author: Acjkerson, S. C. C.

text:
    DANIEL O’REGAN AND WILLIAM GEORGE, PLAINTIFFS, v. JULIAN H. SCHERMERHORN ET AL., DEFENDANTS.
    Decided November 6, 1946.

      For tlie plaintiffs, Frank G. Sohlosser.

    For the defendants, Mark Townsend, Special Deputy Attorney-General.
   Acjkerson, S. C. C.

The plaintiffs in the above entitled actions are the former Prosecutor of the Pleas of the County of Hudson and the former Assistant Prosecutor, both having served in their respective capacities from February 4th, 1934, to February 4th, 1944. They are suing the twenty-three members of the December term, 1944, grand jury of that county for libel, specifically alleging in their respective complaints that said defendants “* * * did compose and publish a certain false, scandalous, malicious and defamatory libel of and concerning the plaintiff [in conducting criminal proceedings against one John E. Longo], containing among other things” the following:.

“ ‘The Prosecutor, Mr. O’Eegan, and his assistant, Mr. George, were derelict in their duty in suppressing the Hartkorn report and not calling Hartkorn as a witness, and thus depriving the defendant [Longo] of the opportunity of any benefit of this testimony. In this they were violating Canon 5 of the Canon of Ethics of the American Bar Association, which states that, “The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that Justice is done. The suppression of facts or the secreting of witnesses capable of establishing the innocence of the accused is highly reprehensible.”

“ ‘This Canon has been upheld by the United States Supreme Court.’ ”

The defendants have appeared by attorney who endorses their joint answer to each complaint as follows: “Mark Townsend, Deputy Attorney-General, Attorney for Defendants.”

The subject-matter of these answers is contained in fourteen separate defenses, the first of which attempts to answer specifically each paragraph of the complaint to which the answer is addressed, whereas the others raise separate and distinct defenses.

This matter came before the court originally on motions by the respective plaintiffs to strike these answers, or parts thereof. At the oral argument the defendants were permitted, by order of the court, to supplement their answers by pleading objections that the suits had been brought prematurely and plaintiffs were given leave to reply thereto or move to strike the same as though within the scope of their original, motions. At the same time the filing of such supplements to the answers was to be considered as cross-motions by the defendants to strike the respective complaints without further notice. The plaintiffs have now elected to press their original motions as though including an attack upon the aforesaid supplemental matter, and the defendants are pursuing their cross-motions to strike the complaints.

Since the pleadings in each of these cases are practically the same, these motions have been argued and will be eonsicicred in this memorandum as though involving but a single case brought by the plaintiffs jointly.

We will start by considering the defendants’ cross-motion to strike the complaint. The first point is that the complaint is legally insufficient because the ad damnum clause specifically demands “$100,000 from each of the defendants,” whereas the complaint consists of but one count in which the defendants are charged as joint tort feasors and not severally. It is, therefore, argued that in order to seek $100,000 from each defendant, it is necessary, either to have separate suits against each defendant, or separate counts in the complaint against each one. This objection, althongh technical, seems to be well taken, Cf. Consolidated Traction Co. v. Whelan, 60 N. J. L. 154; 37 Atl. Rep. 1106; Ross v. Pennsylvania Railroad Co., 5 N. J. Mis. R. 811; 138 Atl. Rep. 383. The plaintiffs in their brief, anticipating such a conclusion, ask leave to amend the clause in question so that it will demand one amount from the defendants jointly Such permission is granted and we will proceed as though the amendment had already been ma.de. However, if it is not filed within the time hereinafter specified, the complaint will be stricken.

Tlie defendants further insist that the complaint does not state a cause of action because it discloses that the publication therein complained of consisted of a presentment or report delivered by the defendants, as members of the grand jury, to the Court of Oyer and Terminer which accepted and filed it, and since it is not alleged that the defendants in so doing were acting in “clear absence of all jurisdiction,” or “without colorable jurisdiction,” the publication is absolutely privileged and the defendants protected from liability under the judicial immunity rule pronounced in Grove v. Van Duyn, 44 N. J. L. 654, and Valentine v. Englewood, 76 Id. 509, 517; 71 Atl. Rep. 344.

Suffice it to say that the foregoing phrases concerning jurisdiction are mere conclusions of law and would be valueless if inserted in the complaint, the legal sufficiency of which must be appraised by the pleaded facts. Furthermore, and most important on this phase of the matter, the complaint does not disclose, as defendants claim, that the so-called presentment or report was presented to the Conrt of Oyer and Terminer nor that said court accepted and filed it. The allegation concerning publication is merely that the defendants, “members of the said December Term, 1944, Grand Inquest * * *, did compose and publish” the defamatory matter which is the subject of complaint. So it does not appear on the face of the complaint that the publication was made by presenting the subject-matter thereof to the court, nor in the course of judicial proceedings, nor as the result of official action by the defendants. It remains for the defendants to allege these matters in a defense of privilege.

This also disposes of the defendants’ further contention that the complaint should be stricken because a cause of action cannot accrue until after the document in question, which is an official record, has been expunged from the records or files of the court to which it was returned. The complaint on its face does not disclose a factual basis for such an objection.

Turning now to the plaintiffs’ motion addressed to the answer we find that their first contention is that the entire answer should be stricken on the ground that it is beyond the power and. authority of the Attorney-General and his deputy to defend this suit on behalf of the former grand jurors because it is conceived that R. S. 52:17A-4; N. J. S. A. 52:17A-4, limits him to the defense of officers and instrumentalities of the state government and that the defendants do not fall within such classification. Therefore it is insisted that the answer is improperly filed.

It is settled in our state that the Attorney-General has all the power invested in his office at common law except as modified by constitutional or statutory regulation. Public Utility Commissioners v. Lehigh Valley Railroad Co., 106 N. J. L. 411; 149 Atl. Rep. 263.

At common law, as the chief accredited legal adviser of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require. State v. Robinson, 101 Minn. 277; 112 N. W. Rep. 269, 272; 20 L. R. A. (N. S.) 1127, 1132. He is invested with a broad discretion in determining what matters may be of interest to the public generally. Mundy v. McDonald, 216 Mich. 444; 185 N. W. Rep. 877, 880; 20 A. L. R. (Anno.) 393, 401.

Our statute respecting the office of Attorney-General is R. S. 52:17A-1, et seq. (Pamph. L. 1944, ch. 20, p. 50); N. J. S. A. 52:17A-1, et seq., which created a new Department of Law to be administered by the Attorney-General. Section 4 thereof, N. J. S. A. 52.17A-4, provides that “The powers and duties of the Department of Law shall be the powers and duties now or hereafter conferred upon or required of the Attorney-General, either by the constitution or by the common and statutory law of the State, and as specifically but not exclusively as detailed herein, to wit: * * *. (c) * * * and shall exclusively attend to and control all litigation and controversies to which the State is a party or in which its rights and interests are involved. * * * . (g) Attend generally to all legal matters in which the State * * * is a party or in which its rights or interests are involved.”

So we see that the statute does not restrict but rather reaffirms the common law authority of this official to attend to all legal matters in which the people of the state are interested. It is too narrow a view of the case sub judice to say that the people of the state at large are not interested, as citizens, in the defense of a case of this nature which involves the legal rights and liabilities of members of grand juries generally, who represent the people of the entire state, and serve by compulsion of law and not voluntarily. Certainly if the people of the state can be said to be interested in their grand jury system and the unfettered operation of it within lawful limits, they are, we think, equally interested in this action growing out of it, depending, as it does, on whether the acts of the defendants, as grand jurors, and therein complained of, were judicial acts, and, therefore, within the rule of immunity from civil liability which public policy has provided for their protection. Mundy v. McDonald, supra. Parenthetically it may be judicially noticed that at the time of the institution of the present action the Attorney-General was conducting the office of Prosecutor of the Pleas of Hudson County by virtue of section 4(f) of the last mentioned statute because of a vacancy in that office.

We conclude that the present litigation goes to the root of our grand jury system and involves questions in which the interests of the people of the state are concerned. Therefore the action of the Attorney-General, through his deputy, in appearing for the defendants herein was not without legal authority, and the answer, so endorsed, cannot be stricken on the ground asserted by the plaintiffs.

Plaintiffs next move to strike several parts of the first separate defense and all of the other separate defenses, except the third, fifth, eleventh and thirteenth, on grounds now to be considered.

As already stated, the first separate defense attempts to answer specifically each numbered paragraph of the complaint, and accordingly each of'such attempted answers is given a number corresponding with the -numbered paragraph of the complaint to which it is addressed, and in some instances these answers are divided into subparagraphs.

Several parts of this first separate defense are objected to for various reasons, mostly of a technical nature, which need not be elaborated upon here. Suffice it to say, for present purposes, that the second and fourth subparagraphs of paragraph 2 of the first separate defense must b'e stricken because they call upon the plaintiffs for proof of matters not charged in the complaint, and seek to retry the criminal matter out of which the alleged libel herein complained of arose. They are, therefore, in violation of rule 39 of this court, N. J. S. A. Tit 2.

Paragraph 4 of the first separate defense, except the specific admission ‘therein,, is an evasive denial of the fourth paragraph of the complaint, and an attempt to compel plaintiffs to prove matters not charged in their complaint, in violation of rules 46 and 39 as claimed by the plaintiffs. Such objectionable matter will, therefore be stricken.

The second subparagraph of paragraph 5 of this defense is an attempted denial of a matter not alleged in the corresponding paragraph of the complaint. Purthermore in this subparagraph of their answer to the George complaint the defendants, by using a double negative actually affirm what they presumably intend to deny. On the whole this pleading is obscure, uncertain and irregular under rule 39, and constitutes an evasive denial under rule 46. While these are not the reasons advanced by the plaintiffs for such action, nevertheless, the court of its own motion will strike the criticised pleading upon such grounds. Mt. Pleasant Cemetery Co. v. Erie Railroad Co., 74 N. J. L. 100, 103; 65 Atl. Rep. 192.

Paragraph 6 of this defense, after denying the allegations of the corresponding paragraph of the complaint, goes on to state a conclusion of law without specifying the facts on which it is based. All thereof, except the express denial therein, will therefore be stricken by the court of its own motion as frivolous. The point attempted to be made in the matter thus stricken is available under the general denial.

Paragraph 7 of the first separate defense will also be stricken, except the direct admission therein, because the remainder thereof fails to admit, deny, or to assert a lack of knowledge of the remaining allegations of that portion of the complaint to which it is addressed, yet calls upon plaintiffs for proof thereof in violation of rule 34.

Paragraph 8 of this defense, except the express denials contained in the first and last paragraphs thereof, attempts to relate the steps taken by and the evidence produced before the defendants, as grand jurors, in investigating the conduct of the plaintiffs as prosecuting attorneys of Hudson County in the prosecution of a criminal charge against one John R. Longo, resulting in his indictment, trial and conviction. It is then asserted that the defendants, as such jurors, ‘'“believed,” from the evidence before them, including that of the plaintiffs themselves, in the truth of the statements contained in the document which is the subject of this action. However, belief in the truth of defamatory words is not sufficient to sustain a plea of justification (truth). Benton v. State, 59 N. J. L. 551, 561; 36 Atl. Rep. 1041; 13 Am. & Eng. Encycl. L. 385, 386. While possibly the defendant in a libel action may plead in mitigation of damages, and not by way of denial of the right of action, his honest belief in the truth of the publication, nevertheless it should clearly appear that it is so pleaded, and the pleading should not set forth the evidence upon which the belief is based, Schwarz Bros. Co. v. Evening News Publishing Co., 84 N. J. L. 486, 496-497; 87 Atl. Rep. 148. It cannot be so pleaded in any event unless punitive damages are claimed. Knowlden v. Guardian Printing and Publishing Co., 69 N. J. L. 670; 55 Atl. Rep. 287. The pleading here under consideration appears to assert belief in the truth of the publication as a complete defense. At least it is not clearly pleaded as in mitigation of damages. But if the latter is intended the plea is nevertheless defective because it details the evidence upon which the alleged belief is rested.

Hor can this pleading be sustained as a plea of qualified privilege because the necessary element of lack of malice is not properly alleged. Mere “belief” in the truth of a statement is not the legal equivalent of lack of malice in making it, because such belief .negatives only one ground upon which malice in fact might be presumed, for, even with such belief, the communication might be malicious on other grounds. McKnight v. Hasbrouck, 17 R. I. 70; 20 Atl. Rep. 95; Lapetina v. Santangelo, 124 App. Div. 519; 108 N. Y. Supp. 975; 37 C. J. 46, § 385(c); 33 Am. Jur. 230, § 248.

All of paragraph 8 of the first separate defense, except the first and last subparagraphs thereof, will therefore be stricken as not setting forth a legal defense.

We come now to the second separate defense which is attacked as insufficient in law. It alleges that all statements of fact contained in the publication which is the subject of this litigation “were substantially true.” Technically this is insufficient for the words complained of must be “true in substance and in fact” to constitute the defense of justification. Odgers on Libel and Slander (6th ed.) 518; Schwarz Bros. Co. v. Evening News Publishing Co., supra (at p. 489); 87 Atl. Rep. 148. The form of such a plea is given in Bullen & Leake (at p. 840), and in Odgers (at p. 647, form 40).

The second separate defense will therefore be stricken1 as insufficient in law. This ruling, however, does not deprive the defendants of a plea of justification, for the third separate defense' alleges that the words complained of “were true,” and this pleading is not attacked on this motion.

The fourth, seventh and fourteenth separate defenses plead privilege, and, since that presents the most interesting and important question presently before us, and merits more extended treatment, it is convenient to defer consideration, thereof until after the other questions arising on his motion have been disposed of.

The sixth separate defense avers that “All comment and criticism made or published by the defendants,” as grand jurors, “concerning the conduct of the plaintiff,” as a prosecuting attorney, “were fair and bona fide comment and criticism” of such conduct. This pleading is attacked as insufficient in law.

Matters of public interest and concern, such as the public acts of a public man, are legitimate subjects of criticism, and everyone has the right to comment thereon so long as he does so fairly and without malice. However, what is thus privileged, if we may use that term, is the comment and criticism, and not the statements of fact on which they are based. So if the latter are not true the former are not privileged. Schwarz Bros. Co. v. Evening News Publishing Co., supra (at pp. 494-496); 87 Atl. Rep. 148. Lindsey v. Evening Journal Association, 10 N. J. Mis. R. 1275, 1280; 163 Atl. Rep. 245; Burnham v. Hornaday, 130 Misc. 207; 223 N. Y. Supp. 750, 762.

Therefore, where 'the communication contains both statemenfs of fact and comment thereon, it is necessary to aver the truth of the former in order to support a plea of the latter. Foley v. Press Publishing Co., 226 App. Div. 535; 235 N. Y. Supp. 340, 350; Cohalan v. New York World-Telegram Corp., 172 Misc. 1061; 16 N. Y. S. (2d) 706, 710.

The publication here complained of consists, in part at least, of statements of fact—charges of official misconduct— and this pleading does not aver the truth thereof in support of the privilege claimed for any comment thereon. It should have been pleaded, in effect, that the allegations of fact in the document in question are true and of public interest, and that the comments thereon arc fair and- made without malice. The allegation of truth under such circumstances is confined to the facts averred, and the averment as to the comments is not that they are true but only that they are made in good faith and do not exceed the proper standards of criticism and comment upon such matters. This is not setting up two defenses in one plea-—-justification and fair comment—for the averment of truth is merely to lay the necessary basis for the defense on the ground of fair comment, since the latter depends upon the former. Under such circumstances only the defense of fair comment is thus pleaded. Foley v. Press Publishing Co. and Cohalan v. New York World-Telegram Corp., supra.

The sixth separate defense, in its present form, does not set forth a legal defense, and will be stricken for that reason.

The eighth, ninth and tenth separate defenses in alleging that this action is against public policy and that the sole remedy is in the court in charge of the grand jury, are only pleading conclusions of law, and, as such, they are not admitted by this motion. Koewing v. West Orange, 89 N. J. L. 539, 540; 99 Atl. Rep. 203; Marples v. Standard Oil Co., 71 N. J. L. 352, 353; 59 Atl. Rep. 32. They will therefore be stricken as not stating legal defenses. The substance of the pleas of public policy (eighth and ninth separate defenses) is covered by the defense of privilege appearing elsewhere in the answer.

The twelfth separate defense alleges that “The statements and presentment concerning the plaintiff, made by the defendants” as members of the grand jury, “were not intended to mean and were not reasonably understood to mean the innuendos alleged by the plaintiff.”

This attempts to put in issue the defamatory sense of the words complained of, but the defendants’ “intention” with respect thereto is not a proper element of such a defense. This pleading will therefore be stricken as frivolous. The proper form for such a plea is indicated in Schwarz Bros. Co. v. Evening News Publishing Co., supra (at p. 489); 87 Atl. Rep. 148.

■ This brings us to the supplemental answer filed by perinission of the court as hereinbefore mentioned. It consists only of an “objection in point of law” pursuant to rule 40. The point thus reserved is that the present action is premature for the reason that the document in question, having been presented to and accepted by the Judge of the Court of Quarter Sessions of Hudson County, is a judicial record of that court, and until it is stricken as such, the plaintiffs cannot maintain any action against these defendants in respect to or arising out of the same.

The plaintiffs now move to “strike” this reserved point as though included within the scope of their original motion.

The reservation of a point of law under rule 40 is analogous to a demurrer at common law and not an affirmative defense. Cf. Koewing v. West Orange, 89 N. J. L. 539, 540; 99 Atl. Rep. 203. And it has been held that a motion to strike out the causes of demurrer is not recognized in our practice. French v. Armstrong, 80 N. J. L. 152; 76 Atl. Rep. 336. The proper practice, with respect to such a reservation, as indicated by rule 40, is to move the court to “determine the question so raised before trial,” and not to “strike” the reservation as in the case of an affirmative defense.

Plaintiffs’ said motion will therefore be denied without prejudice.

There remain for consideration the fourth, seventh and fourteenth separate defenses which attempt to set up, in different ways, that the words complained of were published by the defendants as members of the grand jury under circumstances which rendered them “privileged.”

The plaintiffs move to strike these pleadings generally as failing to set forth any defense sufficient in law, and specifically that the type of privilege, whether absolute or qualified, is not designated therein by either of said terms.

While it is necessary, of course, that a special plea of privilege shall contain facts sufficient to show that the publication was made on a privileged occasion, nevertheless it is not essential to such a plea that the word “privilege” be used therein, for this is but a legal conclusion from the facts stated. Salinger v. Cowles, 195 Iowa 873; 191 N. W. Rep. 167, 173; 37 C. J. 46, § 385. It follows, for the same reason, that the type of privilege claimed need not be stated since this would appear from the pleaded facts. An indicia of the type of privilege involved is to be found also in the circumstance of whether lack of malice in the publication is alleged. An allegation of lack of malice is necessary, under our Practice Act, in a special plea' of qualified privilege, but not in a plea of absolute privilege, where the protection arises because of the privileged occasion of the publication regardless of malice. 37 C. J. 46, § 385; Lapetina v. Santangelo, 124 App. Div. 519; 108 N. Y. Supp. 975, 977. Cf. Shaw v. Bender, 90 N. J. L. 147, 151; 100 Atl. Rep. 196. It doubtless would be better in such pleading to use the word “privilege” and specify the kind, but the necessary matters to be proven, and therefore pleaded, are the essential facts showing a privilge, Salinger v. Cowles, supra, and in the case of a qualified privilege, that publication was without malice.

These particular defenses each use the word “privilege,” lack of malice is not alleged, and the pleaded facts otherwise indicate that if a technical privilege is claimed, it is an absolute one. Therefore these pleadings cannot be stricken on the ground we have been considering.

We conclude, however, that the fourth and seventh separate defenses must be stricken for other technical reasons of pleading.

The fourth separate defense alleges that “At the times mentioned in the presentment” the plaintiffs were the prosecuting officers of Hudson County and their conduct as such “was one of public interest and concern and this presentment complained of and made by the defendants, as members of the December, 1944 Grand Inquest, to the Court, were privileged.”

Preliminarily it must be noticed that the defense of fair and Iona fide comment upon and criticism of matters of public interest and concern and the defense of privilege are not identical—they are separate and distinct. In the latter ease the words may be defamatory, but the defamation is excused, by reason of the special occasion, on grounds of public policy, while in the former case the comment and criticism are not privileged by reason of the occasion in the strict legal sense. What is really meant is that such comment and criticism, if fair, made in good faith and founded on fact, are .not defamation of the plaintiff, and hence not libelous—the stricture or criticism is not upon the person himself, but upon his work. Schwarz Bros. Co. v. Evening News Publishing Co., supra (at p. 495); 87 Atl. Rep. 148; Merrey v. Guardian Publishing Co., 79 N. J. L. 177 (at p. p. 184); 74 Atl. Rep. 464 (reversed on other grounds in 81 N. J. L. 632; 80 Atl. Rep. 331); Burnham v. Hornaday, 130 Misc. 207; 223 N. Y. Supp. 750, 762; Newell, S. & L. (4th ed.) 519.

Therefore, if we view this fourth separate defense as a plea of fair and bona fide comment and criticism, it is legally defective for failing to aver that the words complained of were of such a character, and also for the reasons hereinbefore stated in considering the legal validity of the sixth separate defense which specifically attempts to assert such a plea.

On the other hand, if we view this fourth separate defense as a plea of privilege, then, since it is not alleged that the publication was without malice, we must assume that an absolute privilege is claimed.

As such it is insufficient because, while it is asserted that the document in question was presented to the court by the defendants “as members” of the grand jury, it is not alleged, nor does it appear, that the subject-matter thereof, as set forth in the complaint, was ever officially before them, or was the result of their official investigation or action, or even of their own knowledge. It does not appear from this pleading that the document was the result of a judicial act in the course of a judicial proceeding so as to invoke the defense of absolute privilege. In this connection it should be stated that defendants’ answer nowhere incorporates a copy of the document in question or any part thereof, and the complaint sets forth only that portion thereof above quoted, and a complete copy is not otherwise before the court by any competent proof. Furthermore this fourth separate defense makes no reference to any other part of the answer and hence cannot be aided by any averments therein. Brooks v. Metropolitan Life Insurance Co., 70 N. J. L. 36, 39; 56 Atl. Rep. 168; Gross v. New York Central Railroad Co., 99 N. J. L. 414, 416; 125 Atl. Rep. 110.

The seventh separate defense alleges, in effect, that certain specified conduct of the plaintiffs, as prosecuting officers of Hudson County, in the case hereinbefore mentioned, was believed by the defendants, as grand jurors, not to have been in accordance with the proper administration of the offices so held by the plaintiffs, and, acting upon such belief, the defendants made the statements complained, which “did not and were not intended or mean to slander, libel or defame the [plaintiffs] and were, in fact, privileged.”

In the absence of an allegation of lack of malice, this also must be considered as a plea of absolute privilege, and as such it is defective for the reasons last above stated in considering the sufficiency of the fourth separate defense as a plea of absolute privilege. It is also incompetent, as such a plea, because it does not allege when and under what circumstances the actual publication in question was made, and this deficiency is not supplied by reference to any other part of the answer. So it cannot be determined whether it was made on a privileged occasion, which is essential to such a defense, particularly as the complaint lends no aid in that • respect. It is not alleged, in this defense, that the document was presented to the court, and, so far as appears, it may have been published by the defendants in a newspaper. Whatever may be said about the legal authority of a grand jury to present such matters as herein complained of directly to the court, it cannot be doubted that its publication otherwise than in court would not be accorded an absolute privilege.

The fourth and seventh separate defenses will therefore be stricken as frivolous.

We come now to the fourteenth separate defense which also pleads an absolute privilege. It is based upon the assertion that the defendants, acting officially as a grand jury, presented the document in question to the court as the result of an official investigation into a charge that the plaintiffs, as prosecuting officers, had suppressed or concealed evidence in their possession indicating the innocence of the accused in certain criminal proceedings which the plaintiffs had been conducting against him. And in which investigation by the grand jury the plaintiffs had appeared and been sworn as witnesses.

The plaintiffs attack this pleading on the ground that it does not set forth any defense sufficient in law. They contend that the defendants, as grand jurors, acted without legal authority in presenting or reporting such matters to the court, reflecting unfavorably on the official conduct of the plaintiffs, without indicting them or resulting in their indictment. From this it is argued that such action, being without authority of law, was not a judicial act, and, therefore, the statements involved therein are not entitled to the absolute privilege accorded by law to pertinent statements made in the course of judicial proceedings, and the defendants are not immune from civil liability for their publication. This presents the most important and interesting legal question in the case.

In this state the grand jury system is a creature of the common law and there are no statutes respecting the power and authority of a grand jury ezeept R. S. 40:189-1, N. J. S. A. 40:189-1, pertaining to the investigation, presentment and abatement of nuisances in the condition of buildings in cities, and R. S. 40:32-4; N. J. S. A. 40:32-4, pertaining to the investigation and presentment of improper construction of county buildings, neither of which is pertinent here.

The grand jury, at common law, is an arm of the court and acts for the court under which it is organized, and its proceedings are regarded as proceedings in the court. In re Schwartz, 133 N. J. L. 79, 84-85; 42 Atl. Rep. (2d) 564 (see eases cited). Its members are officers of the court and ezercise functions of a judicial nature and its proceedings are judicial within the meaning and operation of the law of privilege. Yates v. Lansing, 5 John (N. Y.) 282, 292; State v. Burney, 229 Mo. App. 759; 84 S. W. Rep. (2d) 659, 664; Yaselli v. Goff, 12 Fed. Rep. (2d) 396, 403; 56 A. L. R. 1239; affirmed, 275 U. S. 503; 48 S. Ct. 155; Sweet v. Post Publishing Co., 215 Mass. 450; 102 N. E. Rep. 660, 661; 47 L. R. A. (N. S.) 240, 243; Irwin v. Murphy, 129 Cal. App. 713; 19 Pac. Rep. (2d) 292, 293; Williams v. Journal Co., 211 Wis. 362; 247 N. W. Rep. 435; 33 Am. Jur. 144, § 148; Anno. 104 A. L. R. 1125, 1126. It naturally follows that they are entitled to the same legal privileges and immunities with respect to their judicial acts as the judge of the court of which they are a part. Yates v. Lansing, supra; Turpen v. Booth, 56 Cal. 65; 38 Am. Rep. 48; Yaselli v. Goff, supra (at p. 403); Phelps v. Dawson, 97 Fed. Rep. (2d) 339, 340; L. R. A. 1915E, 1055, note; Griffith v. Slinkard, 146 Ind. 117; 44 N. E. Rep. 1001, 1002.

It is settled by the great weight of authority, on considerations of public policy, that all officers exercising judicial functions are absolutely privileged in what they speak, write or do in the performance of their judicial acts, at least where such statements are relevant and pertinent to the matter before them. Such acts are judicial acts and cannot form the basis for money damages, if the officer had jurisdiction of the parties and jurisdiction or color of jurisdiction o£ the subject-matter, even though in exercising such jurisdiction he acts erroneously, illegally, irregularly or in excess of juris-' diction, and such acts are alleged to have been done maliciously and corruptly. Grove v. Van Duyn, 44 N. J. L. 654; Valentine v. Englewood, 76 N. J. L. 509, 517; 71 Atl. Rep. 344; Taylor v. Doremus, 16 N. J. L. 473, 476, 477; Mangold v. Thorpe, 33 Id. 134, 136; State v. Sheriff of Middlesex, 15 Id. 68, 70; Austin v. Vrooman. 128 N. Y. 229; 28 N. E. Rep. 477; 14 L. R. A. 138; Mundy v. McDonald, 216 Mich. 444; 185 N. W. Rep. 877; 20 A. L. R. (Anno.) 398; Houghton v. Humphries, 85 Wash. 50; 147 Pac. Rep. 641; L. R. A. 1915E, 1051 (see note) ; Valesh v. Prince, 94 Misc. 479; 159 N. Y. Supp. 598; Yaselli v. Goff, supra; Bradley v. Fisher, 13 Wall. (80 U. S.) 335, 352; Alzua v. Johnson, 231 U. S. 106, 111; 34 S. Ct. 27; Lange v. Benedict, 73 N. Y. 12, 25; Yates v. Lansing, supra; Pratt v. Gardner, 2 Cush. 63; 48 Am. Dec. 652; Spalding v. Vilas, 161 U. S. 483; 16 S. Ct. 631; Allard v. Estes, 292 Mass. 187; 197 N. E. Rep. 884, 889; Case v. Bush, 93 Conn. 550; 106 Atl. Rep. 822; Rush v. Buckley, 100 Me. 322; 61 Atl. Rep. 774, 778; 33 C. J. 982; 15 R. C. L. 549, § 33.

The underlying reason for this rule of privilege is not the judicial character of the officer but the judicial character of the act, and the public necessity that public agents engaged in the performance of a public duty under compulsion of law, should not suffer personally in performing a judicial act for an error of judgment which the wisest and most circumspect cannot avoid. Valentine v. Englewood, supra (at p. 517); 71 Atl. Rep. 344.

Jurisdiction, as here employed, means judicial power to hear and determine a matter, not the manner, method nor correctness of the exercise of that power. The State v. Sheriff of Middlesex, supra (at p. 70); Grove v. Van Duyn, supra (at p. 657); Bradley v. Fisher, supra, While a judicial act, or act of a judicial nature, means the actual exercise of this judicial power in the process of reaching a decision or conclusion in a particular matter. Bradley v. Fisher, supra.

All of the authorities hereinabove cited on this phase of the case clearly show that the importance of this distinction between jurisdiction and the exercise of it, so far as here pertinent, lies in the fact that, if the judicial officer does not have jurisdiction of the parties, or the case is not of a class of which he may have a jurisdiction, or there is not color of jurisdiction, any judgment he may render, or decision he may make therein, is void and judicial privilege cannot be claimed for his conduct therein because he never acquired legal authority to hear and determine the matter, and therefore it was not a judicial proceeding and his acts were not judicial acts. But if he has such jurisdiction or color of jurisdiction he is not personally liable for his acts in exercising it even though he acts erroneously, illegally or irregularly, nor is he liable if he acts maliciously, corruptly or negligently, or through ignorance or mistake of law or fact.

In Bradley v. Fisher, supra, Mr. Justice Field points out that (at p. 351), “A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction” and he goes on to say that (at p. 352) “where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgment may depend.”

In Grove v. Van Duyn, supra, our Court of Errors and Appeals was dealing with the rule applicable to the inception of jurisdiction when facts having color of legal value to invoke it were presented but where legal jurisdiction did not actually exist. In the course of the opinion, Chief Justice Beasley said (at p. 659) : “The assertion, I think, may be safely made, that the great weight of judicial opinion is in opposition to the theory that if a judge, as a matter of law and fact, has not jurisdiction over the particular case, that thereby, in all cases, he incurs the liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer having general powers of judicature, must, at his peril, pass upon the question, which is often one difficult of solution, whether the facts before him place the given ease under his cognizance, is as unreasonable as it is impolitic.” * * * (at p. 660) : “Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to the person affectéd by his decision, whether such decision be right or wrong. But when no facts are present, or only such facts as have neither legal value or color of legal value in the affair, then, in that event, for the magistrate to take jurisdiction is not, in any manner, the performance of a judicial act, but simply the commission of an unofficial wrong. This criterion seems a reasonable one; it protects a judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that is practically willful; such protection is necessary to the independence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression.” In other words there must be a clear absence of all jurisdiction before the conduct of an officer clothed with judicial power ceases to be a judicial act and civil liability attaches.’

In Valentine v. Englewood, supra, the court in passing upon immunity from suit of public health officers who had, in the exercise of their judicial functions, erroneously declared a quarantine, said (at p. 517): “It is enough if the matter is colorably, though not really within their jurisdiction.”

By the great weight of precedent, at common law, a grand jury has plenary inquisitorial powers, and may without instruction or authority from the court, and without complaint made before it, and of its own initiative investigate and diligently inquire into all alleged offenses against the criminal law-regardless of how the information on which it acts is brought to its attention. The broad scope of its powers is further indicated by the terms of the common law oath which is administered to its members at the beginning of their- term of service. United States v. Thompson, 251 U. S. 407; 40 S. Ct. 289; Hale v. Henkel, 201 U. S. 43, 62; 26 S. Ct. 370; Frisbie v. United States, 157 U. S. 160; 15 S. Ct. 586; People v. Graydon, 333 Ill. 429; 164 N. E. Rep. 832, 834; People v. Conzo, 301 Ill. App. 524; 23 N. E. Rep. (2d) 210, 213; Hitzelberger v. State, 173 Md. 435; 196 Atl. Rep. 288, 290; Coblentz v. State, 164 Md. 558; 166 Atl. Rep. 45; In re Julius Grunow, 84 N. J. L. 235, 237; 85 Atl. Rep. 1011. It may initiate an investigation based on its suspicion that crimes have been committed without any knowledge of the manner or description of the crimes or persons who may be involved, Hale v. Henkel, supra; In re Grand Jury Proceedings, 4 Fed. Supp. 283; United States v. McGovern, 1 Fed. Supp. 568, and without the necessity for a previous charge against anyone, In re National Window Glass Workers, 287 Fed. Rep. 219. The scope of its inquiries are not to be limited narrowly by questions of propriety or forecasts of the probable results of the investigation, or by doubts as to whether any particular individual will be found properly subject to accusation of crime. The identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury’s efforts, not at the beginning. Blair v. United States, 250 U. S. 273; 39 S. Ct. 468; Hendricks v. United States, 223 U. S. 178, 184; 32 S. Ct. 313; Hale v. Henkel, supra; People v. John Doe, 247 App. Div. 324; 286 N. Y. Supp. 343; affirmed, 272 N. Y. 473; 3 N. E. Rep. (2d) 875.

At common law a prosecuting attorney may be indicted .and punished for willful or fraudulent misconduct in office— malfeasance. State v. Jefferson, 88 N. J. L. 447; 97 Atl. Rep. 162; affirmed, 90 N. J. L. 507; 101 Atl. Rep. 569; 27 C. J. S. 410, § 17.

The pleading now being considered avers, inter alia, that “At the times mentioned in the complaint the defendants,” as grand jurors, “were inquiring and investigating into a charge before them as to the conduct of the plaintiff,” as a prosecuting officer, “in the indictment and conviction of John E. Longo for the crime of forgery * * * it having been charged against the plaintiff that he had suppressed or concealed evidence in his possession, indicating the innocence of the said John E. Longo * * *.”

The foregoing is admitted by reason of the form and for the purpose of the plaintiffs’ present motion. The defendants were thus confronted with a charge against the plaintiffs, at least suggestive of criminality, where the exercise of their inquisitorial powers might disclose the presence of a willful and fraudulent purpose to subvert justice, or the existence of a conspiracy to that end, or possibly the perpetration of a fraud upon the court, which would justify an accusation of malfeasance in office. Cf. State v. Longo, 134 N. J. L. 347, 348; 48 Atl. Rep. (2d) 853. The charge was not concerning the general conduct of a public office, nor the personal conduct of a private person, nor does the investigation which ensued appear to have been a general one in the nature of a “fishing expedition.” Both the charge and the investigation apparently were confined to a single instance or case of alleged official misconduct.

It thus appears that the defendants, as grand jurors, had jurisdiction to undertake an investigation of the matter thus called to their attention. In any event they were required by the very nature of the charge before them to decide whether it called for the exercise of their inquisitorial powers and this was essentially a judicial act, so far at least as the inception of jurisdiction is concerned, and therefore entitled the defendants to all the privileges and immunities surrounding such acts.

Having thus disposed of the question of inception of jurisdiction—the authority to investigate, to hear the matter—it naturally follows, in the absence of clear legal restrictions to the contrary, that the defendants had the further authority to reach a conclusion with respect thereto—the right to determine the course to be pursued with respect to the disclosures resulting from such investigation. This likewise would be a judicial act, which, if erroneously exercised, would be an error of judgment and would not detract from the judicial character of the act within the doctrine of Grove v. Van Duyn, Valentine v. Englewood and Bradley v. Fisher, supra. See, also, Austin v. Vrooman, supra, where the principle involved is thoroughly and forcefully presented.

However we will proceed to the further consideration of this latter question. In so doing it must be noted that the complaint herein avers that the words complained of charge the plaintiffs with having “committed the misdemeanor of misconduct in office,” i. e., a criminal offense, and also with unethical conduct in the performance of their official duties, not amounting to a crime. In either aspect, however, the plaintiffs insist that the grand jury had no lawful authority to report its findings to the court otherwise than by indictment.

The publication complained of is referred to indiscriminately in the pleadings and briefs as a “presentment” or “report,” and it is conceded that it is not an indictment. At common law an indictment originates at the instance of the state (the public prosecutor) and is formal in character, while a presentment is an informal accusation made by the jurors on their own knowledge, or upon the evidence before them, without having any formal bill from the public prosecutor. It is generally regarded in the light of instructions to the prosecuting officer upon which a true bill of indictment can be framed. The presentment merges in the indictment. If no indictment is found, the presentment ceases to exist for any purpose. In re Funston, 133 Misc. 620; 233 N. Y. S. 81, 83; In re Gardiner, 31 Misc. 364; 64 N. Y. S. 760, 761-762; 33 Words and Phrases (Perm, ed.) 459. If the prosecuting officer frames an indictment it is not necessary to refer it back to the grand jury. Nunn v. State, 1 Ga. 245; 1 Chitty’s Crim. Law, 134 star p. 163.

In the United States it has been the usage for the court to pass over presentments -winch the prosecuting attorney ignores and upon which he does not see fit to prepare an indictment. 17 Am. & Eng. Encycl. Law (2d) 1280; United States v. Hill, 1 Brock (U. S.), 156; 26 Fed. Cas. No. 15, 364; 1 Chitty’s Crim. Law, 134, star p. 163.

While it is true that the foregoing practice has fallen into disuse because it is now the duty of the prosecuting attorneys to attend grand juries and advise them in their investigations, nevertheless the practice is still recognized and sanctioned by the Constitution of New Jersey which provides in article 1, paragraph 9, N. J. S. A., that “No person-shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, * * It is further recognized in R. S. 2:178-12; N. J. S. A. 2:178—12, which provides that “* * * when the grand jury, * * *, desires to present any indictment or make any presentment, or to be discharged, the court of quarter sessions * * * may receive such indictments or presentments * $

While the pleadings herein do not set forth the whole of the document complained of, and it is not otherwise before us in its entirety by any competent proof, nevertheless the part thereof which is quoted in the complaint appears to be, in part at least, an informal accusation of misconduct in office of a public official. And if viewed as a presentment, then whether it technically charges a crime or not, it would seem that under the common law practice still sanctioned in New Jersey, the members of the grand jury in composing and presenting it to the court were performing a judicial act, and, therefore, the statements therein would be absolutely privileged under the authorities hereinabove cited. That an indictment did not follow would not, under such circumstances, detract from the document as a judicial act but would merely involve the manner and extent of exercising jurisdiction, which, if erroneous would not incur liability.

However, assuming, without deciding, that the document in question is-not a true presentment but merely a report to the court of the grand jury’s findings or conclusions with no-thought or purpose of procuring an indictment, the result would be the same so far as the protection. of privilege is concerned, because in composing and presenting it to the court the jurors were performing judicial acts in a judicial proceeding. Cf. Mundy v. McDonald, supra, 216 Mich. 444; 185 N. W. Rep. 877; 20 A. L. R. (Anno.) 398.

Many cases have been cited by the parties to support their conflicting contentions with respect to the authority of grand jurors to make reports or presentments reflecting upon the official acts of public officers without indicting them. Most of those cases, however, concern applications by the aggrieved parties to expunge such documents from the files of the courts to which they were returned.

For instance, in Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200; 150 N. W. Rep. 141; Ann. Cas., 1916E, 223; In re Osborne, 68 Misc. 597; 125 N. Y. Supp. 313; In re Wilcox, 153 Misc. 761; 276 N. Y. S. 117; In re Funston, 133 Misc. 620; 233 N. Y. S. 81; Ex parte Robinson, 231 Ala. 503; 165 So. Rep. 582, and In re Report of Grand Jury, 152 Md. 616; 137 Atl. Rep. 370, cited by the plaintiffs, the presentments or reports were expunged as being either without or in excess of authority. While in In re Grand Jury, 152 Fla. 154; 11 So. Rep. (2d) 316; Jones v. People, 101 App. Div. 55; 92 N. Y. S. 275, and in Application of Knight, 176 Misc. 635; 28 N. Y. S. (2d) 353, cited by the defendants, the courts refused to expunge such reports, holding that the jurors were not exceeding their jurisdiction in making them. In Irwin v. Murphy, 129 Cal. App. 713; 19 Pac. Rep. (2d) 292, although it was a suit for libel and not to expunge a report, the court expressly held that in making such a report the grand jury was acting within its jurisdiction. See, also, In re Heaty, 161 Misc. 582; 293 N. Y. Supp. 584, approving Jones v. People, supra, so far as the validity of such reports concerning public officials, as distinguished from private persons, are concerned, but expunging because the particular report was of the latter character. See, also, People v. Doe, 176 Misc. 943; 29 N. Y. S. (2d) 648.

It will be noted that Hew York cases are cited on both sides of the foregoing proposition, but In re Jones, supra, is the only one decided by an appellate court of that state and, therefore, in that jurisdiction, the law must be considered as favoring the validity of such reports concerning the alleged misconduct of public officials. It may be added that in New York the authority of grand juries is controlled by the Code of Criminal Procedure, where Part 4, tit. 4, § 260, provides, inter alia, that “The grand jury must inquire: * * * (2) Into the willful and corrupt misconduct in office of public officials * * But no provision is made for the return of reports of their investigations where no indictments are found. So, with respect thereto, the legal situation is the same as where the grand jury system is the creature of and controlled by the common law.

Cases -where such documents were expunged, however, are not in point on the question now before us, proceeding, as they do, on grounds not controlling in the present case. In deciding them the courts were not required to determine whether civil liability would attach to the jurors responsible for the statements in the documents thus expunged. The only problem before them was whether jurisdiction actually existed or had been exceeded. The question of the existence of color of jurisdiction was not involved in nor necessary to be considered in their disposition as it is in the case sub judice where its presence would make the presentment of the document in question a judicial act, and, therefore, entitled to an absolute privilege as such.

However the conflict in the foregoing authorities dealing with expunctions does have a definite bearing on the question before us, because it clearly and conclusively demonstrates at least the existence of colorable jurisdiction to investigate and report the matters in question. It appears, according to the averments in this pleading, that, in exercising their legitimate inquisitorial powers, these jurors were confronted with a state of facts which required them to decide whether they had lawful authority to proceed further in the matter and, if so, the manner and extent of such procedure. The decision depended upon their interpretation of their common law authority, which, in view of the conflict in the aforesaid cases with respect thereto, was unsettled, and also of novel impression in this state.

It seems plain, therefore, that their decision to proceed in the manner and to the extent which they did was properly a judicial act, and any error in deciding it was an error of judgment on a question of law for which the defendants are not civilly liable, and that the statements made in the course thereof, being relevant and pertinent to the subject-matter of the investigation, are absolutely privileged. To hold otherwise, in view of the allegations of this pleading, would be equivalent to saying that grand jurors, who serve by compulsion of law and not of their own volition, must decide doubtful questions concerning their jurisdiction at their peril, upon which questions even the courts have been unable to agree.

In Austin v. Vrooman, supra, the court said: “Here in the course of proceedings which he was forced to institute, and in the case of one over whose person he has properly acquired jurisdiction, the justice is confronted with the necessity of deciding a question depending upon the construction to be given to a statute, and that question must be decided by him one way or the other before he can take another step in those proceedings which up to that moment have been legally and properly pending before him, * * *. It seems plain that his decision upon the question is one in the course of a proper exercise of the jurisdiction first committed to him, and that his error in deciding that he had jurisdiction to proceed was an error of judgment upon a question of law, and that he is therefore not responsible for such error in a civil action.”

If this is so when jurisdiction is dependent upon the construction to be given to a statute, it cannot be otherwise where the question depends upon the interpretation of disputed principles of the common law.

It is a significant fact that, notwithstanding the number of cases dealing with expunctions of presentments and reports from the records of the courts for jurisdictional reasons, the diligence of counsel and the independent research of the court have revealed only six cases throughout the United States and England where libel suits were instituted against grand jurors, or agencies of the state exercising comparable powers, for making presentments or reports, reflecting upon official conduct, not followed by indictments.

In Rector v. Smith, 11 Iowa 302; Rich v. Eason (Tex.), 180 S. W. Rep. 303, and Bennett v. Stockwell, 197 Mich. 50; 163 N. W. Rep. 482, the right to maintain snch an action was upheld. And in Caruth v. Richeson, 96 Mo. 186; 9 S. W. Rep. 633, the right to maintain snch an action was not raised nor considered. While in Mundy v. McDonald, supra (judge acting in the capacity of a grand jury by statute), and in Irwin v. Murphy, supra, the right to such an action was denied.

However in the Rector and Rich cases the grand juries appear to have been purely statutory bodies, limited by such statutes to the returning of indictments only. Therefore they are not authoritative in the instant case because the reports there involved were in clear absence of all jurisdiction, and color of jurisdiction was not involved nor considered.

As already indicated, the Caruth case in Missouri is of no value here because the questions of privilege, color of jurisdiction, and judicial immunity were not raised nor considered, and the court was only called upon to determine whether the verdict in favor of the defendants was against the weight of the evidence.

The authority of the Bennett case was considerably weakened and confined, if not overruled, by the later case of Mundy v. McDonald in the same court which applied the rule of colorable jurisdiction in upholding a plea of absolute privilege. The reasoning in this later case is in harmony with the doctrine of the Grove and Valentine cases in our own state and is particularly applicable to the case sub judice.

There a judge, acting as a one man grand jury, pursuant to a Michigan statute, had filed with the clerk of the court a report of his investigation of the conduct of certain municipal officers in which he charged the mayor of the city with willful neglect of duty in failing to suppress vice, but stated that no reason was found for the issuance of criminal process, and, therefore, no indictments were returned. The mayor thereupon instituted a libel action against the judge, and on motion, in the nature of a demurrer, to strike the complaint, the demurrer was sustained and the complaint stricken. This result was affirmed on appeal in a well reasoned opinion in the course of which the court said: “Under the foregoing authorities, it must be held that the composing of and filing in the clerk’s office of the findings complained of as libelous were judicial acts requiring a decision on the part of the judge as to the proper course to be pursued. To hold that the acts were in excess of jurisdiction and, therefore for that reason subject the judge to private .liability, is to say that courts and judges must decide questions of jurisdiction at their peril. Such a doctrine would, in a large measure destroy the independence of the judiciary and take away the immunity and privilege considered so essential and necessary to the proper and just administration of law.”

In the sixth and last of the above mentioned libel suits, Irwin v. Murphy, the right to such an action was denied because the making of such a report was not considered in excess of jurisdiction.

While our own courts have not been confronted heretofore with libel suits of this unusual character, nevertheless we are committed to the doctrine of “colorable jurisdiction” and have gone to extreme lengths in applying its principles to the protection of officers exercising judicial functions—solely for reasons of public policy. Applying them now to the pleading in question, the conclusion is inescapable that the defendants, whether they erred or not in composing and presenting the document in question to the court, were, nevertheless, performing judicial acts in the course of a judicial proceeding. Consequently it must be held that the statements complained of are absolutely privileged and the defendants are immune from civil liability for their publication under the circumstances set forth in this pleading.

If the defendants, as grand jurors, erroneously assumed or exceeded jurisdiction in the matter, the plaintiffs may apply to the proper court to have the document expunged from its files. And if it be said that this is an inadequate remedy, the same could be said with equal force regarding an indictment which has been quashed for legal reasons, for the law furnishes no other remedy in such cases. It must be remembered that the ground on which the foregoing rule of privilege rests is that, if such an action as this would lie, all officers exercising judicial functions would lose their independence, and that the absolute freedom of such officers is necessary for the proper administration of justice. This freedom of action is given by law to such officers, not for their own sake but for the sake of the public, and for the advancement of justice; that being free from civil liability they may be free in thought and independent in judgment as all who are'called upon to administer justice ought to be.

Tor the reasons hereinabove expressed, the motion to strike the fourteenth separate defense is denied.

A form of order may be presented in accordance with the foregoing conclusions. The plaintiffs may amend the ad damnum, clause in their respective complaints, and the defendants may have leave to amend the eighth paragraph of the first separate defense (or to plead the amendatory matter as a new and distinct separate defense)’ and also to amend the sixth, tenth and twelfth separate defenses in their respective answers, provided all such amendments are filed on or before November 25th, 1946.


source: Caselaw Access Project

author: Ziegeneb, C. P. J.

license: Public Domain

text:
    Hudson County Court of Common Pleas.
    THOMAS JACKSON, PETITIONER-APPELLEE, v. MALLINCKRODT CHEMICAL WORKS, RESPONDENT-APPELLANT.
    Decided September 20, 1946.
    For the petitioner-appellee, Louis L. Saunders (John A. Laird, on the brief).
    For the respondent-appellant, Vickers & Gastelli,

   Ziegeneb, C. P. J.

This is an appeal from the determination, finding of fact and rule for judgment made by the Workmen’s Compensation Bureau, on November 20th, 1945, awarding compensation to Thomas Jackson, the petitioner, against Mallinckrodt Chemical Works, the respondent, for both temporary and permanent compensation, by reason of the contraction of mercury poisoning, during the course of his employment.

It had been stipulated that the rate of compensation would be $20 per week, and the issue was whether the petitioner had suffered an occupational disease, and whether there was a causal relationship between his disability and his employment, as contended by him, or whether his condition was eansed by the disease known as myasthenia gravis.

The petitioner testified at his home, before a Supreme ■Court examiner, due to the fact that he was bedridden. His age then was forty-five years, and he entered into his employment with the respondent on October 27th, 1927, as a utility man or laborer, at which time he was engaged in general chemical handling. His health had been good. He engaged in this work for about six years, or until the year 1934, when he commenced working with mercury proper, starting in the mill room where sieving of corrosive sublimate was done. In this work he was supplied with rubber gloves, a respirator and goggles. The corrosive sublimate came in corrugated drums weighing about 400 pounds each, from which it was removed with a rubber scoop, into the funnel of a shaker. It was then shaken into a keg in front and the residue entered the back of the shaker. In the course of this process some of the corrosive sublimate would spill on the petitioner. There would be a very heavy dust present, due to poor ventilation or suctions used to draw off the dust. The corrosive sublimate was a mixture of mercury and chlorine gas, known as bichloride of mercury, which at that time was in granulated form. He performed this process every day from Monday till Saturday, in building known as A 6. This dust got on •his body, under the goggles, on to his eyelashes and into his eyes, and also into his nose and mouth, irritating these parts acutely, causing a very stinging bite in the nostrils and making him sneeze; causing his eyes to water and sting very badly; and making it necessary to wash his mouth. It also got into his clothes and on his hands and neck, so that he could peel the skin off. He left this operation about the year 1936, when he went in another part of the same building as an operator, making corrosive sublimate, at which he worked until he was disabled on February 8th, 1943. As an operator he would begin in the morning by preparing his glasses, goggles and gloves; and by cleaning out the exhausts óf the receivers which were used to hold the corrosive sublimate of mercury bichloride which he made. He would clean out the exhaust and examine the receivers for cracks or leaks, and if there were none he would turn on the gas and then ascertain whether mercury was needed in the pans. In the process the chlorine gas and mercury would hum and corrosive would form. It would he blown into the receiver, where it would crystallize into corrosive sublimate. It was necessary for him to clean out the pipes which would become clogged with corrosive and in doing so,he would come in contact with a mercurial compound, some of which got over him due to pressure inside the receiver, which caused the light corrosive to fly all around in dust form.

That after he started the six receivers which he operated he would go to the mercury vault and get ten or twelve flasks of mercury which he would pour in the course of his work. As he removed the stoppers from the flasks a sharp bitter odor emanated. During the course of the day he would pour about sixty pounds of mercury in each of the receivers. Sometimes it would spatter as he was pouring it and it would get into his clothes and around his face. He also said that in the making of mercury recovery, which is the residue salvaged from the floor, he was exposed to mercury dust or mercury fumes. In this process the sweepings were placed in a keg and sieved and that the residue was put in a shoal and water; acid and iron were added and the mixture was cooked, and the sediment remaining after the liquid was removed contained the mercury which was filtered from the heavy mudlike residue. He smelled these fumes all day long. The fumes escaped from leaking receivers and emanated from the various parts thereof. At times the leaks were very had and large amounts of fumes would result. He would repair these leaks, and while so doing, would wear a regular gas mask instead of a respirator, in order to avoid choiring. The had leaks would occur about three times a month. Upon finishing work at night he had to wash his gloves, goggles and respirator to remove the corrosive sublimate or mercury bi-chloride. This was done in hot water which caused fumes to rise from the respirator, causing an odor to emanate which was similar to the one caused by the dust. In washing the hands a corrosive hand wash was used to remove the stings and bites, which he sometimes got from taking samples of the substance and at other times from washing.

On Wednesdays and Saturdays of each week the receivers would be cleaned, which was done by lining a box with Bakelite, and pushing the box against the back of the receiver from which the lid had been taken off, and the corrosive was pulled out with a hoe, coming out in lumps, granules and in powder form. The corrosive was then weighed and placed in trays in a dryer. In this process the corrosive sublimate, as it dropped into the box, caused light dust to form and fly about, some of which came in contact with petitioner’s goggles and neck. At other times the machine would clog up and it became necessary to clean out the exhausts. When the exhaust would clog fumes escaped. The apparatus was very bad and many leaks occurred in the beginning and until about three years before petitioner was disabled; but the apparatus had been greatly improved during the said final three years. Until these improvements were made a person could not walk into the plant without covering his mouth and nose.

Petitioner was in general good health when he went to work for the respondent, and he underwent periodical examinations thereafter, in the plant. He first noticed his illness in September, 1942, when his eyes were crossed. He continued to work until Christmas, 1942, when he experienced weakness in his legs, ankles, wrists, forearm, back, neck and fingers. Prior thereto he suffered from this condition slightly but about Christmas and Hew Year’s he stayed home for two weeks because he felt very had. He went to the doctor and then returned to work during the first week of January, 1943, and continued to work until February 8th, 1943, when he became disabled. He lost the use of his limbs and could not move. He was attended by a physician who administered injections of prostigmine bromide. His tongue swelled and his throat became affected and he had to be fed through the arm. He was required to use oxygen for breathing purposes; and unusual amounts of saliva collected in his throat and mouth and had to be swabbed out. He was unable to move his head into position and his nerves became badly affected. He could not hold anything without excessive trembling, and suffered from sleeplessness for a period of two months. He was admitted into Christ Hospital on April 30th, 1943, and remained there until July 10th, 1943. His eyes were badly affected and he could move them only very slightly from side to side. When he left the hospital there was very little improvement in his condition. Thereafter he improved very gradually until he could use his limbs a little and could see, However he was unable to do work of any kind. He said that he had never suffered from any venereal disease, syphilis, gonorrhea or any other sickness.

He was sent to Dr. Shook, the respondent’s doctor, who said he would not examine him that day as he would have to get in touch with the respondent first, but that he would let him know when he would have to come to the Medical Center. He did not go to the Medical Center as he was unable to do so, but he wrote the respondent a letter informing it of his inability to go to the said hospital, and requesting that a physician be sent to him, which request was refused.

On cross-examination petitioner testified that he was treated on February 8th, 1943, by Dr. Sinclair, and that he had also been treated by him previous to that date. He also said that he had received a communication from the respondent informing him that if he were going to Christ Hospital, or some other hospital, to be examined, it would pay the necessary expense but that it would not be responsible for Dr. Sinclair’s treatment or charges. He also said that he had a talk with respondent’s physician, Dr. Shook, who instructed him to continue on with Dr. Sinclair. Petitioner wrote the respondent that he was bedridden and unable to go to the Medical Center, but the respondent did not arrange to take him to the hospital, nor did it send any doctor to his home, until after he returned from the hospital.

Petitioner was corroborated by his wife, Mamie Jackson, as to the condition of his health, his illness and the treatment which he received. She said that in September, 1942, he started to get weak and his eyes began to fail, becoming very red, while the lids drooped; and that thereafter weakness of his muscles, arms, hands and legs set in; that it stayed that way for awhile, and then became worse, until the Christmas' holiday season, when he had to stay home. He went back to work after Hew Year’s and continued to February 8th, 1943, when he had to discontinue his work. He could hardly get around the house by himself and she had to help him in and out of bed and to the bathroom. When he came home on February 8th, 1943, he was assisted by some of his fellow employees, who brought him home in a car. She observed that he expectorated a great deal and that there was an excessive flow of saliva from his mouth; that his tongue was thick and that he mumbled instead of talking. She sent for Dr. Sinclair, who treated him from then to the present time. He had to get glasses; his eyes got crossed and he could not look straight, and could move his eyes only to the sides. He was sent to the hospital on April 30th, 1943, and when he returned on July 10th, 1943, he was still helpless. She said that before he went to the hospital he wrote a letter to the plant about receiving medical care. She also wrote a letter for him for the same purpose. An answer was received from the respondent to the petitioner’s letter, which is in evidence. She then testified about bills which she had received for hospital, medical and laboratory services, including a bill from Dr. Sinclair for $366.

On behalf of the respondent, Eobert B. Moore testified that he was employed by it for nine years and that he held college.degrees in chemical engineering; that he was employed in the corrosive sublimate process, also referred to as the bichloride of mercury process, of which he was the supervisor, and that he was a co-worker of the petitioner, who taught him the work; he described in detail the process. He said that from his personal experience he did not know whether Jackson was compelled to wear a gas mask, but that he was instructed to do so if it were necessary; also that in the ordinary process of manufacture Jackson was ordinarily not exposed to chlorine, except in the case of accidental breakage; that in regard to mercury he did not feel qualified to answer because he could not detect or smell mercury, as it could not be detected through the five senses, it being necessary to employ a special testing device to do so. When asked whether there might be any escape of mercury in a ease of breaks in the system, he said it was a very difficult question to answer. He described the manner in which tests were conducted for that purpose. In describing chlorine he said tliat it had a very sharp odor, very distressing and irritating to the nasal membranes, lie said that to his knowledge chlorine could cause skin irritation but that mercury could not; and that salts of mercury, as distinguished from the metal mercury itself, could be very highly irritating to the skin, eyes and mouth, and wherever it could enter. That the corrosive sublimate is formed by the reaction between metal mercury and chlorine, lie described the manner in which the atmosphere in the plant was controlled and changed to eliminate dust; and the efforts which were made to keep conditions good and workable in the room where the bichloride of mercury process is carried out. He said that this practice reduced the concentration of dust; that there were seven of the units of the type on which Jackson worked in the entire plant, but they were all confined to one room. He described the process of turning off the source of heat prior to cleaning out the exhaust tubes which became' clogged or stopped up with bichloride of mercury. This was done by waiting a specified time after shutting the units down, permitting the gas to cool off, so that in cleaning there would be no leakage of the chlorine gas or corrosive sublimate dust into the room. The cleaning of the tubes was an every day occurrence. These tubes were so designed that by removal of rubber stoppers an operator could poke through them with a long Bakelite rod and push the corrosive sublimate clogging the tube either into the bottle or back into the receiver from which it came; and if there were any escape of mercury it would undoubtedly be accompanied by an escape of chlorine gas; and that it was inferred if there were chlorine leakage there was probably also mercury vapor leakage. He described the procedure of the plant in sealing the leaks through which the chlorine and mercury escaped, adding that they had had no such leaks in close to two years.

On cross-examination he said that thermal shock caused breakage or cracks through which chlorine vapor substantially escaped and that mercury vapor might also escape there; that ordinarily the crack is small, and that only chlorine gas can escape through it but that if it were a little larger some corrosive particles of mercury might escape. That when the stoneware vessels cracked fumes from the corrosive sublimate escaped. In some cases the cracks can be repaired and it had been the custom in the past to repair the cracks, and they had found by experience that considerable time was lost in making repairs, and that it was therefore more economical to install new receivers instead of making repairs. That since they had adopted this practice the receivers have not been cracking. He was asked why, if the operator was not exposed to the vapor and fumes when the equipment was in a good state of repair, it was necessary to wear goggles, a mask and a respirator, and to take the other-precautions such as ventilation, exhaust systems and other safeguards, he said that these protections were used to provide additional precautions against bichloride, mercury and chlorine gas. He also said that the men were instructed to wash parts of the equipment at the expiration of each day, and that in so doing they could get some of the corrosive sublimate on their hands, and that this could have happened to the petitioner. That it was necessary for the operator to make six trips from the receiver to the dryer closet, with boxes containing the crystalized mercury or bichloride of mercury, which varied considerably in size from a fine powder to a large lump about the size of a fist, or larger. When these crystals are drawn out of the receiver with a hoe some dust arises, in connection with which a local suction is placed there to reduce or control the dust, but that there is some dust present, consisting of the bichloride of mercury; and that in spite of the precaution it is possible for the dust to reach the hands and face of the operator. It normally took three to four hours during the course of the day for an operator to clean out six receivers. A glass plate is placed upon the mercury in the pans (over the whole pan) as a precaution, to minimize the volatilization of the mercury, which would otherwise vaporize more rapidly. He did not know whether the ventilation entirely eliminated the mercury vapors. He said that the salts of mercury was a very corrosive and destructive substance to the tissues. The respondent provided a corrosive wash for employees who worked with mercury; also shower facilities, with instructions for the taking of a shower every night, for which purpose they were allowed a half an hour. Ho further said, that if the petitioner said that the salt of the mercury stung him around his mask on his face, and that sometimes his hands peeled because of the effect of the corrosive, it would be entirely possible and probable. In referring to the ventilation system he said that it could not completely remove all of the dust but that it did minimize it. He recalled the period of time that the petitioner was absent from his work during the Christmas holiday period in 1942, and said that when he reported back to work he was placed at the same work that he had done before.

Ernest Conte, called as a witness on behalf of the respondent, qualified as a chemical engineer, and said that since 1920 he had been chief chemist and safety director of the respondent company. That he knew the petitioner since about the year 1921, when he first came to the plant; and that the petitioner left sometime in 1924 and came back in 1927, since which time he had worked continuously for the respondent. He described the precautions taken to protect employees from injury caused by mercury. He said that powerful exhausts were used to remove the vapors and dust from the room, and further that precautions were taken to avoid injury caused by spilling mercury, saying that if one hundredth of a grain reached the eye it would cause such pain that you couldn’t see for awhile. He said also that dust would form while handling mercury with a scoop, and that a respirator was worn to prevent the dust from entering the system; that the dust might stay on the body, because of which protective creams and lotions were furnished to the employees. That it was known to the respondent that bichloride of mercury is corrosive and will destroy the tissues if it comes in contact with the skin. That mercury is definitely odorless, but that it is volatile with low pressure. He referred to his records showing injuries which the petitioner had received, one of which occurred on July 22d, 1935, when he got corrosive sublimate in his right eye; which records included absence from his employment for nine months in 1931, because of muscular weakness, but those records did not disclose the cause of said ailment. He also said that when there is a bad leak corrosive sublimate, formed by the combination of the chlorine and mercury, escaped. That the corrosive sublimate could be absorbed into the skin or through the skin into the body.

John Euska, testifying for the respondent, said that he had been foreman since 1930 and that he worked with the petitioner; that the petitioner left the employment in 1924 and returned in 1927; that in 1930 petitioner suffered from weakness and was unable to handle a five pound scoop of chemicals, with one hand; and that petitioner told him that he went to different doctors who advised him that they were unable to determine the cause of his condition; and that up to that time the petitioner did not handle any mercury. Petitioner left Euska’s department in 1934, and went to work in building A 6, manufacturing corrosive sublimate, since which time he had nothing further to do with him.

William W. Fuchs, testifying for the respondent, said that he had been employed by it for twenty-four years, in different positions; that he was an analytical chemist in charge of the laboratory, and that he was assistant plant manager, in charge of manufacturing. That petitioner became sick in 1930, and showed signs of physical weakness and was unable to do his work properly. That prior to 1930 he did not handle mercury but sometime thereafter he was transferred to building A 6, the corrosive sublimate department, where he was given the protection afforded all mercury operators. He described the safety equipment used and the instructions which governed men working with mercury, such as the use of separate lockers for street clothes and working clothes, taking of showers and the use of separate tooth brushes and dentifrice, and creams for skin protection. On cross-examination he said that all mercury is volatile and odorless and that when a leak occurred the operator would smell the chlorine gas and would know that he was heading for trouble if he did not shut off the unit. He said that the precautions described by him were taken because mercury dust or bichloride dust is highly corrosive, and the slightest trace of it on the skin causes an irritation; and that they insist that every man in the manufacturing department be allowed time to take a shower because of the hazard in mercury. That in washing their gloves the workmen are exposed to the corrosive and that an antiseptic solution is used for that purpose. He said that he had never come in contact with bichloride or mercury fumes, but that he had come in contact with the dust, and that it caused the nose and throat to sting. He was shown Exhibit P-1, the letter written to the petitioner in answer to his letter seeking medical care, and his attention was called to the statement that Dr. Shook, respondent’s doctor, desired him to retain his present physician, as he was not in a position to handle any more cases, and that he would try to have Dr. Shook get in touch with him. He acknowledged that the contents of the letter were correct.

The medical testimony was most voluminous and was given by Drs. Sinclair, Johnson, Alter and Meehan, for the petitioner, and Drs. Lewis, Kuoff, Kassel, Shook and Wolff, for the respondent.

Dr. Sinclair said that he examined petitioner on December 1st, 1942, and found him weak and extremely nervous, and suffering from sleeplessness and loss of appetite. That he was also suffering from muscular weakness, and had difficulty in walking to work, and his symptoms were becoming more aggravated. That he took a history of his employment and suspected that his condition was caused by mercury. That on February 8th, 1943, petitioner became bedridden and almost helpless, and had practically lost the use of his muscles. It caused him to be hospitalized. He said that he was 100% disabled and would never be able to work again. His diagnosis was chronic mercury poisoning manifested as severe muscular asthenia, generally known as myasthenia gravis, which he explained as weakness of the muscles to a severe degree. He was the treating physician. He said that it was reasonable to assume that the condition was caused by mercury, saying that it was quite frequent in such eases to have muscular weakness, extreme nervousness, ailments of the gums and tooth discolorations. He said that in his opinion, to a reasonable medical certainty, petitioner’s exposure to mercury was the competent, producing cause of his condition.

On cross-examination he said that he found no evidence of mercury in the system because no examination could be made for that purpose; that there was no mercury recovered from the urine or excretion. He said that the term myasthenia gravis was used by him to describe the generalized muscular weakness.

Dr. Johnson said that the major portion of his practice was confined to syphilis and dermatology; that he had examined the petitioner, at his home in December, 1943, and had come to the conclusion that he had chronic mercury poisoning, and gave the reasons'for his conclusions. He said that he had examined the hospital records, which gave the impression that the petitioner may have had neurosyphilis, but that in his opinion, from the tests described in the records, from his examination, and from the history of the case, petitioner was not suffering from syphilis. He estimated petitioner’s disability at 100% of total.

Dr. Alter said that he was a pathologist connected with various institutions, that he had worked on mercury poisoning cases, and qualified as an expert on the subject. He examined the petitioner on January 24th, 25th, and February 7th, 1944. He testified in detail about his examinations of the petitioner, his findings and the possibilities of the causes of petitioner’s condition, and said that he could exclude, as the cause thereof, such diseases as tabies, or neurosyphilis, multiple sclerosis, myasthenia gravis and bulbar palsy. He said that in muscle weakness myasthenia gravis is first suspected, but the disease usually occurs in women between the ages of twenty and forty years, and that he never heard or read of a single case in middle aged or elderly males; and that he had never seen a myasthenia gravis affect lower ex-tremeties with the exclusion of bulbar nerves, and added that the petitioner’s bulbar nerves were not affected while his lower extremeties showed extreme weakness. His diagnosis of petitioner’s condition was chronic mercurial poisoning, and he gave the technical reasons for his diagnosis, in detail. He said that the lesions which he found in his examination were entirely due to atrophy of the muscles, which confirmed his diagnosis and excluded myasthenia gravis, which he said, had no atrophy of the muscles. He was asked a hypothetical question containing the history of the ease, petitioner’s symptoms, his condition and his employment, as set forth in the testimony, which question he answered by saying, that in his opinion, the cause of petitioner’s condition was not the disease of myasthenia gravis. He explained in great detail the difference between that disease and mercurial poisoning. It was his opinion that petitioner’s exposure to mercury was the competent, producing cause of his condition. He estimated petitioner’s disability at 100% of total.

Dr. Meehan testified that he examined the petitioner at his home on July 19th, 1943, and found him in a weakened condition, unable to talk and walk, and confined to his bed. His speech was affected and he suffered tremors of his tongue, eyelids and fingers. He observed that the petitioner had lost the functions of his trunk; that his eyeballs were bulging, and that the left upper lid drooped; that he had inflammation of the gums and mouth, and his teeth were loosened, lie concluded from his examination that petitioner was suffering from mercurial poisoning, with the residual effects thereof known as mercurial cachexia, and that he was totally and permanently disabled. He testified in detail as to the petitioner’s condition, his symptoms and the reasons for his diagnosis, and the reasons for eliminating other possible causes of petitioner’s condition, and said that in his opinion, the exposure of petitioner was causally related to the conditions which he found, and that the exposure was the competent producing cause of petitioner’s condition.

Dr. Lewis testified that he examined petitioner, for the respondent, on December 3d, 1943, with Dr. Kuoff; that he took a complete history of petitioner, and that he made extensive laboratory surveys and tests; that he had had a great deal of experience in eases of this kind; and that he had testified in many mercury eases, but that he could not tell the court the cause of petitioner’s condition; that there was nothing in his findings which would indicate that it was due to mercury poisoning. His diagnosis was myasthenia gravis, obesity, and latent syphilis “with a question mark.” He described myasthenia gravis as a specific disorder occurring somewhat more commonly in females than males, but occurring in both sexes from the second decade on, and added that the origin thereof was unknown. However, on cross-examination, he said that it would be perfectly possible for the petitioner to have a true mercurialism stomatitis, and that the neuromuscular disorder might be entirely independent.

Dr. Kuoff examined the petitioner on two occasions, October 11th and December 3d, 1943. He had the benefit of the laboratory findings and specimens taken by Dr. Lewis. He testified in detail as to the history of the case and petitioner’s condition. His testimony was similar to that of Dr. Lewis. He said the case was definitely one of myasthenia gravis, with which eases he had a great deal of experience. He had had cases of acute or chronic mercury poisoning, but he found nothing to indicate that petitioner’s condition was due to such poisoning. He added that the cause of the disease was not known. On cross-examination he eliminated syphilis as a cause of petitioner’s condition.

Dr. Kassel, testifying, for the respondent, said that he was an interne at Christ Hospital from April to July, 1943, and that at the time that petitioner was in said hospital he was not licensed in the State of Hew Jersey but was licensed in Hew York. He found no evidence of mercury poisoning, and his diagnosis was myasthenia gravis, which diagnosis was made the first night. Later in his testimony he said it was the first case of myasthenia gravis that he had observed and that he never treated or handled a mercury poisoning case. He said that this disease rarely occurs in males of 'petitioner’s age; that he had never read or heard of a ease bf that kind affecting a man of that age; and that in mercury poisoning cases the greatest weight is given to the man’s exposure to mercury. That although petitioner’s entire body, 'including his lower extremeties were affected, the disease of myasthenia gravis rarely affects the. lower extremeties. He was questioned about his diagnosis of syphilis or neurosyphilis and he admitted that he might have been mistaken about this . diagnosis. „• •

Dr. Shook, testifying for the respondent, said that he was the respondent’s physician and had made-periodic examinations of the petitioner up to the time he left the company, and that the last examination was made in November, 1942. He found petitioner’s teeth poor, his gums inflamed and a condition of gingivitis, which he said was also referred to in some instances as stomatitis. He was asked whether it was possible and probable that these conditions might have been caused by a mercurial deposit in the system and he said that it was possible, but that he wouldn’t say it was probable. He also said that when he examined the petitioner in 1942 he found his eyes in normal condition, with no crossing and no drooping of the eyelids. In the course of his periodic examinations of the petitioner, during the said period of time, he made no record of any ailment of petitioner’s muscles or nerves, saying that if he had found any such condition he would probably have made a note of it, because that was the purpose of his examinations to see whether the men were in good health and able to work. He was questioned about petitioner’s visit to his office in December, 1942, when the respondent had sent him there for examination. He said that he told the petitioner that he would be sent to the hospital for examination, but petitioner never came back. His attention was called to the letter which Mr. Fuchs had sent to the petitioner informing him that the doctor (Dr. Shook) was not able to handle any more cases. He said that he did not recall discussing the matter with Mr. Fuchs. Ho added that he had a notation in his records of petitioner’s examination, that he was well nourished, well developed and that his muscles were strong; and that ho found nothing wrong with his tongue, throat or his speech.

Dr. Wolff, an optometrist, testifying for the respondent, said that he made an examination of the petitioner’s eyes on February 24th, 1931, and that he has not seen him since; that at that time he was wearing glasses to correct an eye strain, and that he had a ptosis in the right upper lid which he described as a drooping of the lid over the pupil. He gave no treatment because the glasses were all that the petitioner needed.

In considering the medical testimony, I find that the question to be determined, is whether the petitioner’s disability, conceded by all of the doctors, is due to disease, or whether it is the result of mercurial poisoning contracted in the course of his employment with the respondent. The respondent contends that petitioner is suffering from myasthenia gravis, of which the origin is unknown. Although Dr. Sinclair has referred to his condition as being that of myasthenia gravis, he found and testified that mercury poisoning was the cause thereof, and that he used the term to describe the generalized muscular weakness. He did not refer to the condition as being one of disease.

Petitioner’s other medical witnesses testified that his condition was not one of myasthenia gravis but that it was due to mercurial poisoning. I do not find Dr. Sinclair’s testimony to be at a variance with the testimony of petitioner’s other doctors. While the testimony given by the respondent’s doctors sets forth that the petitioner’s condition is due to myasthenia gravis, and not to his exposure to mercury, I have reached the conclusion that the medical testimony preponderates in favor of the petitioner’s claim, and that his condition is due to chronic mercury poisoning, and that the competent producing cause of his condition was exposure to mercury during his said employment.

I find from the testimony and evidence in the case that the petitioner has established his claim by a credible preponderance of the evidence, and that therefore, the determination, finding of facts and judgment made by the Workmen’s Compensation Bureau, on Hovember 20th, 1945, should be affirmed.

I find and determine that Thomas Jackson, the petitioner, did contract, while in the employ of Mallinckrodt Chemical Works, the respondent, a compensable occupational disease of mercurial poisoning, due to exposure of mercury.

I find and determine that medical treatment which the petitioner required was requested by him of the respondent, but refused.

I find and determine that by reason of the contraction of mercurial poisoning by the petitioner during the course of his employment with the respondent, has been totally and permanently disabled.

I find and determine that the petitioner was temporarily disabled from February 8th, 1943, to July 10th, 1943, or 21 5/7 weeks, for which he is entitled to compensation at the rate of $20 per week, being the sum of $434.28;

And that petitioner is entitled to compensation or his permanent disability for 400 weeks at the rate of $20 per week, or $8,000, making a total of $8,434.28, for both temporary and permanent disability.

Petitioner’s right to further compensation beyond 400 weeks will be governed by section 34:15—12b of the Revised Statutes of New Jersey.

Petitioner is entitled to bo reimbursed by the respondent, in the amount of $535.49, for monies expended for hospital care, ambulance, hospital bills and medicines.

Dr. Paul F. Sinclair is allowed $25 for appearance and testimony, to he paid by petitioner; and the sum of $366 to be paid him by the respondent for medical treatment given the petitioner.

Dr. Archie W. Johnson is allowed the sum of $50, to be paid by the respondent, for his examination of the petitioner and for his testimony.

Dr. George E. Meehan is allowed the sum of $50, to be paid by the respondent, for his examination of the petitioner and for his testimony.

Dr. Nicholas M. Alter is allowed the sum of $125 for his examinations of the petitioner, his appearances and testimony; of which sum the petitioner is to pay $75 and the respondent $50.

Petitioner’s attorney, Louis E. Saunders, is to be reimbursed in the sum of $281.75, by the petitioner, for money expended in securing a transcript of the testimony for the trial.

Petitioner’s attorney, Louis E. Saunders, is allowed a counsel fee of $1,000 for his services in the Workmen’s Compensation Bureau, oE which petitioner is to pay $350 and the respondent $650.

Stenographic costs to bo paid by the respondent.

An order may be presented in accordance with the above.