text:
    THE STATE v. HARRY HELLER.
    Decided October 20, 1924.
    Crimes — Burning Buildings — Defendant Not Served with List of Jurors and Copy of indictment Two Days Before Trial— Postponement Denied Because Section of Statute Requiring Such Service Applies to Crime of Arson — Arson Consists in Burning of Dwelling-house of Another, Not the Offense in this Indictment — Indictment Should Not be Dismissed Because Prosecutor Referred to the Charge as Arson — If Harm Was Done Thereby Most that Could be Done Would be Direction of Mistrial — Alleged Erroneous Admission of Testimony Considered but Not Sustained.
    On error to the Mercer Quarter Sessions.
    Before G cam eric, Chief Justice, and Justices Parker and Katzekbach.
    Por the plaintiff in error, IF. IT oil Apc/ar.

    Bor the state, William H. fíerag'hly, prosecutor of the pleas.
   Per Curiam.

The defendant was indicted for a violation of section 126 of our Crimes act (Comp. Stat., p. 1786), which makes punishable as a high misdemeanor the aiding, counseling, procuring or consenting to the-setting fire to or burning of any goods, wares or merchandise with intent to prejudice any person or corporation that has underwritten any policy of insurance thereon. The specific charge laid against him ivas that he aided and procured and consented to- the setting fire to and burning of a lot of shoos, boots and blankets in his possession in a store in the city of Trenton, which he occupied as lessee, liis purpose being to defraud certain insurance companies which had issued policies to him protecting him against loss resulting from the burning of the property insured. The trial resulted in his conviction, and he now seeks to h°ve that conviction reversed, for reasons which will presently be dealt with.

The first contention is that there should be a reversal, be cause of the refusal of the court to postpone the trial when the cause was moved by the state, the application for postponement being based upon the fact that a copy of the indictment and a list of the jurors had not been served upon him at least two days before the trial, as required by section 54 of the Criminal Procedure act. The motion to postpone was based upon the assumption that the indictment charged the defendant with the crime of arson. But this is manifestly a plain misconception of the fact. Arson, at common law and under our statute, consists in willfully and maliciously burning, or causing to be burned, the dwelling-house of another, or any kitchen, shop or other outhouse that is parcel thereof or belonging or adjoining thereto'. That the offense laid in the indictment does not come within this definition the very wording of the indictment demonstrates.

The next contention is that the court committed legal error in refusing to "dismiss the indictment" on the motion of defendant's counsel, for the reason that the prosecutor of the pleas, in his opening address to the jury, stated that the offense laid against the defendant in the indictment was arson. Whether such a statement was made or not, does not appear from the case sent up with the writ of error, as the opening address of the prosecutor of the- pleas, constitutes no part of it. Assuming, however, that such an erroneous statement was made, it certainly did not entitle the defendant to a dismissal of the indictment, which would seem to mean a quashing thereof of the entry of a nolle pros. The most that can be said in favor of the defendant's right, conceding for the purpose of disposing of this contention that the statement was harmful, is that he was entitled to have the court direct a mistrial because of the erroneous statement, and. so, an opportunity afforded him to' be tried before another jur}7.

The next contention is that the court erroneously permitted the teller of a bank in which the defendant carried liis account to testily as to the state of that account at the time of the (ire, and in refusing to strike out his testimony upon application made for that purpose. We think the testimony was clearly admissible, for the reason that a small bank account would have some evidential value, oven if slight, in determining the existence of a motive for the commission of the crime charged against the defendant.

Next, it is argued that the court erred in refusing to strike out the testimony of a witness named Stout, who was called by the state to prove the value of the goods destroyed or injured by the lire. We think the refusal was proper. Stout was plainly shown to he an expert on the values of merchandise of the kind covered by the insurance policies, and his estimate of the values, as stated to the jury under oath, was properly submitted to the jury, whose province it was to determine the weight to he given it.

The next assignment of error relates to the refusal of the trial court to strike out an answer of the state’s witness on cross-examination because it was not responsive. That the answer was not responsive is true, but it certainly was not injurious to the defendant. The witness was a. captain of police. The question was whether any of the policemen who had been put in the store had made any report of finding certain things in the store. The answer was “No, sir; they were not sent there for that purpose — to find anything. They were there to prevent anybody from getting in.” As we have already stated, we are unable to see how the non-responsive portion of this answer was harmful to the defendant, and his counsel has not undertaken to enlighten us upon this point.

Next, it is contended that the trial court erred in refusing to allow a witness named Ko’Eune to testify with relation to a certain conversation which took place between him and a witness named Baker, who had been examined on the part of the state. The argument is that the defendant was entitled to have the questions put to this, witness answered for the purpose of contradicting Baker’s testimony. But, if that was the purpose of the questions, the witness should have first had his attention called to specific statements made by Baker, and then have been asked whether those statements were true. In the shape in which the testimony was offered, we think it was incompetent.

Next, it is argued that the trial court erred in refusing to direct a verdict for the defendant upon the ground that the proof showed that the defendant was himself the party who set the fire, and not that it was done by some third person at his instigation. This contention seems to us to be absurd, in view of the fact that the defendant himself on the witness-stand testified that he had nothing to do with the starting of the fire.

Next, it is said that the court erred in defining a reasonable doubt. A reading of the whole instruction to the jury on this point satisfies us that, taken all together, it was accurate.

Next, it is said that the court erred in refusing to- charge the following request bearing upon the subject of reasonable doubt: “If you have a reasonable doubt about his having a motive to commit tire crime, that must be resolved in his favor. If you have a reasonable doubt as to his having-planted the bundles of matches, it must be resolved in his favor. If you have a reasonable doubt as to whether he or someone else caused the fire, you must resolve it in his favor. And this doctrine of reasonable doubt applies to every material fact in the case, and if, upon any one particular fact, that is material to the action and necessary to- cause a conviction, you have a reasonable doubt, that reasonable doubt must be resolved in his favor, and the defendant should be acquitted.” AYe think this request was properly refused. A reasonable doubt, which entitles- a defendant to- an acquittal, is a doubt which remains in the minds of the jurors upon a consideration of all the evidence in the case, and not upon certain selected material facts. The purport of the request, as we read it, is that, if the jury should have, a reasonable doubt with relation to any one of the factors expressed in the request, then it would be its duty to acquit, notwithstanding that, on the whole case, it was satisfied beyond a reasonable doubt of the guilt of the defendant.

There are other assignments of error which are briefly argued by counsel for the defendant, hut, as we view them, they are so1 plainly without merit as not to justify discussion.

Lastly, it is said that the verdict of guilty is contrary to the weight of the evidence. Our reading of the testimony satisfies us that the jury was fully justified by the evidence in the conclusion which it reached.

The conviction under review will he affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    THE STATE OF NEW JERSEY, DEFENDANT IN ERROR, v. MAX SCHULTZ, PLAINTIFF IN ERROR.
    Submitted June 6, 1924
    Decided October 24, 1924.
    Crimes — incest—In Review by Assignments of Error or by Specifications of Causes for Reversal Under Criminal Procedure Act, the Grounds or the Causes Must be Definitely Pointed Out — Record Examined in Light of Defendant’s Argument and Prejudicial Error Not Found.
    On error to the Atlantic County Quarter Sessions Court.
    Before Justices Trexcitaed, Mixturx and Lloyd.
    For the plaintiff in error, Garllon Godfrey and William I. Garrison.

    For the defendant in error, Louis A. Bepetto, prosecutor of the pleas, and S. Cameron Hinkle, assistant prosecutor of the pleas.
   Per Curiam.

The plaintiff in error was convicted by a jury of the statutory crime of incest (Comp. Stat., p. 1760, ¶ 45), with his daughter.

The defendant apparently undertook to review the conviction both by assignments of errors on bills of exceptions and by specifications of causes for reversal, pursuant to section 136 of our Criminal Procedure act.

He assigns as error “that the verdict was against the weight of the evidence” as permitted by chapter 319 of Pamph. L. 1921. But an examination of the evidence shows that the verdict is not against the weight of the evidence.

All of the remaining assignments of error and causes for reversal upon which reliance is had, are too general to avail the plaintiff in error. They are generally, in varying language, that legal evidence was rejected and illegal evidence admitted.

Now, whether review is sought by assignments of errors on bills of exception or by specifications of causes for reversal, pursuant to sections 136 and 137 of our Criminal Procedure act, the grounds of error or causes for reversal must be definitely pointed out and assigned or specified with sufficient precision to apprise the court and opposing counsel of the jury complained of. State v. Herron, 77 N. J. L. 523; State v. McCormack, 93 Id. 287; affirmed, 94 Id. 262; State v. Lewis, 1 N. J. Adv. R. 511. As was said by Mr. Justice Swayze, speaking for the unanimous Court of Errors and Appeals in State v. Herron, causes for reversal “should, therefore, where the objection is to the admission, or rejection of evidence, point out the precise evidence which was erroneously admitted and the precise offer which was erroneously rejected. If this is not done it becomes incumbent upon counsel for the state and the court to examine the whole' record which may be very voluminous, and the object of the act is not achieved. We think the causes as assigned in this case too general to avail the plaintiff in error.”

However, in order to satisfy ourselves that no injustice was done, we have examined the record with care, in the light, of defendant’s argument, and we find no error which in our judgment could have prejudiced him in his defense upon the merits.

The judgment below will be affirmed.


author: Pee Curiam.

text:
    OTTO MOSER ET AL., PLAINTIFFS, v. CASTLES ICE CREAM COMPANY, A CORPORATION, DEFENDANT.
    Submitted June 5, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Negligence — Motor Vehicle Collision Between Truck and Touring Car — Truck Turning Sharp Corner to Ascend Steep Hill, With Vision Partly Obscured by Wall — Negligent in Use of High Speed to Make Grade.
    Oil defendant’s rule to show cause.
    Before Gummeke, Chief Justice, and Justices Parker and Katzenbach.
    For the plaintiffs, David T. Wilentz.

    For the defendant, Joseph. T. TAellich.

   Pee Curiam.

This case involves a collision between the defendant’s heavy motor truck and a Ford touring ear, operated by Mrs. Moser, one of the plaintiffs, which collision occurred at the corner of Lewis and Water streets, in the city of Perth Amboy. Substantially, the whole argument in the brief for the defendant is directed to the two propositions that the verdict is against the weight of evidence, both as respects the primary negligence of the defendant and the contributory negligence of Mrs. Moser. A discussion of these questions involves a fairly careful consideration of the topographical situation at that point.

Lewis street is a street of ordinary width, running substantially eastwardly from High street and points westward thereof to Water street, where it stops. Water street is a street leading along the top of a bluff overlooking Staten Island sound, on which Perth Amboy is, for the most part, situated, and as it approaches Lewis street descends sharply to the level of a very few feet above tidewater and contiirues on that level past the end of Lewis' street and around toward Long Ferry, bearing to- the westward. Lewis street also descends very sharply as it approaches Water street. On the northwest corner of Lewis and Water streets is a masonry wall of some consideratble height, with terrace, trees and shrubbery cutting off the view to a large extent. 'At the time of the accident, Water street south of Lewis street, where it is level, was a one-way street devoted exclusively to northbound traffic. As a result of this situation a motor car proceeding down Lewis street toward the sound could not turn to its right on reaching the foot of the hill, but would be obliged to turn to the northward on Water street and, by the same token, the truck, moving southward on Water street, was compelled by the traffic yules to turn to its right up the Lewis street hill. The practical situation was therefore such that the portion of Water street south of Lewis street can be entirely disregarded for the purposes of the case, and the locus m quo may as well be considered as one continuous street with a right-angled elbow in it, one part running north and south and the other east and west; and in the angle at the elbow, the-wall, bank, trees, &e., cutting off the view of either party from the other until the corner was reached. It should seem sufficiently obvious that the driver of a heavy truck moving southward on Water street, and necessarily intending to turn westward up the Lewis street hill, should use a great deal of caution in rounding the corner because of the knowledge that any traffic in the opposite direction must necessarily turn the same corner, and could not see the truck until it reached the corner, and must have a reasonable place to make the turn. Water street is quite narrow at that point and is protected from the water by bulkheads.

We have read the evidence in this case with a good deal of care, and think the only reasonable interpretation to be given to it is that the driver of the motor truck did not proceed with sufficient caution in rounding the comer. On the contrarjq he seems to have made his dispositions to get around the corner and climb the Lewis street hill with something of a rush. He knew there was a hill there, and he knew that he had to turn to the right and climb it; he knew that he had a heavy truck; he knew that his truck was long and unwieldly and, according to his own testimony as we read it, he swung out somewhat from the angle of the corner in order to get room to make his turn at speed, and rush the hill. It was just at this juncture that the plaintiff’s car came down hill. Mrs. Moser, it is true, admits that she knew the truck was coming, but, of course, she could not know that it was coming in this manner, and she was not required to assume that the driver would proceed in a negligent manner, but, on the contrary, she was entitled to assume the reverse. The evidence gives ample support to the view which the jury might have taken that defendant’s driver, finding that he had come around the corner too fast, endeavored to save the situation by swinging his car to the left so as to head off the Ford, but merely succeeded in hitting it. The finding of negligence on the part of the defendant’s driver is amply supported by the evidence, in our estimation.

As to contributory negligence, it may be said that an unusually careful person, under the circumstances, hearing the truck coming, might very well have stopped the Ford car at the top of the grade in Lewis street or part way down the grade and waited for it to come around'the corner, but it certainly cannot be said that the jury must find that person guilty of negligence in having failed to do so.

Our conclusion is that neither on the-ground of negligence nor of contributory negligence was the verdict against the weight of evidence, and, consequently, the rule to show cause will be discharged.


text:
    BERTHA HOLDEN, PLAINTIFF-APPELLEE, v. MAX FRIEDMAN, DEFENDANT-APPELLANT.
    Submitted June 6, 1924
    Decided October 24, 1924.
    Bailment — Fur Coat Stolen When Left for Repairs and Storage— Defendant’s Admission that Coat Had Not Been Returned to Safe — Jury Question Whether Such Act Constituted Lack of Due Care, Considering All Their Circumstances.
    On appeal from the District Court of the city of Paterson.
    Before Justices Trexchard, Mixture- and Lloyd.
    For the appellant, Jacob Willard £ Edgar A. De Toe.

    For the appellee, Hudson & Joelson.

   Per Curiam.

This is an appeal from a judgment in favor of the plaintiff rendered by the trial judge sitting without a jury, in the District Court of the city of Paterson.

Bertha Holden, the plaintiff below, left her fur coa-t at the store of the defendant for repairs and storing. The store was entered by thieves, and when the plaintiff inquired for her coat she was told it had been stolen. She brought suit and recovered a judgment.

The premises of the defendant are on the first floor of the building. He had a safe there in which he placed furs and coats. After the robbery the furs and coats in the safe were secure. Defendant’s explanation, and sole explanation, appears in the testimony of the plaintiff, which was, among other things, as follows:

“I was called up and told that Mr. Friedman’s store was robbed and my sister and I went down to see Mr. Friedman about it, and he said he had been working on my coat until three o’clock in the morning, and had not quite finished it, and lor that reason lie did not put it back in the safe, and for that reason it was stolen, and if he had put it back in the safe it would not have been stolen.”

The explanation, and the only explanation, that he made to Mr. Irolden, according to the latter’s testimony, was as follows: “He said ho was very unlucky; that he was working with the coat very late at night and expected to start on it very early in the morning, and he didn’t think it was worth while putting it in the safe, hut if he had put it in the safe Mrs. Holden would have had her coat.”

The duty of the defendant was to exercise reasonable care in respect to the coat. The trial judge found, in effect, that the defendant had not exercised reasonable care, and the foregoing testimony, considered in connection with the admitted fads, justifies that finding.

The contention of the defendant at the trial was that he failed to put the coat hack in the safe, because during repairs it was wet, and that it is not proper practice to put a wet coat in a safe, and it was upon this ground that he urged at the trial that judgment should be rendered for him. But the trial judge thought otherwise and rendered judgment for the plaintiff, and we cannot say that was wrong. Lie may have disbelieved tire defendant’s claim, made for the first time at the trial, that the coat was wet, or he may have concluded that, in the circumstances, wet or dry, the leaving of the coat outside the safe, without other precautions, was not reasonable care.

Our conclusion is that the question, whether or not the defendant was negligent, was a jury question, and the finding of the trial judge, sitting as a jury, will not he disturbed.

The judgment is affirmed, with costs.


text:
    SAMUEL SILVERMAN ET AL., PLAINTIFFS, v. AMERICAN EAGLE FIRE INSURANCE COMPANY, DEFENDANT.
    Submitted June 5, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Insurance — Motor Car — Question of Identity of Car — Question of Violation of Warranty and Consequent Inability to Recover for Loss From Defendant — Jury Verdict Entirely Against Weight of Evidence — A Venire De Novo Awarded.
    On defendant’s rule to show cause.
    Before Gummere, Chibe Justice, and Justices Parker and Katzenbaoh.
    For the plaintiffs, Saul Nomser.

    For the defendant, Vanderbilt & Hedden.

   Per Curiam.

A number of reasons are urged for a new trial in this cause, but we think it is sufficient to deal with that which relates to the alleged breach of warranty with respect to the year of manufacture. The question was whether the car, which was found partially burned at Hale don, and which the parties seem to have admitted was identical with the car that plaintiff had insured and which had been stolen from in front of a hotel in Newark, was the same car that the defendant showed, without substantial controversy, had been sold in Boston in the year 1915. If it was the same car, it would follow that the warranty in the policy that the car was a 1917 car had been violated, and, consequently, the defendant would not be liable in view of the decision of this eouiff in Felakos v. Aetna, Insurance Co., 119 Atl. Rep. 277.

While we are inclined to think that a jury question was presented on this phase of the case, we are, nevertheless, of the opinion that the verdict was clearly against the weight of evidence so far as it involved a finding that the car sold in Boston in 1915 was not the same as that found at Haledou and insured under the plaintiff’s policy. The evidence showed, without contradiction, that as to the car found at Haledou the serial number was as described by the witnesses “4C2952,” and the main ground urged on the part of the plaintiff for the proposition that this was not the same as the ono sold in Boston, Is that the testimony and depositions relating to the Boston car show simply the number “2952” without any “4C.” This, however, is a mistake, because the documentary evidence seems to show plainly that the “40” part of the numbering related to the model, and that the Boston invoice or bill of sale, or whatever it may he called, shows that the car “2952,” sold in 1915, was a model “4C.”

Our examination of the evidence in the case leads us to the conclusion that the jury clearly found against the great weight of the evidence on this feature of the case, and, consequently, the verdict should be set aside and a new trial ordered.


author: Per Cur tam.

text:
    THE STATE, DEFENDANT IN ERROR, v. THOMAS FUER ET AL., PLAINTIFFS IN ERROR.
    Argued May 6, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Crimes — Rape—Alleged Verdict Against Weight of Evidence— Alleged Error in Refusing to Direct Acquittal — Alleged Errors in Court’s Charge Relating to Reasonable Doubt— None of the Allegations Sustained — Reasonable Doubt May Be Engendered by Defendant’s Evidence, or May Result From Lack of Proof.
    On error to the Somerset Quarter Sessions.
    Before GonnatE, Chief Justice, and Justices Parker and TCatzenbach.

      For the plaintiffs in error, Frederick A. Pope.

    For the defendant in error, Azariah M. Beel-man.

   Per Cur tam.

This was an indictment for rape against six defendants, two of whom were acquitted by direction of the court, and the other four were convicted by the jury. The story of the alleged crime, in brief, is that, after a quarrel and fight between the defendants and some other people in a lunch wagon at Bound Brook some time after midnight, the complaining witness, a Mrs. Bodvenski, a married woman living with her husband, went to find her husband, who she said was at a private house some two- blocks away, and at the corner leading to this house was seized by the several defendants, dragged across tire street into an old cemetery over a retaining wall some three or four feet high, and, at a somewhat secluded place in the cemeterjr, was ravished by the entire party. The principal oral argument and the bulk of the briefs of plaintiffs in error are devoted to the proposition that the verdict was against the weight of evidence. The other points made seem to be as follows: First, that the court erred in refusing to direct an acquittal as to the defendant Farrano. There was, in our judgment, a plain case for the jury as to his participation in the affair, and it would have been error to direct an acquittal.

The next point is that, in charging on reasonable doubt, the court erred in saying to the jury: “The burden of proof is upon the prosecution, and if, upon such proof, there be a reasonable doubt remaining the accused are entitled to the beuefit of the doubt. That is your duty.” The argument made is that this amounted to “limiting the application of reasonable doubt to the proofs adduced on behalf of the state. A reasonable doubt may be engendered by evidence produced by the defendants, or it may result from a lack of proof.”

AVe think the fallacy of this proposition lies in its omission of other language used by the judge directly in connection with it, and which makes the whole matter perfectly clear.

The following is the complete instruction of the court on this subject:

“The burden of proof in this case, as in every other case, is upon the state to prove to jrour satisfaction, beyond a reasonable doubt, of the defendant’s guilt. Reasonable doubt, in one of the best definitions I have been able to find, is defined as follows: Tt is that state of the ease which, after the entire comparison and consideration of all the evidence, leaves ihe minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.’ The burden of proof is upon the prosecution, and if, upon such proof, there be a reasonable doubt remaining, tbo accused are entitled to the benefit of that doubt. That is your duty.
“If, in this ease, you are satisfied, beyond such a. reasonable doubt as I have defined, that these men, or any one of these men, were guilty of the crime as charged by the state, it would be your duty, under the. law, to find them guilty as charged. If, on the other hand, after a consideration of all the evidence, you do not believe any of these men, or anyone did commit the crime as charged, or if there is a reasonable doubt in your minds of any one or all of the defendants having committed the crime, you are bound, under the law, to give the defendants the benefit of that doubt, and to' acquit.”

We think these instructions should have made it perfectly clear to the jury that, in passing on the question of reasonable doubt, they were to take into consideration all the evidence in the case, and that the context indicates that the words “burden of proof” and “such proof” related to the entire proof, and not merely to that adduced on the part of the state. There is therefore, as we think, nothing in this point.

The next point is that the court erred in refusing to charge the second request of the defendant, about half a. page in length, and embracing a considerable amount of comment plainly intended to influence the jury on an acquittal. Requests of this kind, as our courts have frequently said, are often entirely proper to be charged, if the court, in its discretion, thicks it wise to do so, but it is certainty not erroneous to refuse to charge, or fail to charge, in language commenting upon the character of the crime and the position of the defendant, calculated to impress the jury with the idea that the court is working for an acquittal.

Finally, that the verdict was against the weight of evidence. We have read the evidence with care> and, applying the rule laid down in State v. Karpowitz, 1 N. J. Adv. R. 94, we are unable to see that the evidence for the defense predominated in any such sense as to require us to set aside the verdict of the jury in this case. A good deal of the argument is devoted to a sort of computation of the time required for six men (or four men, as indicated by the conviction) to leave the lunch wagon, waylay, seize and ravish a woman and return to the lunch wagon. AÍ1 this was fulty laid before the jury, and they were as well able to' deal -with it as we are. They had the testimony of the woman herself, who was pregnant at the time, and was made very ill and underwent an involuntary abortion, and suffered great loss of blood from a persistent discharge from the womb, the complaint of the matter at once, at least, to one of the police officers, and in the morning to the magistrate, and who' definitely identified in court the men who she says committed the crime. There seems to be no question of the general respectability of the complaining witness, and it seems inconceivable that she should have made so serious a charge against these men unless there was a good basis for it. This was evidently the view taken by the jury, and we do not feel disposed to set aside their finding in the premises.

The judgment is therefore affirmed.


author: Caffrey, J.

text:
    Essex Common Pleas.
    Anthony Salgado, petitioner-appellant, v. Central Dyestuff and Chemical Company, defendant-respondent.
    Workmen’s Compensation- — Hernia — Statute Provides Five Points Upon Which Conclusive Proof Must be Produced Unless Real Traumatic Hernia is Shown — Appeal From Compensation Bureau Decision — Presumptuous to Set Aside Rule Relating to Weight of Evidence — Though Evidence Conflicting, There is Ample Ground for Sustaining the Bureau Finding.
    On appeal from workmen’s, compensation bureau.

      Mr. Harry Unger, for the appellant.

      Mr. Mark Townsend, for the respondent.
   Caffrey, J.

The petitioner made a claim under the act of 1911, paragraph 11, subdivision 10, as amended by P. L. 1923 ch. 49, ndth particular reference to hernia as a basis for compensation, reading as follows:

“Hernia is a disease which, ordinarily, develops gradually, being very rarely the result of an accident. Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered as either congenital or of slow development and not compensable, being a disease rather than an accidental injury; unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that — ' first, the descent of the hernia immediately followed the cause; seeondj that there was severe pain in the hernia region; third, that there was such prostration that the employe was compelled to cease work immediately ; fourth, that- the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia; fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.”

The deputy commissioner found against the petitioner and dismissed the case. The petitioner claimed that the hernia was caused by a sudden effort or a severe strain. When a claim is made under this paragraph, distinguishing it from a “real traumatic hernia” mentioned in the same subdivision, the statute imposes on the complainant the duty of establishing by conclusive proof the following:

“First, the descent of the hernia immediately followed the cause;
“Second, that there was severe pain in the hernia region;
“Third, that there was such prostration that the employe was compelled to cense work immediately;
“Fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to .the employer within twenty-four hours after the occurrence of the hernia;
“Fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia.”

The petitioner, in support of his claim, testified that on Saturday, June 3d, 1922, while employed at the defendant’s plant, he tried to lift an iron bar eighteen or twenty feet long, weighing about t\ro hundred and. fifty pounds, and while SO' doing he fell down, and then felt a pain on the left side, in the groin, but after resting a while he went home and saw Dr. Polaner, about two hours after the accident; that he went to work on Monday, two days later, and worked until January 24th, 1923. He further testified that an operation was performed by Dr. Bostow, on February 26th, 1923.

Dr. Polaner, called by the claimant, said that, upon examination on June 3d, he found a hernia. On June 5th, Dr. Szerlip testified that he examined the petitioner on behalf of the respondent and found an inguinal ring but no hernia. Dr. Kessler, on his examination of the petitioner on January 25th, found no hernia, but an enlarged inguinal ring.

Tlie testimony is in accord that, at the time of the- operation, on February 26th, 1923, the petitioner was suffering from an inguinal hernia on the left side. Dr. Kessler found this condition upon a re-examination of the petitioner on February 8th. Dr. Rosto-w examined him for the first time on February 24th, 1923. There is also- testimony that an operation was performed for the removal of a hernia on the right side about fourteen or fifteen years ago.

'No- question was raised as to tlie employment no-r the wages, nor was there any contradiction that an accident happened, as testified to by the petitioner.

The conflict of testimony concerns with the result of the injury, ancl under the statute, made applicable by the petitioner’s claim, proof of any injury alone is not sufficient to justify cm award. The legislature has laid down certain conditions ancl the decree of proof required to- meet those conditions. The deputy commissioner found, as a fact, that the petitioner did not meet with the requirements of the statute.

This appeal is taken under P. L. 1921 ch. 229, which reads, so- far as pertinent to- this issue, as follows:

“'The trial of such appeal shall bo based exclusively on the transcript of the record ancl testimony, and, at the time fixed for the hearing, argument may he presented by each side to the said judge, who shall, in a summary manner, decide- the merits of the controversy, ancl the judgment of the court of common pleas on any such appeal shall be conclusive and binding.”

Uo-unsel for the petitioner urges a review and reversal of the facts as found hv the compensation bureau. While there is nothing in the statute which holds that a finding of fact by the commissioner is conclusive ancl binding on this court, and assuming only, for the instant case, the power of the court of common pleas to- weigh the evidence and enter judgment accordingly, it would be presumptuous to disregard the settled rule in this state that to- set aside a verdict as against the weight of evidence, “it must be so clear as to- give rise to an inference that the verdict was the result of mistake, passion or prejudice.” Boesch v. Kick, 97 N. J. Law 97, and casos cited. In considering this principle, I am not mi-mindful of the case of Scalise v. Uvalde Asphalt Paving Co., 1 N. J. Adv. R. 1011.

Before the passage of the act under which this appeal Vas taken, and referring to the statute whereby appeals from the compensation bureau were tried de novo in the court of common pleas, the court of errors and appeals held that in workmen’s compensation cases the supreme court could not review the facts as found by the common pleas court, when there is evidence to support the finding of the lower court. Kauffeld v. Pfund, 97 N. J. Law 335.

Taking; the matter sub judice in its entirety, it shows a conflict of testimony, but there is ample evidence to warrant the judgment of the workmen’s compensation bureau, and, therefore, a judgment will be entered for the respondent.

A determination will be entered in accordance with this memorandum.


author: Ingersoll, V. C.

text:
    The Prudential Insurance Company of America, a corporation, complainant, v. Ethel J. Smith and Hannah S. Leuallen, defendants.
    [Determined October 29th, 1924.]
    Insurance — Life—Changing Beneficiary — To Effect Change the Terms and Conditions of Policy Must Be Strictly Complied With.
    On bill of interpleader.

      Mr. Edmund C. Gaskill, Jr., for the complainant.'

      Mr. George B. Marshall, for the defendant Smith.

      Mr. George E. Greis, for the defendant Leuallen.
   Ingersoll, V. C.

The case was heard upon the following stipulations:

“That prior to March 7th, 1922, Earl L. Leuallen and Ethel J. Leuallen were husband and wife; that on or about August 5th, 1918, the Prudential Insurance Company of America, a corporation of the State oí New Jersey, issued its policy of insurance upon the life of the said Earl L. Leuallen, wherein it agreed, upon receipt at the home office of due proof of the death of Earl L. Leuallen, to pay the sum of $1,200, less any indebtedness due the company on account of the policy. It was further provided that the beneficiary named in said policy was Ethel J. Leuallen, the wife of the insured.
“That the court take for its consideration and admitted facts those facts set forth in the bill of complaint filed by the Prudential Insurance Company in this cause, which has attached thereto a photographic copy of the life insurance policy as well as a copy of the amendment or change bf beneficiary thereto undertaken by the said Earl L. Leuallen.
"That the right to change the beneficiary Avas reserved in the following language: ‘If the right to change beneficiary has been reserved, and if the insured shall have obtained the majority according to the laws of the state in which the insured resides, the insured may, at any time AArhile this policy is in force, by written notice to the company at its home office, change the beneficiary or beneficiaries under this policy. Such change to be subject to the rights of any previous assignee and to- become effective only when provision to that effect is endorsed on or attached to- the policy by the company, whereupon all rights of the- former bene-' ficiary or beneficiaries shall ceased
"That, on or about April 29th, 1921, Earl Leuallen, Avithout the consent of the said Ethel J. Leuallen, his AAdfe, undertook to- effect a change of beneficiary by filing with the Prudential Inurance Company a request for amendment, a cop3r of which amendment is attached to- the original bill of complaint filed.
“That no endorsement AAras ever made upon or attached to the policy of insurance by the company, and that said policy has been in the possession of the said Ethel J. Leuallen, now Ethel J. Smith, from- the time of their separation, which occurred on or about March, 1921; that the said policy is now in the possession of the said Ethel J. Smith and is ready to'be produced in this case-.
“That the policy was in the possession of Ethel J. Smith, and I do not think Mr. Leuallen ever requested the policy from her, but that the company did request it and the company at the same time advised her, in the- same breath, ‘we have no- more right to- request of you that, policy 'than we have to- ask you to turn o-ver to- ns certain valuables.’ They did make such a request of her of the policy, and upon their advice she refused to- turn it o-ver.”

The policy and certain letters were offered in'evidence.

It is well sel tied in this state, in cases of this kind, that in order to affect a change of beneficiary * * * the

terms and conditions imposed by the policy to accomplish those ends (this end) must be strictly complied with. Metropolitan Life Insurance Co. v. Zgliczenski, 94 N. J. Eq. 300, and cases therein cited.

The ineffectual attempts made by the insured to have the conditions complied with do not take this ease without the rule above stated.

I will advise a decree that the fund be paid to Ethel J. Smith, the beneficiary named.


text:
    Mulford T. Rose et al., complainants, v. George J. Buckley, Margaret V. Buckley and Ida Reinhardt, defendants.
    [Submitted October 20th, 1924.
    Determined October 30th, 1924.]
    Specific Performance — Institution of Suit to Recover Deposit Money Commits Purchaser to Repudiation of Obligation Under Agreement — Such Step Having Taken, He is Not Now Permited to Seek Enforcement in Court of Conscience.
    On bill for specific performance.

      Messrs. Bourgeois & Coulomb, for the complainants.

      Messrs. Endicott & EndicoH, for the defendants.
   Ingersoll, V. C.

I recently filed a memorandum as follows:

“At the time of the hearing there was pending in the Atlantic county circuit court proceedings in attachment brought by Eose against the defendant Buckley and others, for the return of the money paid by him' on account of the purchase of the property described in his'bill of complaint.”

I am now informed that this writ of attachment was dismissed on March 14th, 1924.

I desire to hear counsel’s views upon the question, “Was the issuance of this writ an election by complainant [plaintiff] and is it now binding upon him ?”

The court of errors and appeals in an opinion in Claron v. Thommessen, filed very recently, and not yet reported, states fhe rule to be:

“When he [the purchaser] instituted suit ágainst Ciaron [the seller] to recover the deposit money, he irrevocably committed himself in solemn form to a repudiation of all obligation under the agreement. Having taken this step in rescission of the contract, he will not now be permitted to seek its enforcement in a court of’conscience,”

This court is bound by this statement óf the law as expressed by the court of errors and appeals, and the bill must therefore be dismissed.


text:
    Stang Hyman et al., complainants, v. Blume Lewine et al., defendants.
    [Submitted October 31st, 1924.
    Determined November 5th, 1924.]
    Judicial Sales — Title Vests át Time of Delivery of Deed — Time Intervening Between Sale and Delivery of Deed, Property is Held in Trust for Purchaser — Income During Interim, Collected by Purchaser, Must Be Accounter For.
    On-bill for partition.

      Messrs. Bourgeois £ Coulomb, for the complainants.

      -Messrs. Cole £ Cole, for the defendants.
   Ingersoll, V. C.

This is on bill for partition.

The complainant Stang Hyman and the defendant Blnnie Lewine wore each seized of an equal undivided one-half part of the land and premises described in the bill. On August OOtln 1922, Emerson L. Eichards, a special master of this court, sold by virtue of a decree for sale the- lands and premises therein described to one Ezra Lewine.

The conditions of sale signed by the purchaser were as follows:

“1. The property wilt be sold to the highest bidder [subject fo confirmation by the court].
“2. Fifteen per cent. [15%] of the purchase-money shall be paid when the property offered is struck off, in default whereof it may be put up again and sold immediately.
“3. The balance of tlie purchase-money shall be paid within five L5| days after tlie said sale shall have been confirmed, at the office of Emerson Kiehards, 517 Guarantee Trust Building, Atlantic City, New Jersey.
“4. Tlie deed will lie delivered at the above time upon compliance by ihe purchaser with these conditions.
“5. The purchaser will be bold bound by the purchase whether he attends to receive the deed and comply with the conditions of sale or not. If lie does not so comply with them, the properly may be again advertised and sold, or the purchaser! may be liable for his bid, at the option of the -special master or by the order of the court. In case of resale al a less price than tlie former bid, wiih interest and expenses, tlie former purchaser will be held liable for the deficiency, to meet which the money paid by him shall be retained and applied by tlie special master.”

The purchaser, Ezra Lewine, as agent for the parties, had collected rents accruing before the sale, and continued collecting the same after the date of the sale.

Application is now made for an accounting of the rents collected prior to the date of the deed. He lenders himself ready to account for all rents collected prior to- the date of the sale, and counsel relies upon the principle.

The sheriff’s deed when delivered has relation back to the time of the sale of which it is the consummation. Carpenter v. Shanley, 75 N. J. Eq. 369, and cases therein cited.

The petitioner relies rtpon Thompson v. Ramsey, 72 N. J. Eq. 457, which held “that Carr [the purchaser] was not entitled to any part of the rents attributable to the real estate mortgaged until after he had performed the conditions of sale and accepted the sheriff’s deed.”

It is insisted that these cases are irreconcilable.

Not so.

Vice-Chancellor Garrison in Cropper v. Brown, 76 N. J. Eq. 406, after a discussion of the facts and the law applying thereto (on p. 418), proceeds to say:

“In my view, therefore, the correct rule to be applied in our jurisdiction is that the purchaser at a. judicial sale enters into a contract with the officer to which the same principles should be applied, which are applicable to a similar contract between private parties voluntarily entered into. And the fact that by the terms of the contract the purchaser is not entitled to' possession until a future date does not in any way alter the legal or equitable rights of the parties.
“The legal title does not vest in the purchaser until the delivery of the deed, but, in the meantime, it is held in trust for him. Since he has stipulated that he is not to receive possession until a future date, namely, the time when the deed is to be delivered to him, he is not entitled to the fruits of possession, which are the current avails of the land. There are numerous cases, which I shall not stop to cite, which hold that until he is entitled to possession he is not entitled to such avails. But excepting with respect to the time when he is entitled to possession and the fruits of possession, the contract vests the beneficial ownership of the property in such purchaser, and any increase of value or decrease therein inures to him.
“In other jurisdiction the rule is, in some, as above stated, and in others, otherwise by reason of their statutes, and in some it is otherwise bjr reason of the different view which 1he court- in question takes- of the situation arising out of a judicial sale.”

The conditions of sale in that case specified for the payment of the balance of the purchase1 price on a specified date, and deed to be delivered upon compliance with the conditions. In the present case the balance of the purchase-money to be paid within five days after the confirmation of the sale, and the deed to be delivered upon compliance with the conditions.

The sale was confirmed by order dated October J6th, 1922, and the balance of the purchase price paid and deed delivered on October 26th, 1922.

1 am therefore of the opinion that Lewine must account for the rents collected up to the date of the delivery of the deed, October 26th, 1922.


text:
    Ethel Bath Everingham, petitioner, v. William Everingham, defendant.
    [Submitted and determined October 28th, 1924.]
    Divorce — Adultery—Answer and Counter-claim Alleging Adultery on Part of Petitioner — Evidence Supports Both Allegations — Both Petition and Counter-claim Denied.
    On petition for divorce.

      Mr. H. Byron Lore, for the petitioner.

      Mr. LjeBoy W. Ljoder, for the defendant.
   Ingersoll, V. C.

The wife filed a petition for divorce charging the defendant with adultery with one Hattie Moore On divers days in April and May, 1923.

The proven facts are: That the defendant and Hattie Moore, and Thomas Quinn and an unknown woman, were on the night of May 9th, 1923, at a drinking place in Vine-land; that from there they went to the Baker House, at Vineland, where Quinn registered the four as two parties, each of man and wife, the names upon the register being undecipherable. Each couple (man and woman) were assigned to bedrooms. They went to the rooms about eleven or eleven-thirty p. m., and in the morning, some time before noon, Quilín went to the room occupied by Everingham and the Moore woman and found them therein.

Everingham denies committing adultery that night, stating that he went out of the room and was so drunk he was unable to find it again until morning. He admits, however, that he was in the room with the woman about an. hour in the night and an additional hour in the morning. There can he no doubt of their guilt.

The defendant, however, filed an answer and counterclaim alleging adultery on the part of the petitioner.

Later, he filed a paper in form withdrawing the answer and counter-claim, and upon the petitioner applying for an order revoking the order of reference to a vice-rcliancellor, an order was filed denying the application for leave to withdraw the answer, but granting the application to- withdraw the counter-claim.

The solicitor of the defendant, upon application to- the court, was relieved of representing the defendaait at the trial, and an order was made assigning LeRoy W. Loder to actively defend the cause.

At the hearing Judge Loder applied and was granted leave to file an amended answer and counter-claim, alleging adultery at the same time and with the same person as in the original counter-claim filed.

Leave was granted and testimony taken. At the close of the case the court suggested that, although the solicitor of the petitioner had consented to the filing of the amended answer and counter-claim, the petitioner was entitled to have a reasonable time to produce the person charged as par Li ceps criminis, or for that person to apply to be made a party. The hearing was continued until October 28th, 1921. The petitioner produced no* additional testimony, nor has the party charged applied to be made a party to the cause. The hearing is closed. Believing the testimony produced, the1 guilt of the petitioner is clear.

There can be no reasonable doubt of the truthfulness of the testimony of Miss Mayhew and Mrs. Miskelly.

The facts proven are that the petitioner applied to Miss Mayhew for the rent of a room, giving her name as Mrs. Reed (the name of the co-respondent), and stated her husband would call, and, if the room was satisfactory, they would take it for an extended stay. The man came, examined the room, and they engaged it. The woman stayed at the room (being engaged in a factory in the- same city), and the man came several times a week, spending the night, remaining until about daybreak a number of times.

The result is that the petition and the cross counter-claim will each be dismissed.


text:
    Bessie Anderson Parker, complainant, v. Harry L. Parker, defendant.
    [Submitted October 9th, 1924.
    Determined October 21st, 1924.]
    Divorce — Alimony Pendente Lite — Wife Insists on Living at Some Other Place Than That of the Residence of the Defendant- — Husband Has Right to Require that Wife Receive Her Support in His Home, Unless by His Conduct He Has Lost that Right.
    On bill for maintenance.

      Mr. Joseph B. Perskie and Mr. Willis T. Porch, for the complainant.

      Mr. Emerson L. Richards, for the defendant.
   Ingersoll, V. C.

This is an application for alimony pendente lite.

Most voluminous affidavits have been filed. While it is clear that the wife is unable, because of ill-health, to perform any duties as a wife, and there is testimony that the seashore is not a suitable residence for her, I am satisfied that the motion must be denied, and the bill for maintenance brought to a final hearing. The wife insists on living at some other place than the residence of the defendant, although he offers her a home with him.

In Barefoot v. Barefoot, 83 N. J. Eq. 685, the court said: “The law requires a husband to support his wife. It is his right to require her to receive that support in his heme as his wife, unless he has lost that right by his conduct. It is only when he desires her presence in his home that her presence in that home can be made a condition precedent to his obligation ol: support.’'’

It also appears that the wife has sufficient property to support herself. This is sufficient to deny alimony pendente lite. Wexterfield v. Westerfield, 36 N. J. Eq. 195.

The motion for alimony pendente lite is denied, but, should the cause he referred to me, I will designate a very short day for the hearing.


text:
    ALFRED ROSE, ADMINISTRATOR AD PROSEQUENDUM OF LENA ROSE, PLAINTIFF, v. HARRY H. SQUIRE AND SAMUEL J. CAMPBELL, DEFENDANTS. ANNA ROSE, PLAINTIFF, v. SAMUEL J. CAMPBELL AND HARRY H. SQUIRE, DEFENDANTS.
    Submitted June 5, 1924
    Decided October 7, 1924
    Filed October 24, 1924.
    Appeals — Failure of Appellant to File Briefs — Case Dismissed Under Rule.
    On appeal.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbaoh.
    Par the plaintiffs, Benjamin M. Weinberg

    Por the defendants, Marie Townsend, Jr.

   Per Curiam.

This case was submitted on briefs. The plaintiff’s brief has been submitted, as also the brief for the co-defendant Squire, as to whom a nonsuit was entered, and wlm is interested in the case to that extent. -No brief, however, has been filed for the defendant Campbell, against whom the verdict and judgment were rendered, and under paragraph P-3 of rule 155 of this court, the appeal should be treated as abandoned.

The appeal will, accordingly, be dismissed.


text:
    CRITERION CONSTRUCTION COMPANY v. CITY OF EAST ORANGE AND SCOTT, BUILDING INSPECTOR.
    Decided October 27, 1924.
    Ordinance — Zoning—Governed by Nutley Case.
    On mandamus. On demurrer io return.
    Before Gumaleke, Cum? Justice. and Justices Mintubn and Black.
    For the relator, Merritt Lane.

    For the respondent, Robert II. McCarter.

   Per Curiam.

'Phis case is controlled by the decision of the Oonrt of Errors and Appeals in what is generally known as the Nutley case. Ignaciunas v. Town of Nutley, 1 N. J. Adv. R. 1023.

We are required by the decision in that case to sustain the demurrer to the return to the alternative writ.

It will be so ordered.


text:
    CITY OF CAMDEN, RESPONDENT, v. JOHN R. SMALLEY, PROSECUTOR.
    Argued October 7, 1924
    Decided October 27, 1924.
    Vehicles for Hire — Distinction Between Public, Semi-Public and Prívate Use — Vehicle Hired to Undertaker Who Used It for Transporting Those Attending Funerals — By No Process of Reasoning Can Such Use Be Regarded as a Violation of an Ordinance Providing for Licensing Special Auto Busesi— Authority of a Municipality to Enact Such an Ordinance Raised but Not Passed Upon.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    For the prosecutor, Joseph Beck Tyler.

    For the respondent, Bernard Bertram.

   Per Curiam.

The prosecutor is engaged in the automobile livery business in the borough of Woodljmne, about a mile from the city of Camden. He was the owner and operator of a seven-passenger automobile, and on June 7th, 1924, he hired the said motor vehicle to the John Crawford Company, undertakers and funeral directors of the city of Camden, by which the car was used for funeral purposes in carrying persons attending a funeral from the Catholic church at Sixth and Market streets, Camden, to Calvary cemetery, near the city limits, and from thence back to the church. The family of the deceased paid the undertaking company for the hire of the car and the company paid Smalley for the use of the vehicle. The persons carried paid no fare.

The prosecutor was charged with the violation of an ordinance of the'city of Camden entitled “An ordinance providing for the licensing of special auto buses operating over the streets of the city,” convicted thereof in the city police-court and fined $250.

To the review of such conviction this writ is directed. Such, ordinance, so far as pertinent to the present inquiry, provides as follows:

“Section 1. Every hack, wagon, auto bus or other vehicle operating over the streets of the city of Camden, and carrying passengers for hire, other than a taxicab, or an auto bus over a designated route, shall, for the purpose of this ordinance, he deemed a special auto bus, and be licensed by the city as such.
“Section 2. It shall be unlawful for any hack, wagon, auto bus or other vehicle to operate over the streets of the city of Camden as a special auto bus without first obtaining a municipal license therefor.”

Aside from the question of authority-of the city of Camden to adopt an ordinance which, by its language and terms, would reach the, vehicle of prosecutor, employed as herein described, and which question we are not called upon to decide, we axe unable, by any process of reasoning, to' find that the ordinance in question reaches to and includes a vehicle employed and used in the manner and under the conditions which the facts in this case establish as to- the motor car of the prosecutor. Its use was neither public nor semi-public, nor for hire, nor was the prosecutor a common carrier of passengers. On the contrary; its use was private.

This conclusion requires the reversal and setting aside of the proceedings and conviction under review, with costs.


author: Gummere, Chief Justice

text:
    ON RULE TO SHOW CAUSE WHY JOHN H. SCOTT, COUNTY CLERK OF ESSEX COUNTY, SHALL NOT BE REQUIRED TO CORRECT THE OMISSION OF THE NAME OF JAMES K. SHIELDS, AS A CANDIDATE FOR UNITED STATES SENATOR, FROM THE SAMPLE AND OFFICIAL BALLOTS TO BE USED AT THE COMING GENERL ELECTION, TO BE HELD IN ESSEX COUNTY ON NOVEMBER 4th, 1924.
    Decided October 25. 1924.
    Elections — Printing Ballots' — Withdrawal of Candidates — Provision for Withdrawal Thirty Days Before Election Must ' Be Read in Connection With Provisions for Filing Papers or Performing Duties on Monday When the Day Fixed Falls on Sunday — Even if Not So, to Make an Order that Manifestly Would Disfranchise Many Voters Because of the Physical Impossibility of Carrying it Out Would Not Be in . Accordance With the Spirit of the Statute.
    On. return oí rule to show cause.
    Before Gummeke, Chief Justice.
    Eor the rule, William 'V. Rafferty.

      Honira, J. Henry Harrison, Wilbur A. Mott and Joseph G. Wolber.

   The opinion of the court was delivered by

Gummere, Chief Justice

(after argument). I said a little while ago that it seems to me that the question whether the name of Mr. Shields should or should not appear on the ballot depended on the construction and effect of this four hundred and forty-sixth section, providing that the filing of a document or performance of a duty on or before a certain fixed date could be done or performed on Monday, rather than on the last day named in the statute, if that day happened to fall on Sunday. This declination, if it had been filed not less than thirty days before election, could have been filed on the 5th, if that had not happened to he Sunday. That is settled under our decisions. So, 1 have no doubt that, if the 5th had not fallen on Sunday, and this declination had been delivered to the secretary of state on the 5th, it would have been delivered within the time fixed by the statute. I agree with Mr. Justice Minturn that, except for this four hundred and forty-sixth section, the delivery of the declination to the secretary of state on Monday would have been too late, and it would have been prop erlv disregarded by the officers interested in the carrying out of the provisions of the Election law. The question, therefore, is whether delivery of this certificate of declination to the secretary of state on Monday, the 6th, was permitted by the legislature by the true construction of section 446. The language of that section is that whenever the day of the filing of any petition or other document, or the performance of any duty required by this act — that is, required by any of the provisions of the Election law — shall fall on the Sabbath day, then said filing or said performance shall be performed on the following Monday.

So, the first question is whether the delivery of the paper, this declination, although it is not so declared in the two hundredth, section, is a filing in the secretary of state’s office, and I think it is. It was not the intent of the legislature that a candidate for election should go to the secretary of stale and hand him a paper containing his declination, duly acknowledged, so as to show beyond question that it is his act. and that the secretary of state should then take it home and put it among his own personal papers or throw it in a waste-basket. The candidate is to deliver it to the secretary of state, as the representative of the public, so- that the people of the state, the electorate, may know, from Sussex to Cape May, that this candidate has retired from the contest, by going to the secretary of state’s office and examining the documents on file in his office. Tt is to remain there, in my humble opinion, just as any other paper filed there would, so that next year, or ion years from now, if anybody wanted to know what had happened in the Shields ease, they can go to the secretary of state’s office and say, “Let me see the declination of Mr. Shields filed in your office on the 6tli day of October, 1924.” That is the filing of a public document, in my opinion. But, if it was not, still I think the declination comes within the description of the four-hundred and forty-sixth section, for this reason: The section says, “where a paper is to be filed or where a duty is to be performed by any person.” Can there be any doubt, where a candidate for an office desires to retire from the contest, that a public duty rests upon him to. see that the people of his state, or of his county, or of the district in which he is running, shall know that he is no longer a candidate, so that the votes of those who would otherwise have cast a vote for him should not be wasted. That is a public duty which he owes to the people whose votes he is seeking, and so, as the statute says, that duty may be lawfully performed on Monday.

Eor the reasons indicated, I think the four hundred and forty-sixth section applies to the situation which we have been discussing this morning, and that, where the thirtieth day before election falls on a Sunday, a candidate who desires to withdraw from a contest may do- it by presenting his certificate of declination to the secretary of state on the following Monday. That is what was. done in this case, and, as a result of this reasoning, which seems to me to- be- sound, I think that the name of . Dr. Shields has no place on any ballot in the State of New Jersey.

Now, I may go a little further, and say as to this reasoning, which seems to 'me to be sound, I am not depending entirely upon my own view. On Thursday of this week the members of the Supreme Court happened to be in Trenton in the performance of their official duties, and we all considered this question of such great importance to the whole people of the state that we devoted two hours to a discussion of tírese very questions -which I have elaborated this morning," and by a very large majority of all of the justices we reached the conclusions that I have attempted to express this morning. So, that, even if I personally had any donbt on the question (and I have not), I would feel very much .shaken as to the soundness of that doubt, and would be inclined to feel that I should not set up my opinion against that of the great majority of my brethren. For the reasons I have stated, I decline1 to make an order on the clerk to destroy the seventy-five thousand ballots that have already been printed, and to print by next Saturday the two hundred and thirty thousand necessary for use at the coming election.

And I will say one word more. Even if I had reached the opposite conclusion as to the construction of the statute, I would refuse to make this order. This declination was filed in the secretary of state’s office on the 6th of October, and it was notice to the world of the action of this candidate; and this present application was made to me on the 23d, between two and three weeks afterward, during’ all of which time the county clerk of this county, in the faithful performance of his duty, lias been engaged in making preparations for the coming election, for the benefit of the people of the county whom he is serving, and he has. largely performed that duty; and it is my humble opinion that, if anybody wanted to challenge the propriety of omitting the name of this candidate on the ballot, he should have acted, promptly.

It seems impossible to escape the conclusion that, even if the name of Shields was improperly left off, a direction to the county clerk to destroy all ballots already printed and reprimí them would necessarily disenfranchise a large number of the voters of this county, and I think that it was for the very purpose of preventing such a result that the legislature said in the two hundredth section, under which this proceeding has been inaugurated, that the application may be made to the1 Supreme Court justice to compel the county clerk to correct the ballots, and it says that the said justice, upon being satisfied of the existence1 of error in the ballot as printed, may thereupon summarily require the county ¡clerk to correct such error, or he may, although satisfied of the existence of the error, require the county clerk to show cause why -said error should not be corrected; and it is impossible for me to conceive a stronger reason that conld be suggested by the county clerk for refusing to order a reprint than the fact that it would be a physical impossibility to reprint in time, and the result of such order would be to disenfranchise. a large number of the voters of his county. Would any justice of the Supreme Court, when that situation was presented to him, say “it does not make any difference; I don’t care whether my order will disenfranchise ten or twenty per cent, of the voters of the county; you go ahead and do as I say?” That it was the purpose of the legislature to guard against such a result is, I think, made clear by the language I have called attention to.

Mr: Clerk, you may go on and print the ballots as you have started to do.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    Ernest Winters, petitioner, v. Weidman Silk Dyeing Company, respondent.
    Action Barred by Statute of Limitations — Payments Made and to be Made Not as Legal Compensation, but as Donation— Application Dismissed by Consent.
    On determination and rule for judgment.

      3/r. James M. Dwnn, for the petitioner.
    3/r. Richard W. Baker, for the respondent.
   A petition having been filed for compensation under the provisions of chapter 95, laws of 1911, known as the Workmen’s Compensation act, and a time and place having been set for the hearing thereof, and it appearing that this action is barred by the statute of limitation, in that a petition was not filed within a year after the date of the alleged accident, and that no compensation payments were at any time made to the petitioner or to anyone on his behalf, and that the said petitioner therefore has no claim whatsoever under the Compensation act, and it further appearing that the money received by the petitioner from the. respondent, which amounted to half his wages for a certain period of' time, was a charitable donation, and in no way can be considered as compensation, and it further appearing that the respondent is willing to contribute the sum of $250 to the said petitioner as a charitable donation in consideration of his unfortunate condition, and is in no manner to be construed as a settlement of any claim petitioner may have against the said respondent.

It is ordered that the petition filed he dismissed, and the proceedings now pending before the Workmen’s Compensation Bureau be and the same are hereby discontinued.

William B. McMichael,

Referee.

I hereby consent to the entering of the within determina.tion and rule for judgment.

Richard W. Baker,

James M. Dunn, Attorney for Respondent.

Attorney for Petitioner.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    Carmela Vitalare, petitioner, v. Hamilton Rubber Company, respondent.
    Loss of Vision — Apparently Permanent — Splashing of Fluid— Questions of Fact and of Medicine — Liability for Intermediate Disability Only.
    On petition for compensation.
   This is á ease arising under the Workmen’s Compensation act, in which the petitioner seeks to secure compensation for loss of vision, apparently permanent, which he alleges resulted from the accidental splashing into his eyes of a fluid used iu dissolving rubber. The question is not only one of fact, but is also a medical on©: With regard to the former, the testimony was very contradictory. Considerable testimony was introduced, and in about equal amount; that prior to the occurrence the petitioner’s eyes were normal, and also that they were not. I am led to conclude that this man’s eyes must have been affected sufficiently so as to cause some persons to observe it and others not to notice it.

At the hearing testimony was introduced to. show that others who had experienced a like occurrence, with presumably the same, fluid, had never suffered any ill effects. It. may be that the condition of. the petitioner’s eyes, rendered him more liable to injury, but regardless of this the fact is that about a. week subsequent to the accident he was obliged to seek medical aid. Dr. Ignazio 11. Gangialosi, of New York, testified that he found the patient suffering greatly, and there was evidence of small pin-point, burns, which eventually resulted in zehrosis at these points. This condition, he declared, is permanent, but. did not, as located, effect the vision. During treatment it was discovered the patient had contracted trachoma, a disease acquired only by contagion, the- origin of which could not possibly be traumatic. The period of disability resulting from this overlapped the period required for the healing of the burns, causing the zerhosis, making it impossible to determine the exact period of disability clue to the latter affection. From the doctor’s lengthy testimony I conclude this period was four months.

The petitioner’s attorney endeavored to establish that the contracting of the trachoma was really the outcome of increased exposure due to the previous eye condition. This is a possibility, but there is nothing in the medical testimony which can be held to establish it as a fact. I hardly think it can be held that a, mere possibility establishes an assumption as a fact.

The testimony of Dr. Gangialosi, Dr. Charles A. Adams and Dr. D. M. Yazujian leads to the conclusion that the loss of vision which the petitioner now suffers is due. not to the zehrosis caused by the bums which have now healed, but to the progress of the trachoma, the origin of which is not traceable. This affliction is progressive, and I am led to conclude that the petitioner was suffering therefrom, in its earlier stages, prior to the accident in question, that this condition would have progressed to its present stage throughout the intervening time, and that into the middle of this period has been interjected an independent period of disability caused by the accident.

It is therefore only for this period of intermediate disability that the employer can be held responsible. An order will be drawn up accordingly.

W. E. Stubbs,

Deputy Commissioner of Compensation.


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    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Isabella Matulis, petitioner, v. Thatcher Furnace Company, respondent.
    Injury to Hand — Infection Resulting — Testimony Relating to Streptococcus Germ — Death from Pneumonia in Sixteen Days — Accident Contributing Cause — Chain of Causation Not Broken — Cases Cited to Confirm Finding.
    On petition for compensation. Determination of facts and rule for judgment.

      Hr. William J. Kearns, for the petitioner.

      Hr. Irving W. Young, Jr., for the respondent.
   A petition and answer having been heretofore filed in the above-stated matter under the terms and provisions of an act entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of the employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1911, together with the several supplements thereto and acts am'endatory thereof, and a time and place for the hearing having been fixed, and service having been duly made on both sides, and the said matter having come on for hearing in the presence of William J. Kearns, for the petitioner, and Irving W. Young, Jr., for the respondent, on October 25th, 1923, and having been duly adjourned to November 1st, 1923, at which time testimony was offered on behalf of the parties hereto, and the further hearing thereupon having been continued, to- March 20th, 1924, on which last date the testimony on behalf of both parties was concluded.

I do find and determine from the testimxory offered by the respective parties as follows:

1. That the deceased, Anton Matulis, was, on April 28th, 1923, in the employ of the respondent as a laborer, and was apparently in good health and did his regular work up to the time of the accident herein stated.

2. That on said date the • deceased met with an accident arising out of and in the,course of his employment, and that he was injured while pushing a truck with two' other men, when an iron flask slipped therfrom and injured decedent’s left hand, such injury resulting in an infection. The medical evidence discloses that the hand wras very swollen, painful, discharged serum, and there were present all the indications of lymphangitis. The medical evidence also discloses that the deceased became devitalized through said infection, which caused a lowered resistenee, resulting from pain and loss of sleep, whereby ready access for the germ of pneumonia was afforded, and that death occurred on May 14th, 1923, from lobar pneumonia.

3. I find that the chain of causation between the accident and injury to the dorsal aspect of the decedent’s left hand while in the employment of the respondent, and the infection resulting therefrom whereby his powers of insistence were weakened (such resultant debility consequent upon the infection having rendered him through lowered vitality an easy prey to the germ of pneumonia), and the death of decedent, was unbroken.

4. Death supervened two wreeks and two days after the ac eident. There is some testimony in the case concerning a streptococcus germ and a pneumococcus germ, but without. deciding whether it wras either the one or the other, we do know from the evidence that he died from lobar pneumonia, which could have resulted from a mixed infection, and it is plainly evident that there was no break in the chain of causation.

Mr. Justice Swayze, in the case of Newcombe v. Albertson (February 25th, 1914), 89 Atl. Rep. 928, cited the case of Clover, Clayton & Co., Ltd., v. Hughes, A. C. 242, in which the eonrt said:

“It seems to me enough if it appears that the employment is one of the contributing causes without which the accident which actually happened would not have happened, and if the accident is one of the contributing causes without which the injury which actually followed would not have followed.”

Mr. Justice Swayze continues:

“In the present case it is said that the chain of causation is broken because the infection was due to the failure of the physician to take proper precaution. * * * We cannot assume that the infection could be caused only by the negligence of the physician, and it is therefore unnecessary to decide- whether such negligence would amount to such a break in the chain of causation that the employer would not be liable. We think the trial judge was right in finding that the injury in fact resulted from the accident and in holding the employer liable. Judgment is affirmed, with costs.”

In Balch v. Edward G. Budd Manufacturing Co. (Supreme Court of Pennsylvania, May 23d, 1923), 122 Atl. Rep. (advance sheets) 1, it was held “while the law requires that the relation of cause and effect involved in a compensation ease be established beyond mere possibility, its existence need not be demonstrated with mathematical precision, and probability is sufficient.”

In the case of Nastocos v. Orfan (July 7th, 1921), 198 N. Y. App. Div. 951, a soda dispenser cut his thumb; resultant infection lowered his vitality; he died of pneumonia; it was objected that the pneumonia was. not the result of the infection. The appellate division affirmed the award of benefits to. his widow and children.

In Sanders v. General Electric Co., 198 App. Div. 981; 28 S. D. R. 190, a woman employe caught her fingers in a machine. Treatment of one of them resquired baking of it in a hot-air oven, which caused her to perspire excessively. Pneumonia ensued and merged into tuberculosis, causing her death. The commission denied benefits to- her mother upon the ground that the disease did not result from the. accident. The mother appealed to the appellate division, which reversed the decision. Upon a, rehearing the board awarded benefits to the mother. The appellate division, upon a second appeal, affirmed the award unanimously and without opinion, March 15th and 16th, 1923. See, also, McGrath v. Winternitz, 189 App. Div. 883.

A porter who fell over a shaft, injuring his shin bone; resultant infection, death from pneumonia. Ashton v. Ross Heater Co., 202 App. Div. 769. A gas maker who incurred burns and a broken rib in boiler explosion; death from pneumonia. Crowley v. Consolidated Gas Co. of New York, 198 App. Div. 961. An employe who caught his hand in a meat chopper; resultant infection; lowered vitality; death from pneumonia. Mannheimer v. Cossens, 198 App. Div. 962. -In all of these cases the New York appellate division affirmed benefit awards unanimously and without opinion.

5. Respondent had actual knowledge of said accident, injury and death oar the date of their occurrence.

6. Wage received by the decedent was $24. per week. No compensation was paid to decedent or petitioner.

7. That decedent left two dependents, his widow, Isabella Matulis (the petitioner), and a son, Anton Matulis, now fourteen rears of age, who was bom on April 18th, 1910.

8. That the dependency of the said widow, Isabella Matulis, and a minor son, Anton Matulis, existed at the date of the death of the decedent, to wit, May 14th, 1923, and is now in effect at the rate of forty per centum of the wages of said deceased, or $9.60 per week, and will so continue until said minor attains the age of eighteen years, which will be on Ajpril 18th, 1928, until which time the said sum of $9.60 per week shall be payable for the1 said two dependents to the widow, Isabella Matulis, for such intervening period; and thereafter, to wit, from and after said April 18th, 1928, the said widow shall be entitled to receive thirty-fire per centran of $24 per week, or $8.40 per week, for the remaining period of three hundred weeks.

9. There is now due to- the petitioner from the respondent fifty-five weeks’ compensation at $9.60 per week, and $100 for funeral expenses and $15 for medical expenses.

10. That the petitioner is the widow of the deceased and was residing with him at the time of the accident as his lawful wife, and that Anton Matulis, the minor, is the son of the deceased, and was also- living in the same household at the time of the accident.

11. That the total amount of intervening weeks which have accumulated is- now payable to- the petitioner at one time in a lump sum, and the remaining weeks of the three hundred weeks shall become due and payable in due course.

It is therefore ordered that judgment final be entered in favor of the petitioner and against the respondent, which respondent is to pay to the petitioner as follows: $9.60 per week for the intervening weeks- from the death of decedent, May 14th, 1923, to- the date of this order in a lump sum at one time, together with $100 for burial expenses and $15 for medical expenses, and thereafter at the rate of $9.60 per week, to April 18th, 1928, at which time the mino-r, Anton Matulis, shall have reached the age- of eighteen years, and thereafter to the said petitioner at the rate of $8.40 per week for the remaining period of the three hundred weeks from the date of the death of the said decedent, besides a counsel fee of $200 to- be paid counsel for petitioner.

Habky J. Goas.

Deputy Commissioner.


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    New Jersey Department of Labor. Workmen's Compensation Bureau.
    William R. Reavell, petitioner, v. Warner Sugar Refining Company, a corporation, respondent.
    Truck Running Into Employe — Injury to Groin — Injury to Spinal Column — Employe had Mild Form of Arterio-sclerosis and Mild Urinary Disorder — Compensation Fixed.'
    On findings of fact and rule for judgment.

      Messrs. Kent & Kent,, for the petitioner.

      Mr. Richard, W. Baker, for the respondent.
   * * * 4. The petitioner’s wages at the time of the accident, averaged $35 per week.

* * * • 6. The facts of the accident were as follows: Petitioner was employed as a checker in the plant of the respondent at Edgewater. About seven-twenty a. m. of that day he was at work, when he was run into and struck down by a hand-truck in. front of him, which hit the front part of his body in the region of the right groin, throwing him back a distance of approximately ten feet with great force, so that he fell flat on his back within the sides of another hand-truck laying on the floor behind him, his spinal column in the region of the lower part of his back striking the sharp edge of an iron plate affixed to the bottom of the hand-truck. The truck which ran into- him from the front was being pushed up an incline in his direction This truck was loaded with sugar and weighed about one thousand five hundred pounds. It was being pushed by two men in the rear and pulled by one man in front, who was stationed within two iron shafts which projected about two feet from the front of the truck in the direction of the petitioner. One of these iron shafts struck the petitioner in the groin, knocking him down as aforesaid. Petitioner was thrown back with such force that his body was wedged between the handles of the truck, and it was necessary for several persons to extricate him. He immediately experienced excruciating pain in the region of the groin and throughout liis back. He received medical treatment immediately and continued to receive treatment for months after the accident, during all of which time he felt, and still feels, terrific pain throughout'his back and body and inability to' ilex bis body.

7. As a result of the accident, petitioner was temporarily disabled from January 5th, 1924, being the date of the accident, to April 7th, 1924.

8. I find that petitioner at the time of the accident herein was an ordinarily healthy and able-bodied person, enjoying good health and able to attend to his duties without any pain or suffering.

9. I find that at the time of the accident petitioner had a mild condition of arterio-selerosis and a mild form of urinary disorder, quite common in a man of his age, which did not in any way, however, interfere with his ability to attend to his work, nor cause him any pain or suffering. The traumatism received in the accident caused such a condition of shock to petitioner’s body 'that it predisposed him to the ravages of the conditions of arterio-selerosis and urinary disorder, with the result that the aforesaid conditions have been greatly aggravated and exacerbated, so that a condition of physical disability has developed and now exists which would not have resulted except for the accident. In addition, lie has pain in the region of the groin and terrific pain throughout his back, which has caused petitioner a marked limitation of motion and loss of function of: his whole body, ne has lost considerable weight since the accident, and has prematurely aged at least ten years on account of his injuries and pain and suffering.

10. The said injuries and loss of function are permanent and progressive.

11. I find that as the result of the accident he has suffered physical injuries and loss of function of the whole body, which at this time constitutes twenty per cent. (20%) of total and permanent disability within the purview of the Workmen's Compensation act.

12. Petitioner has received m> compensation either for temporary or permanent disability.

It is therefore, on this 9th day of October, 1924, on motion of Kent & Kent, attorneys for the petitioner, ordered- — •

1. That the respondent pay, or cause to be paid, to petition, the sum of $17 per week for the period commencing January 5th, 1924, to April 7th, 1924, being thirteen weeks, making a total of $221, which sum represents compensation as and for temporary disability, and, since the full amount thereof is past due, that the same be paid in a lump sum immediately.

2. That the respondent pay, or cause to be paid to petitioner, the sum of $17 per week, for a period of one hundred weeks, commencing April 7th, 1924, making a total of $1,700, which- sum represents compensation for permanent disability, being twenty per cent. (20%) of total permanent disability within the purview of the Workmen’s Compensation act, and that the sums due to- date be paid in a lump sum immediately, and the balance thereof at the rate of $17-per week, until the full amount is paid.

3. That the respondent pay, or cause to- be paid to petitioner, the sum of $23, being legal disbursements incurred for medical treatment, as follows: Dr. Holden, $15; Dr. Wyckoff, $8.

4. That counsel fee of $200 be and the same is hereby allowed to Kent & Kent, attorneys for the petitioner, as and for the reasonable value of their sendees herein, for the reason that, in my judgment, the services of the attorneys were and became absolutely necessary for the proper presentation of the claim of the petitioner herein. The case required extensive examination, preparation and proof as to medical questions presented, and required the taking of testimony on two separate hearings. The said sum is assessed against the respondent, in addition to the award herein, and shall he paid to Kent & Kent in a lump sum immediately.

o. That the respondent pay, or cause to be paid to Kent & Kent, attorneys, the sum of $10, being legal disbursements incurred for stenographic services herein.

6. This rule for judgment shall be filed, entered and docketed as and for a judgment of the Hudson county court of common pleas.

John J. Stahl.

Referee, Workmen s Compensation Bureau.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    Tony Chmiel, also known as Tony Hunel, petitioner, v. Hayden Chemical Company, respondent.
    Injury to Eyelids — Temporary Only — Compensation Therefor Paid — Petition for Compensation for Permanent Injury Denied.
    Oil determination of facts and rule for judgment.

      Mr. Vincent J. Paterno, for the petitioner.

      Messrs. McCarter & English, for the respondent.,
   * * * I do find and determine, from the evidence taken in this cause, as follows:

L. That the petitioner was, on tire 13th day of October, 1923, in the employ of the respondent as a laborer, and receiving wages of $19.20. a week.

2. That on said day petitioner sustained an accident arising out of and in the course of his employment, to> wit: while placing ice in a kettle the ice slipped, causing some kind of liquid to splash in petitioner’s face in the vicinity of his eyelids.

3. That petitioner was paid temporary compensation by the respondent, amounting to eleven and three-sevenths weeks, amounting to $146.20.

4. That petitioner suffered no permanent disability arising out of said accident, and that prior to' the expiration of the temporary payments made bjr respondent, petitioner was discharged as cured by Dr. Hennion and advised to return to work.

It is therefore, on the 21st day of October, 1924, on motion of McCarter & English, attorneys for respondent, ordered that the petition in the above-entitled cause be and it is hereby dismissed and judgment entered in favor of the respondent.

William B. McMichael,

Referee.


text:
    New Jersey Department of Labor. Workmen’s Compensation Bureau.
    John J. Murnighan, petitioner, v. General Baking Company, respondent.
    Automobile Accident to Employe Driver — Injury to Head and Nervous System.
    On petition, &c. Determination and order

      Messrs. Pomerehne, Laible & KauLz, for the petitioner.

      Messrs. Lindab/ury, Bepue & Paulks, for the respondent.
   * * * 1. Petitioner on the 3d day of August, 1933, while in the employ of the respondent, and in the course of his employment as automobile mechanic, was driving an automobile truck of the respondent along Front street, in the city of Plainfield, New Jersey, and while driving along said street the right front wheel of said truck came off, throwing the petitioner through the windshield to the sidewalk, striking his head and causing the injuries, which form the basis of this action.

3. His employers were immediately notified and ho was sent to Muhlenberg Hospital, in the city of Plainfield, where he was treated and sent home.

3. Petitioner sustained an injury to his forehead, which has caused a scar almost in the centre of the forehead about three inches in length and one-half inch in width and a great shock to his nervous system, which caused him severe shooting pains in the head and a general physical weakness, as a result of which he was confined to his home for several weeks and is still unable to resume employment.

4. This condition continuing, the petitioner received the attention of doctors engaged by the respondent, and also of physicians engaged by himself, which physicians, after a series of diagnoses and treatments, pronounced his case as that of general disability due to loss of strength coupled with acute traumatic neurosis.

5. I find from the testimony of the petitioner, which is entirely uncoutroverted, that the petitioner was, before the. 3d day of August, 1922, a strong, healthy young man, who was constantly engaged in laborious work, and that he was industrious and worked continually until the date of his injury.

6. I find also- that after the injury, and notwithstanding his impairment, he returned to work for the respondent and worked there until the 13th day of April,' 1923, and then sought other employment at divers places, but was unable to continue because of his weakness and. general condition.

7. I find that the petitioner is suffering from traumatic neurasthenia from the history of the case and the still existing symptoms from which he complains.

8. I further find that the petitioner is still unable to resume work, and is entitled to temporary disability from the 3d day of August, 1922, to the 14th day of October, 1924, at the rate of $17 per week.

9. I do further find that the respondent has. paid to the petitioner compensation up to. tire 13th day of Majr, 1924, for which the respondent should have credit, making a total temporary disability still due to the petitioner of twenty-two weeks a.t $17 per week.

10. I further find that the petitioner has a disability (partial in character' and permanent in quality) by reason of impairment of his physical function, by reason of which Ire is entitled to compensation at the rate of $17 per week for a period of thirty weeks, based on six per cent, of total disability.

By reason of the aforementioned findings, I do therefore order the respondent to pay to- the petitioner the sum of $17 per week from the .13th day of May, 1924, and hereafter until the sum of $884 shall have been paid to the petitioner, together with the sum of $100 counsel fee.

I do further order the respondent to pay immediately upon the signing of this order the sum of $306, together with the counsel fee, being the amount of temporary disability due since May 13th, 1924, to the 16th day of September, 1924.

Dated October 9th, 1924.

Hakey J. Goas.

Deputy Commissioner.


text:
    New Jersey Department of Labor. Workmen's Compensation Bureau.
    George Hotz, petitioner, v. Baker Paint and Varnish Company, respondent.
    Hernia — No Complaint on Day of Accident — Five Requirements in Reference to Hernia not Complied With — Petition Dismissed.
    On petition for compensation. Finding of facts a determination. Order of dismissal:
   * * * In his petition, petitioner, George Hotz, alleges that on the 16th day of May, 1924, he sustained a double hernia.. The respondent produced several witnesses, who- testified that petitioner neither complained of any injury on that -day, nor stopped work, except at the usual time, which was five p. jr. It.is quite clear that the five requirements in reference of hernia, as contained in subdivision (x), paragraph 11 of the act, have not been, complied with by the petitioner.

I, therefore, find in favor of the respondent, Baker Paint and Varnish Company, and against the petitioner, George Hotz, and dismiss the petition.

John J. Stahl,

Referee.