Jones v. Guttenberg, 66 N. J. L. 665. Counsel having taken depositions and submitted them to the court for a finding of facts, we are not disposed to have the case go off on this ground, as it is controlled by broader considerations.

Eelator asks the court to compel the issue of a building permit over the prohibitions of a zoning ordinance and of a building ordinance. There are technical reasons for saying the building ordinance was not complied with; one at least is meritorious; the feature of self closing fire doors.

But apart from all this, the case is controlled in its general features by the decision of this court in Koplin v. South Orange, 142 Atl. Rep. 235; 6 N. J. Mis. R. 489, holding in substance that since the constitutional amendment of 1927 relating to zoning, and the act of 1928, chapter 274, the court will not undertake to override the powers thus conferred, even retroactively, on the municipal body.

Let judgment he entered accordingly.


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    JOHN R. HOUGHTON AND FRANK MONACO, PLAINTIFFS-RESPONDENTS, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.
    Decided September 21, 1928.
    Before Justices Kalisch, Katzenbach and Lloyd.
    For the appellant, Frederick B. Scott.

    For the respondents, John B. Breslin, Jr.

   Per Curiam.

The appellant railroad company maintained a freight house and yard and a place for public delivery of freight, from its freight cars, assigned to various individuals, at Kingsland, New Jersey. Between the tracks on which the freight cars were operated and placed for delivery of the freight to the public, there was a driveway a little more than thirty feet in width, which was provided for teams to approach the freight cars on the tracks.

The respondents owned a conveyor which they used to unload freight cars containing coal, sand, stones, gravel and ashes. The method of operating the conveyor to unload the cars was to push it under a freight car and thus place it under a pocket of a car, which pocket was then opened and the machine then operated. By this process the car was emptied in short time.

The appellant company permitted the conveyor to be brought to its premises and used there by the respondents to unload the cars. The latter had pursued the described method of unloading for more than two years with the consent of the appellant company. The appellant railroad company paid the respondents for unloading the cars, but it did not direct any particular way of unloading, that is, that it should be done by means of a conveyor or otherwise, it being conceded that the conveyor was a labor-saving device used by the respondents to save them from paying demurrage to the railroad company for holding the car under load.

There was proof in the case that the conveyor was damaged while in the driveway of the appellant’s freight yard, on the 20th of June, 1926, between nine-thirty and ten o’clock of the forenoon of that day. There was uncontroverted proof that on the day before the conveyor was damaged it had been used by respondents, who had finished work and took it out of the tracks of the appellant company, and swung it clear into the roadway, that is, about three or four feet from the railroad tracks. On the following morning one of the respondents saw the conveyor in the driveway in the same position that it was on the night before the happening of the accident, and that it was still clear of the tracks, about three and a half to four feet. Upon his return, within a half hour, he found the conveyor was turned over and smashed. It had been dragged for a distance of about twenty-five feet when it was turned over.

There was testimony that when the cars of the appellant company passed the place where the conveyor was standing, the conveyor was caught between two cars, dragged and turned over. At the time this happened the cars were being backed down the tracks.

It seems to us that from the testimony of the respondent, which was uncontroverted, that the conveyor stood a distance of three and a half to four feet from the tracks on the night before the accident, and also on the morning about a half hour before the conveyor was hit by the train, and there' being no testimony tending to show that the conveyor had been moved from the position in which respondents left it before, the accident, by someone in the appellant company’s employ, or by the appellant’s direction, the company’s liability for the injury done to the conveyor was not established.

The circumstance that the appellant company permitted the conveyor' to remain upon its premises and to be used by respondents for unloading freight cars was nothing more than a mere naked license, and devolved no duty upon appellant company to use any care concerning the conveyor, and under such circumstance it could be only held liable to respond in damages 'if it appeared that the conveyor was damaged as the result of a willful or wanton act on the part of the appellant company.

It is quite clear that the conveyor must have been moved by someone from the position in which it was left by the respondents, on the company’s property, but since the inference is equally permissible that the act which changed the position of the conveyor might have been the act of a stranger as well as of that of one in the employ of the appellant company, the respondents failed to establish the appellant’s liability.

Eor the reasons given the judgment is reversed, and a new trial ordered.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FREDERICK WILLIAM VOLLAND, PETITIONER, v. JERSEY CITY PRINTING COMPANY, RESPONDENT.
   $$$$$$$

1. That the petitioner on July 15th, 1927, while employed by the respondent as a carpenter, sustained an accident arising out of and in the course of his employment, which comes within the provisions of the Compensation act.

2. That his rate of pay was $26.40 a week, making the rate of compensation $17 a week.

3. That the respondent had notice of the accident immediately.

4. That as a resuit of the accident, petitioner was struck on the head with a block of wood nine inches long, four inches wide and two and one-half inches thick, thrown with considerable force from a circular saw, causing a laceration over his right eye and stunning him. That he was treated by Dr. Hardenberg in behalf of the respondent for the laceration over his right eye, which healed without disability so far as it was concerned, in about six days. That within a few days after the accident, he complained to Dr. Hardenberg of shortness of breath, thumping of, his heart, pains in the chest and swelling of his limbs, but was referred to his family physician for these complaints. That from all the medical evidence in the case, it appears the petitioner had a pre-existing heart disease, which was lying dormant and had not prevented him from performing his regular work for the respondent, which he had been doing over a period of eighteen years. That it is clear from the medical testimony in the case, the blow caused shock, which aggravated the pre-existing heart condition, and the doctors for both the petitioner and the respondent practically agree the man is now totally disabled. I find that the pre-existing heart condition which was lying dormant incapacitated peti-. tioner to the extent of seventy-five per cent., and that he is now totally disabled, so that he is entitled to twenty-five per cent, total permanent disability as a result of the accident.

5. The petitioner having returned to work for a short period of time after August 22d, 1927, I believe that the temporary disability should not extend beyond August 22d, which would be four and three-sevenths weeks, after deducting the waiting period of one week.

6. Dr. McLean, who treated the petitioner, rendered a bill for his services in the amount of $38, and testified at the trial as an expert, for which service he charged $25, and that, in my opinion, is reasonable. Dr. Arlitz examined the petitioner on January'10th, 1928, and testified as an expert, for which he stated his charge would be $35, and in my opinion that is reasonable.

7. The respondent having refused to pay more than the temporary disability in this case, and it appearing after a trial that the petitioner was entitled to a percentage of total permanent disability, a counsel fee of $250 chargeable against the respondent should be allowed, as well as the stenographic fees in the amount of $10.

?{c H* ❖ ❖ i'fi #

Charles E. Corbin, Deputy Commissioner.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JACK LUOMA, PETITIONER, v. TURNER CONSTRUCTION COMPANY, RESPONDENT.
   $ * *

1. On or about the 20th day of November, 1924, the party of the first part, Jack Luoma, was employed by Turner Construction Company as a carpenter at Kearny, New Jersey, and on or about the day in question, the party of the first part, while closing up column forms, fell to the floor below when his hands slipped and he lost his grip. Said accident arose out of and in the course of the employment of the party of the first part by the party of the second part.

2. The party of the first part claims that as a result of the alleged accident, he received an injury to his left chest wall, his left arm and the left side of his head; that he was taken to a hospital for first aid, after which he was taken to his home in Brooklyn, and that he has suffered continually since the accident from sleeplessness, pain in his left side, pain in his heart, nervousness, dizzyness, poor memory, and that he has been unable since the accident to do the work which he was able to do prior to that time.

3. It is contended by the doctors representing the petitioner that as a result of the accident, the party of the first part is in a condition so that he is conspicuously confused, unstable, disorientated, irritable, excitable and amnesia, and it was stated by the doctors representing him that his disability was equal to from seventy-five per cent, to one hundred per cent, of total.

4. It is contended by the party of the second part that at the time of the happening of the accident, the party of the first part did not sustain any appreciable injury to his head and that all of the injuries to the petitioner were of such a nature that he should not have been caused anything more than a very slight permanent disability; that he has been examined by various doctors for the party of the second part, and that it is the opinion of said doctors that his condition is not as contended; that there are no external manifestations of injury of the skull; that the pupils react to light and accommodation; that he does have a type of hysteria at times and it was the opinion of the doctors for the party of the second part that this is a mental state brought about by his thought of his injury, and repeated examinations by doctors, rather than being produced by injuries resulting from the accident. It is contended by the party of the second part that the symptoms manifested by the party of the first part are Exaggerated.

5. This case formerly came before the compensation bureau by petition filed on or about June 17th, 1925, as a result of which a stipulation and order of discontinuance was entered .into and approved by this bureau on November 20th, 1925, by which the party of the second part agreed to pay and the petitioner agreed to accept one hundred weeks’ compensation at the rate of $17 per week, which compensation has been paid together with a fee to the attorney for the peti- ' tioner in the sum of $150.

6. The party of the first part and the party of the second part at this time desiring to effect a compromise as to the disability of the party of the first part, but differing as to the extent of the total, do hereby agree that the party of the first part shall receive and the party of the second part shall pay an additional twenty-five per cent, of total, or one hundred and twenty-five weeks at $17 per week, to the party of the first part, petitioner, in addition to the twenty per cent, or one hundred weeks heretofore paid.

7. It is expressly understood and agreed that the acceptance of this additional sum of $2,125 is in full accord and satisfaction of and in compromise of a disputed claim and that payment of this sum is not an admission of further liability upon the party of the second part, but that this sum is paid for the purpose of terminating a dispute and further litigation between the parties hereto.

8. It is further stipulated and agreed that the attornej1, for the petitioner shall receive a counsel fee of $400, of which $200 is to be paid by the party of the second part, respondent, and that the respondent is to pay an additional sum of $100 to the doctors for the petitioner.

9. The petitioner covenants not to move to open up this agreement or start any other suit subsequent to the signing hereof upon any ground whatsoever.

10. It is further agreed that the above proceeding be discontinued upon the records of this bureau.

Jack Luoma,

Petitioner.

United States Fidelity and Guaranty Company, By Roy A. Granger,

Respondent.

The settlement referred to in the foregoing stipulation is hereby approved as a final compromise of the extent of the physical injuries sustained by.the petitioner, Jack Luoma, and it is ordered that the proceedings on this petition be and hereby are discontinued.

Charles E. Corbin, Deputy Commissioner.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARY JURAS, PETITIONER, v. EASTERN BUILDERS COMPANY, INCORPORATED, RESPONDENT.
    For the petitioner, Samuel Press.

    For the respondent, Raymond E. Taylor.

   # * #

1. That Matthew Juras, the deceased, was on the 13th day of April, 1927, in the employ of Eastern Builders Company, Incorporated, which employment was subject to the compensation section of chapter 95, laws of New Jersey, 1911, and supplements thereto.

2. That on the above-mentioned date, Matthew Juras, deceased, met with an accident arising out of and in the course of the said employment.

3. That the respondent herein had knowledge of said accident within the time prescribed by law.

4. That on the 13th day of April, 1927, Matthew Juras, deceased, was working as a mason’s helper, carrying bricks to the masons, when he tripped over something, fell off the plank on which he was walking, falling a distance of five to eight feet, and striking the back of his head against a large stone, injuring his head, body and hand. He was picked up in a dazed condition by two fellow-workmen, placed in a motor truck, and taken by them to the Irvington General Hospital, where he was given emergency treatment for the head wound, and taken again by his fellow-workmen back to the job, where the injured man’s clothing were picked up, put upon the truck, where he, the injured man was, and from there assisted to his home, and upon reaching there, put to bed. During the entire trip from the place of injury to the hospital, back to the place where he was working and to his home, he was assisted by two men. The deceased was absolutely in a helpless condition, semi-conscious, dazed and “dopey,” as the hospital doctor characterized it. The accident occurred towards the close of the day’s work, between four-thirty and four-forty-five o’clock. From that time on, deceased did not ‘return to work. He went into a steady decline, death taking place at the Newark City Hospital, April 26th, following the accident. An autopsy performed upon the deceased disclosed pneumococcus meningitis, laceration and hematoma of scalp. It was the opinion of the medical examiner making the autopsy that death was produced and caused by the injury sustained by decedent April 13th, 1927. There was other testimony both from the family and fellow-workmen to the effect that up to the time of the accident, the decedent was quite well, and it is significant that he had never lost any time from illness, and for many years had not required the services of a physician.

From all the testimony in the case the finding is justified that death in this case was in fact the result of the injury sustained April 13th, 1927, and was by accident within the meaning of the Workmen’s Compensation act. And I so find.

5. That as a result of said accident, Matthew Juras died April 26th, 1927.

6. That decedent was forty-seven years of age, and left him surviving his widow, Mary, born February 27th, 1888, and the following children: John, born November 20th, 1905; Mary, born September 3d, 1908; Susan, born September 14th, 1910; Mildred, born January 23d, 1912; Matthew, born January 23d, 1914, and Peter, born June 29th, 1920.

7. That the wages of the decedent were at the time of the accident $46.75 per week.

8. That the petitioner expended the sum of $8 for medical treatment for deceased, besides funeral expenses in an amount above $150.

9’. That to provide the necessary medical testimony in and about the proof of her claim for compensation; petitioner is entitled to be paid the sum of $150 by respondent, said expense having been incurred by petitioner.

10. That the said survivors of Matthew Juras as set forth in paragraph 6, namely, Mary Juras, widow, and children under sixteen years of age, as follows: Mildred, Matthew and Peter, were entirely dependent for support upon deceased, and were dependents within the meaning of the Workmen’s Compensation act, and amendments thereto, and that deceased contributed his entire earnings to the support of his family, who were actually a part of his household at the time of his death.

11. That the said Mary Juras, Mildred, Matthew .and Peter are entitled to compensation in the sum of $17 per week from the 26th day of April, 1927, and for a period of three hundred weeks thereafter, being a sum of $5,100, at which time the remaining dependent under sixteen years of age will be the son Peter Juras.

12. That at and after said period of three hundred weeks, the said Peter Juras shall be paid compensation at the rate of thirty-five percentum of the wages of the decedent, $46.75 per week, or $16.36 per week, and for a period of one hundred and eighty weeks, or a sum of $2,944.80, at the end of which time the dependency of the said Peter Juras stops.

That all compensation payments to be made as ordered shall be paid to Mary Juras, widow of deceased, and mother of the aforementioned children, on behalf of herself and dependents.

13. That Samuel Press, attorney for the above-named petitioner, be allowed a fee of $500, $250 by petitioner; $250 to be paid by respondent, it appearing that petitioner was forced to file a formal petition for compensation in the within stated - cause, due to the refusal of the respondent to pay compensation to the dependents of deceased upon request by them so to do.

14. Petitioner is entitled to costs in this proceeding in the sum of $10, being petitioner’s half of the stenographer’s fees.

iji % ifc i'fi & #

Harry J. Goas, Deputy Commissioner.


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    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    CATHERINE BORHOFEN, PETITIONER, v. PUBLIC SERVICE RAILWAY COMPANY, RESPONDENT.
    For the petitioner, Alexander Simpson.

    For the respondent, Henry J. Sorenson.

   ❖ # ❖ * * * *

On October 26th, 1926, Catherine Borhofen was the legal wife of John Borhofen and their residence was at 160 Huber street, Seeaucus, New Jersey; that at that time, John Borhofen was regularly employed by the respondent as a day fireman in the boiler room of the Union City shops. The said shops are located in Union City and run from Twenty-seventh street to Twenty-eighth street and from Bergenline avenue to Palisade avenue, taking in an entire block. On October 26th, 1926, the decedent left his home in Seeaueus for the said Union City shops at six-fifteen in the morning. At the time he left, he carried with him a lunch box and a pass, which entitled him to free transportation to his work; that at the time he left his home that morning he was in good physical health and the petitioner expected him home from his work at six-thirty or six-forty in the evening, which time was the usual time for his home-coming. The decedent did not return to his home that evening, and the petitioner did not see him until the following morning, at which time he was a patient in the North Hudson Hospital, where he died on October 28th, 1926, two days after the alleged accident.

Mr. Strohmeier was called by the petitioner and he testified that he, Strohmeier, was the general foreman of the Union City shops and that John Borhofen was a low-pressure fireman, assigned to the day shift. The hours for the day shift were from six in the morning until six in the evening and the working week consisted of seven days. He further testified that Borhofen did not do any overtime work, nor had he been assigned to do any overtime work on October 26th, 1926. Continuing on in his testimony, he stated that it was one of his duties to cheek the time of the men who worked under him, and that on October 26th, 1926, Borhofen ceased work at six o’clock and had the clock punched “out” at that time.

The next witness called by the petitioner was Joseph McCoy, an operator of a public service trolley car, who, on October 26th, 1926, was operating a Summit line car in Union City. He testified that on the evening of October 26th, 1926, he had brought his trolley car to a dead stop at Summit avenue and Thirty-second street, Union City, New Jersey, and while at a dead stop, a police officer escorted the decedent to the front steps and front platform of the trolley car. This officer helped the decedent to board the trolley. He not only escorted him to the front steps and the platform of the car, but also entered the car with the man and helped him to a seat, which was on the right-hand side of the trolley car.

After having escorted the man to his seat, the police officer left the car, but before leaving informed the operator that the decedent wanted to get off at the transfer station, which is at Sixth street and Paterson Plank road, Union City, New Jersey. The operator testified that on the way down to the transfer station the decedent was sitting in a slouched position, resting his head in his hands, and his elbows on his knees. When the trolley car reached the transfer station, some pasengers left the trolley and the operator turned to the decedent, tó inform him that he was at his stop. The decedent then got up and staggered to the platform, mumbling inquiries as to where to get the Passaic car. Suddenly, the decedent reeled off the platform and as he was falling from the platform to the street, twisted completely around so that he fell on his back and his head. At this time, the trolley car was still at a dead .stop. From the time when this decedent was placed on the trolley car by the police officer until the time he left the car there had been no coupon or fare of any character paid to the operator, and the practice of the payment of fare on that line was to “pay as you enter.” The operator immediately left the trolley car to render whatever aid he could to the man, who now seemed to be unconscious. He called an officer, who immediately summoned the ambulance and the man was then taken to the North Hudson Hospital. The operator further testified that at the time the man was reeling off the front platform, the man’s lunch box was thrown into the street, and on striking the pavement, was forced open and the contents thrown out, among which was a pass which appeared to have been given by the Public Service Railway Company. The operator, on seeing this, endeavored to identify the man, but the ticket being soiled, he was unable to make the identification. This was the first time that the operator knew that the decedent was an employe of the respondent.

Operator McCoy, when asked whether or not the man was drunk or sober, testified that the man was drunk and his testimony was based xrpon the fact that the man was placed upon the trolley car in a helpless condition, and from the odors which were emanating from this man as he was put upon the trolley car and further from the conduct of the man while he was on the trolley ear and from his general appearance.

Officer Frosch, who was connected with the Union City police force on the date of this occurrence, was called by the petitioner and he testified that he was called upon the scene of this occurrence after it had happened; that he found this man lying in the street with no wounds upon the man’s head, nor was there any bleeding of any character; that it was about nine o’clock in the evening when he was called and the time when the decedent reached the hospital was approximately ten minutes after nine. This latter time he was certain of, because when he reached the hospital he took out his watch and noted the time.

The respondent, in proof of it’s contention that the proximate cause of the man’s accident and injuries was intoxication, produced Officer Theodore Haberman, Jr., who is connected with the Union City police force. Officer Haberman was the man who had helped the decedent to board the trolley car. He testified that at about eight-twenty in the evening on October 26h, 1926, while he was on his post, he observed two men who appeared to be staggering and reeling against a large plate glass window which was located in a store between Thirty-first and Thirty-second streets. Fearing that these two men, on account of their condition, might lean too heavily against this window and thereby break it, walked over to them and made inquiries as to where they were going. At the time, he observed that one was a comparatively short man and the other somewhat taller. The taller man was staggering and speechless. He had his hat pulled down over his eyes and he was dressed in a dark suit, which appeared to be his working clothes. Of the two men, the taller one was the more helpless, and therefore the police officer learned from the shorter man that the other’s destination was Secaucus. Upon securing this information, the officer then took the taller man by the arm and walked him from the middle of Thirty-first and Thirty-second streets to the corner of Thirty-second street and Summit avenue. The short man departed and walked in the general direction of Thirty-first street. The officer and the taller man, who was later identified as the decedent in this case, remained on that corner for approximately ten minutes, during which time the officer aided and helped the decedent to remain upon his feet.

At the approach of the car, he escorted the decedent catecornered across the intersection, and while the trolley car was at a stop, aided the man to board the car. In getting on the car, the officer testified that Borhofen first grabbed hold of the two iron bars which were at the side of the door and then placed his feet upon the step and the officer pushed him upon the step and upon the platform. Then the officer also boarded and took hold of the man’s arm and escorted him to his seat. As the man was being seated the officer noticed, while the man’s face was upturned, that his eyes were half closed and sleepy.

The officer, when asked the question whether or not, in his opinion, the man was drunk or sober, answered that the man was drunk. His opinion, as to the man’s condition, was based upon the fact that he found him in a helpless condition on Summit avenue, and upon the fact that because of this condition he had to be aided to the trolley car and then up on the car, and finally escorted into his seat. He further drew his opinion from the general appearance of the man and from the odors which were emanating from his person.

The respondent further produced Anthony Bonamico, who stated that he boarded a Summit avenue car on the evening in question at Twenty-first street and Summit avenue, at approximately nine o’clock in the evening. As he walked back to a seat which he had selected, the decedent, who had been resting his head in his hands and his elbows upon his knees, lurched a little forward and rubbed against his leg. He then continued on until he reached the seat which he had selected, which was a little further back in the car and on the opposite side Horn that which the decedent was seated. He testified that the man wore a dark suit, which appeared to be his working clothes, and from the slouched-down posture of the decedent and from his general appearance and the mutterings and groans which he was uttering, he was of the opinion that the man was drunk. Continuing his testimony, he stated that when the trolley car stopped at the transfer station, which is on Paterson Plank road and Sixth avenue, Union City, New Jersey, he noticed the trolley make a dead stop. While it was at this stop the decedent left his seat and walked out on the platform. Immediately thereafter, he next saw the decedent lying out in the street and also noticed an officer, who was attempting to aid the man. He further testified that from the time the man left his seat until he saw him out in the street, the trolley car was at a dead stop.

Erom the testimony of the disinterested witnesses, one of which was a police officer and the other a passenger on the trolley car, and from the admission of the petitioner’s own witness, McCoy, I find that the facts clearly show that the proximate and sole cause of the man’s accident was intoxication, and I further find that the respondent has fully met the burden which is cast upon it to prove that this condition was the cause of the man’s accident.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    BETTY JANECEK, PETITIONER, v. AMERICAN CABLE COMPANY, RESPONDENT.
    For the petitioner, McTague & McCarthy.

    For the respondent, Lindabury, Depue & Faulks.

   ❖ ❖

I do find and determine as follows:

1. The petitioner’s decedent, Andrew Janeeek, on September 10th, 1927, was in the employ of respondent at a weekly wage of $27.50.

2. On that date the petitioner’s decedent, Andrew Janecek, suffered a slight electric shock at seven A. m., which shock did not disable him in any way; he continued working steadily without complaint until twelve M., at which time the plant closed for the day. He went to his home and at about five o’clock in the afternoon he became ill. Dr. L. O. Bassett was called, and called again the following day when the deceased appeared to be coming out of a seizure and he advised the removal of Janecek to the Middlesex County Hospital. He was taken to the hospital that day and died there on September 12th, 1927, from chronic nephritis. While the testimony of Dr. Bassett, on behalf of the petitioner, was in some instances favorable to petitioner, he stated on cross-examination that he could not definitely say that there was any connection between the electric shock and the nephritis condition from which Janecek died. Dr. Christopher C. Beling, Dr. John W. Gray and Dr. C. B. Lufbouer, men of long experience and high standing in the medical profession, and two of whom have had considerable experience in cases involving electric shock, testified that the illness from which Janecek died could neither have been caused nor aggravated by the electric shock which he received while in the respondent’s employ, and that there was no connection whatever between the electric shock suffered by deceased and the cause of his death.

Prom the evidence adduced I find that the death of Andrew Janecek was not caused by an accident arising out of and in the course of his employment by the respondent, and that any plrysical condition from which he may have been suffering prior to the time of the accident was in no way aggravated by the accident alleged.

*******

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN KERSEY, PETITIONER, v. THE BABCOCK & WILCOX COMPANY, RESPONDENT.
   The petitioner herein having duly filed his petition alleging that on April 2d, 1925, he was in the employ of the respondent at the city of Bayonne, New Jersey, and that in the course of his employment, while helping to repair a drill press, he was struck in the chest by a part of the machinery, causing injury to his chest and other parts of his body, for which he asks compensation; and the respondent having duly filed its answer in which it sets up the defense that the petitioner has completely recovered from the injuries received growing out of the accident and has been compensated for all temporary disability.

After careful examination of the testimony and other proofs in the case and briefs submitted by counsel of the parties respectively, I find that the petitioner has been duly compensated for the disabilities he suffered as a result of said accident while in the employ of the above-named respondent on April 2d, 1925.

I further find that the disease from which the petitioner is now said to be suffering is not the result of said accident, nor has it been aggravated by the accident. I find from the evidence that when the petitioner returned to his work he performed his work with the same degree of. skill and ability as before the accident, and that the physicians who testified for the petitioner rested their opinion upon an incorrect hypothesis that the petitioner was unable to perform his duties of emplojonent after the accident the same as he had done before.

I find from the evidence that any disability from which the petitioner is now suffering is the result of the normal progress of the disease with which he became inflicted many years ago, and that the accident, with its temporary resultant injuries, has no relation as a contributing or aggravating feature to his present condition.

Under the Workmen’s Compensation act the burden is on the petitioner to prove his case.

Prom the evidence submitted I find and determine that the petitioner has failed to sustain the burden of proof as required by the act, and that, therefore, claimant’s petition should be dismissed. I therefore hereby do order that the petition of claimant be dismissed and render judgment in favor of the respondent.

Charles E. Corbin, Deputy Commissioner.


author: W. E. Stubbs, Deputy Commissioner.

text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    RUSSELL A. WIM, PETITIONER, v. LAMBERTVILLE STONE QUARRY COMPANY, RESPONDENT.
    For the petitioner, Charles A. Malloy.

    For the respondent, Richard W. Baker.

   At the end of the case the attorney for the petitioner asked permission to submit a memorandum of law and was given permission to do so, and the attorney for the respondent was requested to answer the same when received.

At the trial of the case the petitioner testified in his own behalf and Mr. Ireland, one of, the officers of the respondent, also testified in regard to the uses of the wharf alongside of the canal. The facts in the case seem to be clear that the petitioner parked his ear on a wharf formerly used by the respondent and the timber of which was owned by the respondent, but which has been for some time in disuse and was on property belonging to the canal company directly opposite and across the road from the property of the respondent. The petitioner’s work in the quarry consisted of going from the quarry to the blacksmith shop with drills, and back to the quarry. The blacksmith shop was adjacent to the road about opposite to where the petitioner’s car was parked. A fellow-employe asked the petitioner for a cigarette and he found that he had left them in his car, and so in order to give his fellow-employe a cigarette and also to'get one for himself, he crossed the road to his car, procured the cigarettes, and while on his way back to the blacksmith shop and while crossing the highway, was struck by an automobile and injured. The only question under controversy in the case is as to whether under these circumstances the injury by accident suffered by the petitioner arose out of and in the course of his employment with the respondent, it being stipulated and agreed that the wages of the petitioner wrere $27 per week, and it being further stipulated that the question of the amount of temporary and permanent disability would be gone into at a later time if it wrere decided that the accident arose out of and in the course of his employment.

OPINION.

A scrutiny of the facts presented in this case discloses two questions, for consideration, both of which are fundamental elements of the New Jersey Compensation statute. The laws of some of our sister states grant compensation for any accident occurring in the course of employment. The New Jersey act includes an additional qualification. The accident must arise out of the employment. The application of these two rules has been the cause of endless argument. Counsel for petitioner in this case cites numerous decisions of courts of appeal, substantiating his contention that the case at bar comes within these two requirements. Counsel for the respondent quotes an equal number of such decisions upholding the contrary conclusion. I find myself unable to concur wholly with either one or the other of these sets of rulings. Most of them do not analyze the situation far enough. Claims have been dismissed on the ground that the injury resulted by virtue of a hazard common to the community, and not peculiar to the particular industry; for instance, the hazard of the street, the risk of being struck by lightning or the danger of being in a tram crash or shipwreck. The nature of the hazard is not the criterion. We must go behind that to the authority responsible for the exposure.

If a person is on the street of his own volition, and is struck by a speeding car, or by lightning (little difference in these days of reckless driving), there is no one to whom he can transfer the responsibility for his assumption of such risk; however, it is an entirely different matter if the conditions of his employment, or the orders of his employer, necessitate his being exposed to the above hazards. The authority behind the exposure must be held responsible. Every risk thus experienced becomes a hazard of the occupation.

In the case at bar, the petitioner is entitled to the benefits of the Compensation act if he was on the public highway by virtue of any of the conditions of his work, or because of the exercise of the authority of the master; otherwise, he is not so protected. It appears from the testimony that the exposure responsible for his injury was the result of a desire on his part to satisfy a craving, endangered by an acquired habit, in no way whatsoever related to his work. That an employer may see fit not to object to such indulgence does not grant the employe the privilege of enlarging and extending the normal hazards of the occupation in order to accomplish that end.

In view of the foregoing it seems unnecessary to consider whether or not this accident occurred in the course of the petitioner’s employment.

Therefore, it not having been shown that this accident arose out of the petitioner’s employment, the petition must be and is herewith dismissed.

W. E. Stubbs, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    COLUMBUS EARLY, PETITIONER, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, RESPONDENT.
   It appearing that this matter came on for hearing under the Workmen’s Compensation statute before me as deputy commissioner' at Elizabeth, New Jersey, on Tuesday the 14th day of February, 1928, and that the respective parties have agreed to a compromise settlement and after hearing the evidence and stipulation as follows :

Whereas, the petitioner met with an accident arising out of and in the course of his employment by the respondent on the 11th day of March, 1927, when an angle bar fell upon his back and caused him to be injured; and

Whereas, Dr. William J. Arlitz and Dr. Walter F. Phelan, physicians for the respondent, and Dr. Andrew C. Ruoff and Dr. Leon Ward, physicians for the petitioner, have agreed that the petitioner is suffering a permanent disability to the extent'of twenty-five per cent, of partial, total, body disability amounting to one hundred and twenty-five weeks at the compensation rate of $15.25 per week, and that the petitioner is entitled to temporary disability from date of accident until present date hereof at the same compensation rate, the amount of $106.20 previously paid by the respondent on account of said temporary disability is to be credited as paid thereon. It being further agreed that the amount of permanent disability above set forth is arrived at as a fair compromise in view of the fact that there is doubt as to the causation of the symptomotology in this case and that this award is a final' compromise and settlement of this case; and,

Whereas, the respondent, in view of the numerous conferences and the hearings had in this matter, agree to pay $300 towards payment of attorney’s fee of $400 to the attorney for petitioner, together with medical expert fees of $75 for Dr. Ruoff and Dr. Ward, in addition to expense of X-rays.

It is therefore ordered that the respondent pay the petitioner compensation for temporary disability from date of accident, March 11th, 1927, to February 14th, 1928, at the weekly rate of $15.25 per week and permanent disability compensation for one hundred and twenty-five weeks at the same compensation rate. Credit is to be allowed the respondent for tlie previous payment of $106.20 paid on account of temporary disability compensation herein.

The attorney for petitioner is allowed counsel fee of $400 as above noted. Respondent to pay expenses for medical expert fees and X-rajrs as above set forth.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FREDERICK SHAW, PETITIONER, v. R. A. PHILLIPS & COMPANY, RESPONDENT.
   A formal 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 Camden on February 27th, 1928, the petitioner being represented by Attorney Walter S. Keown and the respondent by Attorney Richard W. Baker.

The petitioner testified in his own behalf and also called to testify his mother, Mrs. Havens, and Dr. Ross. At the end of the petitioner’s case the attorney for the respondent moved that the case be dismissed on the grounds that the petitioner had failed to prove conclusively the five points of the hernia section of the Compensation law. The attorney for the respondent argued that the petitioner had failed to bring any proof at all that the descent of the hernia immediately followed the cause, and further that he had failed to show that there was such prostration that the petitioner was compelled to stop work immediately, as according to the petitioner’s own testimony, he stopped work and sat down for half an hour and then drove his team for the balance of the day until the regular quitting time at four-thirty.

After reviewing the testimony in this case I find that the petitioner has failed to prove conclusively the five points of the hernia section of the Compensation law as he has failed to show that the descent of the hernia immediately followed the cause, and that there was such prostration that he was forced to cease work immediately, and accordingly the motion of the attorney for the respondent was granted.

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

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    GEORGE BORSCH, PETITIONER, v. JOHN ROEBLING’S SONS COMPANY, RESPONDENT.
    For the petitioner, Gabriel Garber.

    For the respondent, George W. Macpherson.

   t]i }£ #

I do find and determine from the evidence that no notice of the injury of October 20th, 1926, was given to the respondent, John Roebling’s Sons Company, by the petitioner, George Borsch, or by anyone in.his behalf, within ninety days of the occurrence of the said injury, nor was knowledge obtained by the respondent of the said injury within ninety days of the occurrence of the same. Paragraph 15, section 2, Workmen’s Compensation act (chapter 95, laws 1911), provides that “unless knowledge be obtained, or notice given, within ninety days after the occurrence of the injury, no compensation shall be allowed.” Paragraph 16, same section, &e., prescribes the requisites of said notice, particularly as to its written form and service of notice. There is nothing in the evidence, however, which purports to show that a written notice of injury was served upon the respondent or any of its agents at any time. A mere telephonic notification to an employer by an employe or by a member of his family, stating that the employe is ill and unable to come to work, no mention being made as to an injury by traumatism, does not satisfy the compliance of the statute as to notice. The petitioner’s testimony wherein it appears that the petitioner complained to several superiors on different occasions about being ill and about pain in the arm, falls short of statutory notice. In Osborne v. Warren Foundry, &c., 40 N. J. L. J. 182, where three superiors of a workman denied the injured’s statement of his-having told them of an injury and no written notice was served, a claim was disallowed for lack of notice. The case now under consideration is exactly in point.

The petitioner having failed to establish his right to compensation, it is therefore ordered that the petition in this cause be'and the same is hereby dismissed, without costs to either party.

John J. Stahl, Referee.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JENNIE NIGRO, PETITIONER, v. ESSEX SPECIALTY COMPANY, RESPONDENT.
    For the petitioner, Jacob R. Mantel.

    For the respondent, Richard W. Baker.

   íjí # $ í|i Hí

It was stipulated and agreed that the petitioner suffered an injury by accident arising out of and in the course of her employment with the respondent on April 5th, 1927; that the wages received were $12 per week, and that the only thing to dispute in this case was the extent of permanent disability of the right hand.

The petitioner testified on her own behalf and also called to testify Mrs. DeYoung and Dr. Dietrich and Dr. Silver-stein, and on behalf of the respondent, Dr. Avidan and .Dr. Ruoff were called to testify. Although the doctors for the petitioner gave as their opinion that there was a disability of twenty-five to thirty per cent, of permanent loss of use of the right arm, they admitted that they had had very little experience in estimating disability percentages under the terms of the Compensation law. On the other hand, respondent’s Dr. Ruoff had estimated the disability in numerous cases and Dr. Avidan had examined the petitioner on behalf of the state compensation board at the informal hearing, and their estimate was a five per cent, loss of use of the right hand. After personally examining and testing the grip of the right hand of the petitioner I have come to the conclusion that the estimate made by the doctors for the respondent is correct, and therefore I find that the petitioner is suffering from a permanent disability of five per cent, loss of use of the right hand, entitling the petitioner to seven and one-half weeks’ compensation at the rate of ,$8 per week, all of which has already been paid by the respondent.

Accordingly, I hereby order that the respondent pay to the petitioner seven and one-half weeks’ compensation for permanent disability to the right hand at the rate of $8 per week, based on five per cent, permanent loss of use of the right hand, all of which has already been paid by the respondent. I further order that no costs or counsel fee be affixed against either party.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH BLONDIN, PETITIONER, v. STANDARD SILK DYEING COMPANY, RESPONDENT.
    For the petitioner, A. Lawrie Young.

    For the respondent, Richard W. Baker.

   ^ * iji ❖ ❖ #

On behalf of the petitioner, Dr. Materazzi and Mr. DiMail were called to testify and the petitioner testified in his own behalf. At the end of the petitioner’s case the attorney for the respondent moved that the case be dismissed on the grounds that the petitioner had failed to prove conclusively the five points of the hernia section of the Compensation law.

After carefully reviewing the testimony I find that the hernia was so slight that there was no conclusive proof that the descent of the hernia immediately followed the cause and further that there was no conclusive proof that the attention of a licensed physician was necessary within twenty-four hours. Further, the petitioner, from his own testimony, failed to show such prostration that he was forced to -cease work immediately, as he testified that- he worked the balance of the night. I therefore find that the petitioner failed to prove that he suffered a compensible hernia, and the motion of the respondent was thereby granted.

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

Harry J. Goas, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALBERT FRANCIONE, PETITIONER, v. RALPH MAZZONI, RESPONDENT.
    For the petitioner, James J. Kearney.

    For the respondent, John A. Laird, of Heine, Bradner & Laird.

   t\i *

1. On or about July lGth, 1927, the day alleged as being the date of the accident, the petitioner was doing certain work for the respondent, in the laying of certain curb stones, and petitioner was to be paid at the rate of $13 per foot for the curbing so laid.

2. That on or about said date, the petitioner had engaged several other men to work with him on said job, and the gross amount received from the respondent was divided between the petitioner and the men so engaged by him.

3. I do further find as a fact from the evidence produced before me that the respondent exercised no supervision over the petitioner, or the men engaged by him, other than to check up on the final results of their work, and I do further find as a fact from the evidence that the petitioner, upon the date of the alleged accident, was not an employe and consequently did not suffer an accident arising out of and in the course of any employment with respondent, but I do find, on the other hand, that the petitioner on said date was an independent contractor, and, accordingly, I do order that the petition filed in the above-entitled cause be and the same hereby is dismissed.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOHN POLLARD, PETITIONER, v. CAMDEN TERMINAL COMPANY, A CORPORATION, RESPONDENT.
   # # :{: # % íJí }ji

1. That at the time of the accident suffered by the claimant in the aforesaid case, the said claimant, John Pollard, was engaged in working upon a certain vessel then moored alongside of the municipal pier in the city of Camden, which projected into the waters of the said Delaware river.

2. That the vessel upon which the claimant was injured was in and upon the navigable waters of the said river of Delaware.

In consideration of the fact that the accident giving rise to the petitioner’s claim was sustained in and upon a vessel then located in the navigable waters of' the United States, the deputy commissioner finds that he does not have jurisdiction to award compensation under the Workmen’s Compensation act of the State of New Jersey.

I therefore find and direct that the said petition be dismissed for the reasons above set forth.

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ALBERT M. KRAUSS, PETITIONER, v. JOSEPH T. RYERSON & COMPANY, RESPONDENT.
    For the petitioner, Edwards & Smith.

    For the respondent, Andrew O. Wittreich.

   & & ij-t i|: $ ij; jJj

3. The petitioner, Albert M. Krauss, testified that on October 19th, 1927, he was employed by the respondent. He alleged and testified that while lifting a beam, which he was painting, he felt a pain in his right groin, whereupon he dropped the beam. He then told Mr. O’Connor, his foreman, that while lifting the beam he had injured himself, and that he was going home. This was at eleven o’clock in the morning. However, he stayed until twelve o’clock. He further testified that he was visited by a Dr. Joseph S. MeDede the following day.

4. Dr. Joseph S. MeDede then testified • that he was a registered and licensed physician, and had treated the petitioner for a congestion of the right scrotum on October 30th, 1927.

5. This was the petitioner’s case.

6. In response to the petitioner’s Maim, the respondent produced Mr. W. Snyder, head of the operating department of the Joseph T. Ryerson & Company, the respondent, who testified that in response to a letter sent by the petitioner on October 20th, 1927, he, in company with Mr. O’Connor, the foreman of the petitioner, visited the petitioner at his home. There they found him in bed with a hot water bottle applied to his stomach. Mr. Snyder further testified that during their conversation with the petitioner, the petitioner stated that he was sorry he could not be to work because of some illness in his family, and that he was suffering from a recurrence of pains in the stomach, which resulted from an accident to himself in a steel plant at Pittsburgh some years before. He also testified that the petitioner returned to his work a few days later, but was discharged after a quarrel with the foreman.

7. Mr. E. O’Connor, the petitioner’s foreman, then testified, on behalf of the respondent, that the petitioner had come to him at noon, during the lunch hour, on the alleged date of the accident, and requested that he be allowed to go to his home because of the illness of his wife and daughter; that at no time did he mention that he had been injured while in the course of his employment the morning of that day. Mr. O’Connor also corroborated Mr. Snyder’s statements to the effect that the petitioner had told them, when they visited him at his home, that he was suffering from a recurrence of pains in the stomach, caused by an accident which had happened some years before.

8. This was the respondent’s case.

9. It appears to me that the petitioner’s story does not ring true, and I doubt the story which he told as to the happening of the accident that he was injured at his employment on October 19th, 1927. I believe the stories told by him are merely figments of his own imagination, and it is only an effort to cause trouble to his former employer because of his having been discharged.

H: ❖ # >:«

Charles E. Corbin, Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    VINCENZO CIOFFE (DECEASED), EMILIA BATTAGLINO, PETITIONER, v. LYONS PIECE DYE WORKS, RESPONDENT.
   Issue in the above-entitled action was regularly joined by the serving and filing of defendant’s claim petition and respondent’s answer thereto. Thereafter, by notice of hearing, from the state department of labor, the case was placed upon the calendar at 15 Church street, Paterson, New Jersey, for a hearing on November 19th, 1925. That prior to that date the case was adjourned, and again was noticed for hearing for August 5th, 1926, when a further adjournment was had, and that the ease next appeared upon the calendar November 3d, 1927, and thereafter was adjourned from time to time. That on January 19th, 1928, the case again appeared upon the calendar, at which time the claimants were represented by Isadore Eabinowitz, Esquire, and the respondent by J. Stewart Crawford, Esquire.

That at a hearing, November 17th, 1927, motion was made by respondent to dismiss the petition on the ground that the petitioners had failed to prosecute their claim for a period in excess of one year. Decision was reserved on the motion made.

That on January 19th, 1928, testimony was taken on behalf of the dependents to show that the death of the deceased was due to the injury received on or about December 18th, 1924.

Eespondent’s motion of November 17th, 1927, was again renewed and motion further made to dismiss the petition on the ground that the death of the deceased was not the result of an accident which arose out of or in the course of his employment.

Now, on motion of J. Stewart Crawford, Esquire, attorney for the respondent, it is hereby ordered that the defendant’s claim petition herein be dismissed on the grounds that—

(1) The dependents failed to prosecute their action for a period in excess of one year and

(2) It is found that death of the deceased was not a result of the injury received December 18th, 1924.

It is further ordered that this order of dismissal be duly entered upon records of the department of labor, workmen’s compensation bureau, for the State of New Jersey.

Harry J. Goas, Deputy Commissioner.


author: Ackerson, S. C. C.

text:
    ERNEST SCHWALM, PLAINTIFF, v. PUBLIC SERVICE TRANSPORTATION COMPANY AND DUDLEY PARK, DEFENDANTS.
   Ackerson, S. C. C.

Defendant has asked for a bill of particulars and the questions propounded therein seem to be proper if a bill can be demanded after answer filed.

The case is founded upon a tort, and at common law, in such cases, a bill of particulars could be demanded after answer filed. In contract cases, the practice in this respect is governed by the express provisions of the Practice act, which requires the demand for particulars to be made before a plea filed, &c. Hopper et al. v. Gillett, 6 N. J. Mis. R. 63.

It is apparent, therefore, that the particulars called for in the above case should be given, and an order may be presented in accordance with the conclusion thus reached.