author: MacLeod, C. P. J.

text:
    Passaic County Court of Common Pleas.
    WILLIE PERL CASON, PETITIONER-APPELLANT, v. ISADORE OVERMAN, SAMUEL T. HUNTER AND JACK GOODMAN, TRADING AS I. OVERMAN & COMPANY, AND/OR OVERMAN METAL COMPANY, IN THE ALTERNATIVE, RESPONDENTS-APPELLEES.
    Decided June 25, 1947.
    For the petitioner-appellant, Joseph Teich (Isadore Rabinowitz, of counsel).
    For the respondents-appellees, Kalisch & Kalisch (Isidor Kalisch, of counsel).
   MacLeod, C. P. J.

A petition was filed in the Workmen’s Compensation Bureau, alleging that the petitioner’s husband, while employed by the respondents on January 9th, 1945, at 3 :30 p. m., sustained a cardiac collapse due to over-exertion at Goodman’s garage, and died immediately.

A brief summary of the facts indicates that the decedent on January 9th, 1945, transported a fiat tire to the store of one, Goodman, for the purpose of repairing same. The decedent then left, after he had fixed it. He subsequently returned with the tire to again check it. He thereupon requested one, Mr. Louis Goodman, to give him a new valve core. Mr. Goodman then went to another part of his store to secure a valve core and when he returned, he found the decedent lying on the floor about five feet from where he was last seen. The decedent was not alive.

Mr. Louis Goodman, a witness, testified that the decedent brought the tire to his store, took it apart, repaired it and then left. Decedent returned with the tire and checked the tube. He requested a new valve core that Mr. Goodman had to secure from the front of the store. When he returned, the decedent was lying in the toilet room dead, about five feet away from the tire, which he had been repairing.

The witness Goodman was confronted with a statement that had been made by him to a company representative, soon after decedent’s death. Apparently his statement was in conflict with his testimony before the Bureau. He was cross-examined at great length, concerning these inconsistencies.

A death certificate issued by the county physician of Passaic County gave the cause of death as coronary occlusion.

At the conclusion of the testimony of the witness, Louis Goodman, the attorney for the petitioner made the following statement: “That is my case, except for the medical.” A short recess was then declared. Ho testimony was offered on behalf of the respondents.

The attorney for the respondent was then directed by the Deputy Commissioner to make a motion to dismiss the petition upon the ground that the petitioner had not made out a prima facie case. This direction was complied with and the Bureau dismissed the petition.

One of the contentions raised by the appellant, is the fact that they had not completely rested their case. In other words, the petitioner had been deprived of a full and complete hearing on the merits of her ease.

A careful reading of the record indicates that the Deputy Commissioner overlooked the right of the petitioner to offer medical testimony that might connect up a prima facie case. The petitioner had a right to offer in her case medical proof based upon hypothetical questions that would develop a compensable injury. She was precluded by the actions of the Deputy Commissioner. The petitioner’s case was not completed.' She was entitled to a full and complete hearing.

The misconception of the Deputy Commissioner in determining the merits of this case, before the petitioner has fully completed her case, should not prevent a correction and a restoration of the case to its proper status to the end that the petitioner be allowed to present her full and entire facts.

In Ruoff v. Blasi, 117 N. J. L. 47 (at p. 54); 186 Atl. Rep. 581 (at p. 584), the Supreme Court said:

“We have, time and again, construed this social piece of legislation in accordance with the philosophy underlying its enactment, namely that it shall be construed liberally, i. e., for the benefit of the employee and his dependents. It seems to us that it would indeed be a step backward to deprive decedent’s dependents, adults and minors, of their fundamental right of having their day in court, of having their claim adjudicated on the merits.”

In this posture, I believe that the case should be sent back to the Bureau, and the petitioner should have an opportunity to present her complete case.

This matter, therefore, is remanded so that the appellant may produce all her evidence.

Costs will abide the outcome.


source: Caselaw Access Project

author: Kiigiead, S. C. C.

license: Public Domain

text:
    MARGARET HOWELL, PLAINTIFF, v. MEREWOOD, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Decided July 18, 1947.
    Por the plaintiff, David Novach.

    Por the defendant, Bartholomew A. Sheehan.

   Kiigiead, S. C. C.

This is a motion to strike the complaint. In it, the plaintiff has substantially alleged that on February 19th, 1941, she entered into an agreement with the defendant to convey to it certain lands for the purchase price of $7,000. The plaintiff contends that only $100 had been paid on account, and that thereafter, the plaintiff executed and delivered to the defendant a deed conveying said lands to defendant, in accordance with the defendant’s request. It is further contended that since the delivery of the deed, the plaintiff has made numerous demands of the defendant for payment of the balance of the purchase price, and that defendant refuses to pay thg same. Wherefore, plaintiff seeks to recover $6,900, together with interest from April 5, 1941.

The defendant, for the purposes of this motion, concedes it to be true that the parties hereto executed the agreement set forth in the complaint; that the purchase price fixed in the agreement has not been paid, and that a deed conveying the lands described in the agreement has been executed and delivered by the plaintiff to the defendant at the defendant’s request. Nevertheless, the defendant contends that the complaint does not set forth any cause of action cognizable in law, and that it must therefore be stricken, and I agree that this contention is correct.

There is nothing set forth in the complaint nor the briefs submitted by counsel, which discloses under what circumstances the execution and delivery of the deed took place. It must be kept in mind, however, that the plaintiff does not allege that the deed was delivered to the defendant by reason of any fraud or mistake. It is therefore proper for the court to conclude that no mistake or fraud was involved in the transaction. It is also proper for the court to conclude that the execution of the deed and its delivery by the plaintiff to the defendant was voluntary upon the part of the plaintiff, even though done at the defendant’s request.

Where a deed is made and accepted, in pursuance of an executory contract, and neither fraud nor mistake is involved, the law presumes that the deed fully expresses the final intentions of the parties as to so much of the contract as it purports to execute. Davis v. Clark, 47 N. J. L. 338; 1 Atl. Rep. 239; Brownback v. Spangler, 101 N. J. Eq. 388; 139 Atl. Rep. 524; Montclair Trust Co. v. The Russell Co., 135 N. J. Eq. 570; 39 Atl. Rep. (2d) 641, and Long v. Hartwell, 34 N. J. L. 116.

The motion to strike the complaint is therefore granted, and an appropriate order may be submitted in conformity with this opinion.


author: Drewen, C. P. J.

text:
    Hudson County Court of Common Pleas.
    CHARLES J. ENGELMANN, PETITIONER-APPELLANT, v. HUDSON DISPATCH, A CORPORATION, RESPONDENT-APPELLEE.
    Decided July 23, 1947.
    For the petitioner-appellant, Otis & Kilkenny.

    For the respondent-appellee, Kalisch & Kalisch.

   Drewen, C. P. J.

Petitioner was employed as a linotype machinist in respondent’s printing plant. The accident, which occurred December 21st, 1945, is described in the claim petition as follows: “1 was changing magazine from machine to place on rack and did not have magazine on rack when I noticed it. I pulled the magazine towards me and when T did, I felt the cross bar strike me in the pit of my stomach and had to have' another man complete the change.” The resulting injury is alleged to be the rupture of a peptic ulcer, upon which an operation was performed a few hours following the accident, confining petitioner to a hospital for about four and one-half weeks. He returned to his work on April 5th, 1946. Respondent denies accidental injury as alleged and also denies any resultant disability.

The finding in the Bureau was that petitioner failed to prove his claim by a preponderance of the evidence, and the Deputy Commissioner recites as additional support of the conclusion readied the opportunity he had to observe the several witnesses. Respondent makes the latter feature of the proceeding below a special point of argument here. We do not overlook the application of the principle in general, but in a procedure of trial de novo on the record, that is without sight or sound of the witnesses, undiscriminating adherence to it would constitute the first trier also the final judge.

There are definite factors of proof in this record that must be analyzed and appraised. What wo regard as the body of established fact from which the occurrence of an accidental injury may he deduced as a reasonable probability is, together with our passing comment thereon, as follows: Petitioner had been in respondent’s employ for nineteen years, doing the same kind of work. The task that engaged him at the time of the alleged mishap was one that he performed ordinarily ten or twenty times a night. Notwithstanding a long illness from intestinal ulcers the record reveals no prior loss of time by reason thereof. His hours of employment began at 6 :15 p. m. and on the evening in question he had carried on Ms duties without apparent difficulty of any kind until the accident in question, which occurred about 9:30 p. ai. He was then engaged in removing a magazine weighing about 78 pounds from a linotype machine to a rack, carrying or swinging it the intervening distance of five to ten feet. In the immediate juncture of that operation ho was heard to utter a profane ejaculation of anguish, at the same time exhibiting in the expression of his face unmistakable evidence of extreme pain. Upon the instant and in response to an inquiry by one who had come to his help petitioner said the magazine had slipped. Respondent complains of the insufficiency of this declaration as evidence of the happening, on the ground that it includes nothing about a striking in the stomach, hut it is the brevity of the utterance that gives assurance of its spontaneity, an essential criterion of res gestee. Petitioner’s testimony in this connection is “I felt the magazine slip * * * and pulled it toward my stomach, and the part that extends about a half inch to an inch on each side where that hook catches this magazine, that is what hit me in the stomach;” and the Deputy Commissioner notes on the record that petitioner “makes a sudden gesture of coming down and bends over and rapidly grabs with his hand towards his stomach.” We see no divergence between the contemporaneous utterance and this testimony; the only thing added by way of amplification is the telling of what it was that the slipping caused to happen and how. The failure to tell these details in the immediate juncture of the event should be clearly understandable on plainly natural grounds. A co-worker came to petitioner’s assistance to the extent at least of placing the magazine on, or of shoving it back into, the rack. He says “After I pushed him out of the way I took over.” Petitioner testifies that when he was struck “I felt that terrific pain * * * I sat down and doubled up.” This pain was unlike anything he had previously felt in what may be called the normal course of his illness. The accident occurred, as stated, about 9 :30 p. m., and five minutes thereafter petitioner reported it, he says, to his foreman and asked permission to go home, which was •not then given. Throughout the remainder of the night petitioner continued to be disabled, except for a minor repair job he was asked to do and which he made special effort to perform. At 10:40 p. m. he vomited and saw evidences of blood. This also he reported to the foreman and again asked for permission to leave, which was again denied, at least in part for the reason soon to be noted. These reportings by petitioner the foreman admits, save that he denies there was mention of an “accident” in the first report, and as to the mention of blood in the report of the vomiting, he says he may have forgotten that detail though he does not think so. The foreman does, however, describe the petitioner’s appearance on the occasions when the latter spoke to him as “terrible;” and he feared petitioner would collapse in the street if permitted to leave for home. . Prom the foreman’s testimony that prior to petitioner’s first report the latter had been doing his work in the usual way we infer that the foreman, while thus observing petitioner, had not noticed any arresting aspect of illness, and we find nothing to explain the suddenness of its startling appearance apart from the consequences of the mishap with the magazine. A relation between the two is, in our judgment, fairly probable at least. At about 1:30 A. ir. petitioner was sent home with a co-worker who had been assigned to accompany Mm. The two were on the street a short distance from the plant when petitioner collapsed. He was taken to the hospital and the operation performed soon after his arrival. It disclosed a three-quarter inch ulcerous perforation of the duodenum. Supplementing the foregoing is the testimony of Dr. Pentel, called by respondent, that the vomiting of blood after a blow like that described would be “some indication” of a perforation; the testimony of respondent’s expert that intense pain is a concomitant of perforation and bloody vomit another; and the latter’s further testimony that there can be a causal relation between a traumatic happening and a perforated ulcer.

Prom all of this it must, in our opinion, be recognized that in his lifting and removing of the magazine petitioner sustained the injury complained of. What respondent questions is the real cause of the injury. Was it a crisis entirely within the illness itself, or was there an accident-related inducement ? Por one thing, there is the definite circumstantial evidence of sequence, a prima facie indicia of cause and effect that may be taken as a factor of proof when nothing else stands in repugnance to it. Undoubtedly petitioner’s condition of health was such as to predispose him to an injury of the kind he sustained and in the manner he sustained it. But however cogent may he the idea that the ulcer was hound to rupture in any ease, we cannot give effect to it without indulging in forbidden speculation. Were it not for the trauma the rupture would not have occurred when and as it did, and thus it is that present requirements of the law for the showing of inducing cause are satisfied.

Addressed to this question of causal relation is the testimony of the physicians. Respondent’s expert says the rupture was not caused by and did not occur with the happening of the accident, but that it occurred when petitioner collapsed on the street. Of course, certainty here is neither necessary nor possible. More especially so where the xeqnixemnts of proof are dependent upon the pronouncements of experts made in the way of theory and opinion upon the latent behavior of internal disease. It is the view of Dr. Oleott, for respondent, that a perforation like that revealed by the surgery in the case would necessarily have precipitated an immediate and "dramatic” episode. The patient would have been completely disabled at once. As already noted, his testimony is that the rupture occurred at the time of collapse on the street and not before, and that there were no antecedent progressive phases between the rupture as ultimately revealed and a generating factor in the accident itself. He expounded at length upon two extremities, "pinpoint” leakage and the "massive” rupture that was actually found. He mentioned no intermediate condition. According to the Olcott thesis, the only degree of intestinal leakage that would have made it possible for petitioner to stand on his feet and move about to the extent that he did following the accident is “pinpoint” leakage, but petitioner’s ease was never one of “pinpoint” leakage, he says, because the operation disclosed the massive hole, and pinpoint never develops into a rupture of that kind, certainly not within the interval between the accident and the collapse. The important thing to note is that since Dr. Olcott rejects or ignores any and all conditions between the extremes of "pinpoint” and “massive” and ascribes to these the disparate symptoms he does,' his thesis completely excludes all theory of delayed reaction or progression of injury as between the trauma and the collapse, nevertheless, that is the theory we believe to be inherently the determining medical question in this case, and while Dr. Olcott does not deal with it, except as we shall notice later, it is dealt with by both Dr. Flanagan and Dr. Schulman for petitioner.

That the extremity of the patient’s state is not due to the size of the rupture in and of itself but to the consequent spilling of intestinal content into the abdominal cavity, we get from the testimony of the same Dr. Olcott where he deals with the "slow leakage” from a pinpoint perforation. What Dr. Flanag.an says is that the symptoms depend on the size of the perforation plus the contents in the stomach at the time, that in case of a full meal the symptoms would be more pronounced than when the stomach is empty. Incidentally, the evidence shows that petitioner ate nothing during that night and the preceding evening, and drank only water or milk.

When confronted on cross-examination with the problem of delayed reaction and the related matter of increasing leakage from an increasing rupture, Dr. Olcott still excluded any intermediate or expanding stage. But we come explicitly to the question in the testimony of Dr. Schulman, the operating surgeon. Counsel for respondent in his cross-examination of this witness, and apparently anticipating the theory then still to be expounded by his expert Dr. Olcott, sought to show by Dr. Schulman that he found free fluid in the abdomen and that with a perforation of the size here disclosed the effect on the patient is very great. The response elicited was “Yes, but with one exception. The actual perforation, when it first began, might have been very, very much smaller than actually shown here. The effect on an individual is only when the fluid gets out of the intestine into the abdominal cavity. Then he begins to show all the symptoms of rigidity and shock, which isn’t inconsistent, from the time it happened until the time he was admitted.” And this testimony the witness insisted was not hypothetical but expressive of “actually what happened,” and of “only what I found.” And having in mind specifically the time lapse from 9 :30 p. m. until 1:30 a. m., the witness speaks of that as “the explanation for this.” We should notice here petitioner’s testimony that as he walked from the bench to do the minor job at about 1:30 he “felt as though something was leaving my stomach.”

Implicit in the foregoing testimony of Dr. Schulman is the proposition that a spread of the perforation is not unlikely and that when it occurs leakage increases, that it is such increase which explains the delayed reaction in the present instance, and that the doctor’s pronouncements in this regard are consistent with what actually occurred here and with what he found.

There is one thing more. Respondent contends that petitioner is chargeable with certain claimed admissions against interest appearing in what purports to he a medical history in the hospital record. By a somewhat indirect method, over objection and without specific 'proof that petitioner gave a medical history, respondent’s counsel elicited from Dr. Schulman the recital of certain statements taken to be a record of information given the doctors by the patient. These statements as read into the testimony are “pain in epigastrium which would be relieved by either alkalis or vomiting; was under treatment for ulcers of the duodenum diagnosed under fluroscope, and for past two weeks has been having daily pain and at night it was steady and very sharp in the epigastrium and whole abdomen. Hematemesis (blood vomiting).” Dr. Schulman testified that the condition thus indicated is more or less typical of cases of the kind, and we find nothing in the recited matter which under all the surrounding facts and circumstances contravenes the precipitation by the accident of the crisis that occurred on the night in question. As to the hematemesis, it is impossible to tell whether the reference is to repeated experiences of the kind or only to the occurrence that followed the mishap.

Despondent makes a point also of Dr. PantePs assertion that petitioner did not tell him anything about a trauma. That assertion by the witness is all there is. It appears in the record as a gratuitous, quite unresponsive answer to a question relating to causality. We would surely have to know more than the transcript tells to give the assertion the importance respondent asks. The so-called hospital record itself did not go into evidence.

This court finds that the accident and injury are evidentially established. As to disability and award, however, there are difficulties. It may be that more proof should be taken, either here or on a remanding to the Bureau for that purpose. The question of disability and award should also have further argument. Counsel will be heard on notice.


author: Haktshokne, C. P. J.

text:
    Essex County Court of Common Pleas.
    HARRY ROSENBERG, PETITIONER-APPELLEE, v. BIBONI AND CO., RESPONDENT-APPELLANT.
    Decided August 26, 1947.
    For the petitioner-appellee, Rothbard, Harris & Oxfeld (by Henry Harris).

    For the respondent-appellant, Edward G. Gerardo.

   Haktshokne, C. P. J.

Petitioner, Harry Bosenberg, was employed as a sewing machine operator by respondent-appellant, Biboni and Co. In addition to using sewing machines, the company’s business required the use of a pressing machine. January 21st, 1946, just before returning to work after luncheon, Rosenberg started pressing his own trousers on this pressing machine. He then injured his right thumb, for which he was awarded compensation in the Bureau, the present appeal lying from such award.

The additional salient facts are that many of the employees on numerous occasions, to the knowledge of the employer, had used this pressing machine for personal purposes. This was not done by the employer’s express permission, certainly not by his authority, but rather, D’Addario, the supervisor, simply looked the other way to avoid any altercation. There is no evidence that Rosenberg’s pressing of his own trousers, or in fact the trousers themselves, had the slightest connection with his employer’s business.

Petitioner-appellee nevertheless contends that this pressing of his own trousers, which, in the absence of evidence to the contrary, must therefore be taken to be for his own personal use, was incidental to his employment, and therefore arose out of and in the course of the employment, because of the fact that the employer did not stop him and the other employees from using this pressing machine for their personal purposes on various occasions. As sustaining his position, he cites a number of cases, mostly from other jurisdictions, quoting the principle that, “An injury sustained by an employee while engaged in the performance of an act essential to his personal comfort and convenience is compensable as ‘arising out of’ and ‘in the course of the employment.’ ” 71 C. J. 669. He further cites the following text from 1 Honnold, Workmen’s Compensation, 381:

“Acts of ministration by a servant to himself such as quenching a thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen’s Compensation Acts, though they are only indirectly conducive to the purpose of the employment. Consequently, no break in the employment is caused by the mer.e face that the-workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade.” Bubis v. Flockhart Foundry, 15 N. J. Mis. R. 299, 301; 191 Atl. Rep. 281.

But the latter citation, with which the New Jersey cases and the authorities generally are fully in accord, clearly indicates that the employee, while employed, may not do anything he likes for his “personal comfort and convenience,” and still claim to be acting within the sphere of his employment. These acts must be “essential” thereto, in order that he may maintain his health and properly perfprm the duties for which he is being paid. Such is the rationale of the New Jersey decisions, holding that acts done by the employee in connection with taking lunch, warming himself, answering a call of nature, and changing his clothes and cleaning up after work, since they are all essential for the preservation of the employee’s health, and the proper performance of his duties as a healthy employee, are acts incidental to his employment, so that injuries arising therefrom are compensable. Terlecki v. Strauss, 85 N. J. L. 454; 89 Atl. Rep. 1023; affirmed (Court of Errors and Appeals), 86 N. J. L. 708: 92 Atl. Rep. 1087; Taylor v. 110 S. Pennsylvania Ave., 117 N. J. L. 346; 188 Atl. Rep. 689; Flanagan v. Green & Son, 121 N. J. L. 327; 2 Atl. Rep. (2d) 180; affirmed (Court of Errors and Appeals), 122 N. J. L. 424; 5 Atl. Rep. (2d) 742; Hanna v. Erie, 8 N. J. Mis. R. 829; 152 Atl. Rep. 179 ; Bubis v. Flockhart Foundry, supra.

By definition, therefore, where an act is done by the employee for his personal comfort and convenience, which is not reasonably essential for his health and conducive to the proper conduct of his work, but is merely for his own accommodation or advantage, without any connection with his work, same is not incidental to his employment, and injury arising therefrom is not compensable. Such is clearly the character of the petitioner’s act here, in pressing his own trousers, without the slightest connection between such pressing and his work. Nor would it seem that his having done so on other occasions, or the custom of other employees to do similar personal acts outside the sphere of their employment, could serve to change the character of the act itself from being purely personal, and disconnected with, and outside the sphere of, his employment. At least, this would appear to be the case, in the absence of proof that such custom created an additional hazardous condition of employment, permitted to exist by the employer, the which condition, as such, and distinguished from the act of the injured employee himself, gave rise to the injury.

The latter is the rationale of Popovich v. Atlantic Products Corp., 125 N. J. L. 533; 17 Atl. Rep. (2d) 492, where the employee, on returning to work from lunch, through a trapdoor; was injured by the slamming of the trapdoor by another employee, who had been playing ping-pong, as permitted by the -employer. The court makes it clear, not that the custom of playing ping-pong was a part of the employment, but that this custom created a “danger” in the employment,- the injury from which was therefore compensable. And the court says, in Belyus v. Wilkinson, Gaddis & Co., 115 N. J. L. 43; 178 Atl. Rep. 181; affirmed (Court of Errors and Appeals), 116 N. J. L. 92; 182 Atl. Rep. 873, “The line . of demarcation is that which separates acts within and those beyond the sphere of the employment” (115 N. J. L. at p. 50; 178 Atl. Rep. at p. 186). In that case, if the court had found, as claimed, that decedent’s injuries arose from “business of his own, i. e., the washing of his boy’s pants” (115 N. J. L. at p. 46; 178 Atl. Rep. at p. 184), clearly no compensation would have been allowed. To the same effect are the cases of Daly v. Bates & Roberts, 224 N. Y. 126; 120 N. E. Rep. 118, where petitioner’s doing her personal laundry was held non-compensable, though there the work was done after hours, rather than during the luncheon period, and Vitas v. Grace Hospital Soc., 107 Conn. 512; 141 Atl. Rep. 649, where plaintiff’s injury was held non-compensable when it arose from her laundering the curtains for her own room in the hospital during the luncheon period. Since the curtains were for a room in the hospital, run by the employer, the court alludes to the fact that if the work “was permitted by the employer for their mutual benefit and convenience, it would be compensable,” and thereupon goes into the question of the employer’s knowledge of the alleged practice, as indicating such permission. If, however, there was no showing of benefit to the employer, as is the case here, his knowledge of such an alleged practice would seem immaterial. The act would simply be without the sphere of employment. It is because of the existence of this benefit to the employer, as well as to the employee, as indicating that the parties had impliedly included it within the scope of the employment, that the acts done in the following cases were held to bo within the sphere of employment, so that the injuries arising therefrom were compensable: Miller v. Mueller Co., 132 N. J. L. 541; 41 Atl. Rep. (2d) 402; Owens v. Bennett Air Service, 133 N. J. L. 540; 45 Atl. Rep. (2d) 320; affirmed (Court of Errors and Appeals), 135 N. J. L. 467; 51 Atl. Rep. (2d) 111; Dubit v. Sheffield Farms, 118 N. J. L. 411; 193 Atl. Rep. 546. Similar is the basis for the decision in Wamhoff v. Wagner Electric Corp., 354 Mo. 711; 190 S. W. Rep. (2d) 915, where the court says that the employer “expected to derive benefit” from the employee’s act which resulted in the injury. ISTor is the case of Woodward & Lothrop v. Lineberry, 60 App. D. C. 164; 50 Fed. Rep. (2d) 315, to the contrary. Here the injury arose, not from any act of personal shopping, which had not yet begun, but from the employee’s use of her employer’s elevator in leaving his premises during the lunch hour, an act appropriate to the lunch hour, itself an incident of the employment.

In short, since the employee’s pressing of his own trousers was, so far as the evidence indicates, for his own personal use, the mere fact that others were leniently permitted to do acts for their own accommodation during their employment, does not change the character of that act from a purely personal one to one incidental to the employment. Thus the injury arising therefrom is not compensable.

The award in the Bureau will, therefore, be reversed, and a determination may be entered accordingly.


author: Habtstiobne, O. P. J.

text:
    Essex County Court of Common Pleas.
    JOHN WATTS, PETITIONER-APPELLEE, v. CITY OF NEWARK, RESPONDENT-APPELLANT.
    Decided July 1, 1947.

      For the petitioner-appellee, Joseph A. Fuarstman.

    For the respondent-appellant, Thomas L. Parsonnet (by Michael Breitkopf).

   Habtstiobne, O. P. J.

This appeal lies from a determination in the Compensation Bureau, awarding the employee, John Watts, petitioner-appellee, a subsequently increased disability, as provided for by the statute, N. J. S. A. 34:15-12, totaling 100%, after a previous award of original disability of 25%. The prime issues are (1) of law—as to whether the record upon which this appeal is based, includes the entire transcript of evidence taken by the Bureau, not on the hearing as to increased disability, but on the original hearing, and (2) whether, in the light of the evidence lawfully before this court—including the above original hearing evidence, or not, as this court may determine—the petitioner now has or has not, a 100% compensable disability. As to the latter question, the issue more specifically is, whether petitioner’s compensable disabilities have now, in addition to their objective effects, resulted also in a severe psychoneurosis and conversion hysteria, as claimed by him, or whether he is a pure malingerer, as claimed by respondent.

Since the decision of the second question, to some extent, depends upon the determination of the first, we proceed to the consideration of this question—whether the evidence, upon which the original award was made, is a part of the evidence to be considered on the hearing as to increased disability, both originally and on appeal. On this point, the research of industrious counsel has revealed no precedent.

In the first place, the statute requires this appeal to be “based exclusively on the transcript of the record and testimony.” R. S. 34:15-66; N. J. S. A. 34:15-66. The statute, after previously providing at length for the procedure upon the original compensation petition, makes provision, by an entirely separate subsequent section, R. S. 34:15-27; N. J. S. A. 34:15-27, for a proceeding unknown to the common law, to ascertain whether the disability previously adjudicated “has subsequently increased * .* * [or] has diminished.” It further provides a different statute of limitations upon the bringing of these proceedings for a subsequently diminished disability than for those as to a subsequently increased disability. These all point to the legislative intent that these novel proceedings, instituted by entirely separate petitions for increased or diminished disability, are separate from the proceedings culminating in the original basic award. And such has apparently been the viewpoint of our highest court, which has said, “A petition for compensation for augmented incapacity, while predicated on the original judgment, initiates what is essentially a new proceeding based on a new factual situation.” Drake v. C. V. Hill Co., 117 N. J. L. 290; 187 Atl. Rep. 637. It is furthermore clear that an original award of compensation, unappealed from, is res judicala of the rights of the parties as of that time. The determination and rule for judgment entered by the Bureau thereon, states the adjudicated res. Such determination and judgment has resolved the contradictions normally appearing in the underlying testimony, and can alone be looked to thereafter as stating the true facts at that time. As stated by our upper courts, “The formal determination or final judgment of the commissioner is, by the statute, the repository of his ultimate findings” (Tucker v. Beltramo, 117 N. J. L. 72; 186 Atl. Rep. 821; affirmed, 118 N. J. L. 301; 192 Atl. Rep. 62), as of the time of the hearing. The determination and judgment entered thereon constitutes the final findings of facts and the law of the case, just as does a judgment at common law.

The novel proceeding for subsequently increased or diminished disability must, of course, be based thereon. It is from this fixed base that the calculation must be made as to whether subsequently there has been an increase or decrease of disability. This increase or decrease cannot be determined by reference to the normally contradictory testimony taken at the original hearing. To do so would both result in confusion, and would in fact result in letting the tribunal now passing on a subsequent increase or decrease, redetermine the original disability. This would be contrary to the settled principle that the determination of such original disability is final on that point, if not appealed from, as seen above. Hence, the evidence taken on the original award is not ipso facto part of the record on the procedings as to subsequently increased or decreased disability.

Indeed, this conclusion closely accords with the settled rule that testimony given by a witness on one trial will never be received as affirmative evidence at a subsequent trial, unless (1) the issues are the same and (2) the witness has meanwhile become peculiarly unavailable. 3 Wignore (2d ed.) 1402, § 1386; Sloan v. Somers, 20 N. J. L. 66; Berney v. Mitchell, 34 Id. 337; New York Railway v. Haring, 47 Id. 137. if either of such conditions prerequisite exist here.

But this does not mean that the evidence taken on this original award is to be entirely disregarded. Far from it. For statements made by a witness thereat, if contradictory in fact to statements made by the same witness at the hearing on increased or decreased disability, may of course be properly used to affect the credibility of such witness, on well settled principles. Ordinarily, in order to introduce this prior testimony for that purpose, such contradictory statements should be first called to the attention of the witness, and used thereafter only if denied. Union Square v. Simmons, 42 Atl. Rep. 489. And even when thereafter used, such prior testimony must be properly authenticated by the stenographer. State v. Contarino, 91 N. J. L. 103; 102 Atl. Rep. 872. Since the evidence at the hearing upon which the original award was based, was not used in this case to affect the credibility of witnesses, but is now improperly presented as affirmative evidence on this hearing on increased disability, it cannot be considered as a basis for decision. Helminsky v. Ford Motor Co., 111 N. J. L. 370; 168 Atl. Rep. 420.

We turn to the meritorious question, of whether the employee has suffered increased disability subsequent to the original award, or whether, on the contrary, he is a malingerer. In outline, the admitted facts are that the employee suffered four separate and distinct accidental injuries while in respondent’s employ, all of these injuries affecting the region of his lower back, one after another. These occurred December 18th, 1936, September 6th, 1937, October 17th, 1940, and [November 7th, 1941. They were all tried together, and resulted in a single award of 25% partial permanent disability, consisting largely, upon the basis of both orthopedic and neurological findings, of a lumbar-sacral and “sacro-iliae sprain involving .the nerve roots” as well as “accelerating and aggravating underlying arthritic conditions.” This award was entered April 2d, 1943.

Pour years later, March 28th, 1947, the award for increased disability, now appealed from, was entered, finding the man 100% disabled, this additional disability being largely found to be a severe conversion hysteria or psychoneurosis of a post-traumatic nature. Substantial testimony, both lay and medical, the latter being both orthopedic and neurological, was presented by the employee. Orthopedic and neurological testimony was also presented by respondent. To detail this evidence herein would unduly extend this opinion. Suffice it to say that, if the facts testified to are true, the present award of 100% total permanent disability is amply justified, and vice versa.

Eespondent contends the man to be a malingerer, and that he and his lay witnesses are not telling the truth as to his situation, and particularly his psychoneufosis, respondent relying largely upon the fact that certain of the symptoms testified to would not seem to accord with the objective findings of the doctors. But it is noteworthy that there is not a single doctor, even those presented by respondent, who is willing, "upon the basis of his medical skill and knowledge, to reach the very medical conclusion which respondent asks this cou-rt to rea'ch) i.' e., not a doctor will sáy the man is a malingerer. Purthermore, that' psychonéurosis and eohver•sion hysteria are very real and may well result from industrial accidents, is definitely settled. In Vaccaro v. Walter Kidde & Co., 134 N. J. L. 491; 48 Atl. Rep. (2d) 393, tlie court found that the ’ employee’s blindness was the consequence of psychoneurosis of the conversion hysteria type, saying, “Hysterical amblyopia is well known to the science of neurology; and in the search for the cause of this employee’s conceded ‘industrial blindness’ it is the more probable hypothesis by far.” Thus, even in an eye, and similarly in other parts of the body, an hysteria may bo the cause of a disabling condition, in the absence of any discernible anatomical cause. Indeed, it is the absence of apparent connection between any objective, discernible, tangible cause and the neurotic symptoms, which causes the condition to be termed as “hysteria.” Thus the lack of an apparent connection between certain objective findings of the doctors and certain of Watts’ present symptoms, far from proving him to be a malingerer, equally gives rise to the conclusion that he is the subject of such an hysteria as his doctors claim.

Whether a man is telling the truth, or is acting the truth, i. e., whether he is a malingerer, can only be ascertained with the greatest difficulty by those who have the opportunity and the skill to observe him properly. When those who have observed him, including the physicians appearing for the respondent, are unwilling to term him a malingerer, it would be asking much of this court, which has never had the opportunity to observe him, to reach this very conclusion, in the face of the determination to the contrary of the Bureau, which did have the opportunity to observe him and hear him, and in the absence of anything in the record which per se indicates that he was neither telling, nor acting, the truth.

Such being the case, the award of the Bureau will be affirmed, and a determination may be entered accordingly.


author: Conklin, Commissionek.

text:
    Division of Tax Appeals.
    PUBLIC SERVICE CORPORATION OF NEW JERSEY, PETITIONER, v. CITY OF NEWARK, RESPONDENT. For the years 1943, 1944 and 1945.
    Decided August 12, 1947.
    Por the petitioner, William, H. Spear.

    Por the respondent, Vincent Casale and Harry A. Pine.

   Conklin, Commissionek.

The assessments under review were levied for the years 1943, 1944 and 1945, on the personal property of the Public Service Corporation of New Jersey. It was agreed that the assessments for all three years would be tried together, since the testimony would be the same for each of the three years.

The corporation owned some United States Treasury notes or bonds. The interest due or to become due on these federal securities was assessed by the City of Newark.

In the ease of MacAllen v. Massachusetts, 279 U. S. 620; 49 S. Ct. 432, 433; the United States Supreme Court said: “State tax, however small, upon such securities or interest derived therefrom, interferes or tends to interfere with the constitutional power of general government to borrow money on credit of the United States and constitutes a burden upon the obligations of the government, and carried far enough would prove destructive.” Hence the assessments levied upon the interest from the United States Treasury notes or bonds should be set aside as void.

The Public Service Corporation of Hew Jersey purchased nearly the entire issue of the authorized capital stock of several utility companies; namely, the Horth Hew Jersey Street Railway Company, the Jersey City, Hoboken and Paterson Street Railway Company, the Elizabeth, Plainfield and Central Jersey Railway Company, the Orange and Passaic Yallev Railway Company, and the United Electric Railway Company of Hew Jersey. The persons from whom such shares of stock were purchased accepted in payment therefor perpetual interest bearing certificates as the obligation of the Public Service Corporation of Hew Jersey. These certificates were somewhat in the nature of non-negotiable promissory notes or bonds. They obligated the Public Service Corporation of Hew Jersey to pay to the holder thereof perpetual interest on the principal sum named in the certificate, the principal sum itself never becoming due.

The certificate reads as follows:

Ho. United States of America State of Hew Jersey
PERPETUAL INTEREST-BEARING CERTIFICATE of PUBLIC SERVICE CORPORATION OF NEW JERSEY

Public Service Corporation of Hew Jersey, a corporation of the State of Hew Jersey, for value received, hereby agrees that it will pay to

at the office of Fidelity Trust Company, in the City of Hewark, State of Hew Jersey, in gold coin of the United States of America, of or eqnal to the present standard of weight and fineness, interest upon the principal sum of dollars, as follows:

In order to secure payment of the certificates, the Public Service Corporation pledged the aforesaid shares of stock with the Fidelity Trust Company, by an agreement called “Mortgage and Agreement of Pledge” and dated June 1st, 1903. By a subsequent agreement between the' Fidelity Union Trust Company and the Public Service Corporation of New Jersey dated July 25th, 1924, the Fidelity Union Trust Company purchased or redeemed for the Public Service Corporation a number of the aforesaid certificates of which the total principal sum of said redeemed certificates amounted to $1,020,223.

The assessor for the City of Newark assessed these repurchased or redeemed certificates as assets of the corporation' and valued them for taxing purposes at $1,020,223. The County Board sustained the action of the assessor, and the .Public Service Corporation appealed .to the Division of Tax Appeals.

Since these perpetual interest bearing certificates were issued by the Public Service Corporation and are obligations of the Public Service Corporation, they cannot in any sense of the word be considered as assets of the corporation, no-matter in whose hands they may be held. A promissory note re-purchased by the Public Service Corporation where the Public Service Corporation was the maker thereof, could by no stretch of the imagination be considered an asset. In the case of Borg v. International Silver Co., 11 Fed. Rep. (2d) 147, Judge Hand stated, “a corporation can have no right of action against itself, as must be if the share is truly a liability.” For these reasons perpetual interest-bearing certificates are-not taxable.

In accordance with the foregoing conclusions, we find that the taxable personal property of the Public Service Corporation for the year 1943 was $36,950.91; for the year 1944 the assessment should be $77,874.96; and for the year 1945, $91,667.53.

Judgments will be entered accordingly.


author: Pkootok, C. C. J.

text:
    Atlantic County Circuit Court.
    LOUIS BERGES, PLAINTIFF, v. FRANK RUSSO, DEFENDANT. LOUIS BERGES, PLAINTIFF, v. FRANK RUSSO AND HARRIET RUSSO, DEFENDANTS.
    Decided August 25, 1947.

      Por the plaintiff, Irving I. Jacobs.

    Por the defendants, Cassman & Gottlieb.

   Pkootok, C. C. J.

This is an application for the transfer of two District Court causes to the Circuit Court, upon the ground that defendants have filed counter-claims in each suit for sums in excess of the jurisdiction of the District Court.

The plaintiff in the above entitled causes has commenced two separate suits in the Atlantic City District Court. The first suit is based on a series of notes totaling $208.30, alleged to have been executed by the defendant Prank Russo. The second and subsequent suit is for nine months’ arrearages in rent against the said Prank Russo and Harriet Russo, his wife, aggregating $292.50.

In the first suit, Prank Russo filed an answer and counterclaim, contending that the aforesaid notes were five of a series of twelve notes of $41.66 each, which were illegal, in that they represented payment of rent in excess of the ceiling established by the Office of Price Administration under the Pederal Emergency Control Act. . In the counter-claim, defendant Prank Russo alleged that the notes were illegal and void under the Pederal Price Control Act, Title 50, U. S. C. A. Appendix, §§ 901, et seq., and that he was entitled to triple damages amounting to $749.88 for money paid on other notes in the series.

In the second suit for rent a similar answer and counterclaim was filed by Prank Russo and Harriet Russo.

Subsequent to the filing of the answers and counter-claims, defendants gave notice of an application for the transfer of both causes to the Circuit Court, pursuant to R. S. 2:8-44, 45; N. J. S. A. 2:8-44, 45.

The said statute provides that “whenever, in any answer to any action brought in any district court of this state, the defendant shall file any * * * counter-claim, * * *, wherein it shall be made to appear that the amount claimed in such * * *, counter-claim, * * * shall exceed the sum or value limited for the jurisdiction of such court, such action, on application on behalf of the defendant, accompanied by an affidavit of such defendant or his duly authorized agent, that he verily believes that the amount of such claim, when established by proof, will be greater than the sum or value limited for the jurisdiction of such court, and that such * * *, counter-claim, * * * is filed in good faith and not for the purpose of delay, shall, upon order of the court, be transferred, with the record thereof and all papers filed in the case, for hearing and determination to the circuit court of the county in which such district court is situate; and the circuit court shall thereupon proceed therein as if the cause or matter had been originally commenced in that court * *

The statute further provides that “So action shall be transferred to a circuit court * * *, unless the judge of the circuit court to which it is intended to transfer such action shall, upon due proof * * * make an order that he finds that there is reasonable cause to believe that the * * *, counter-claim or other defensive action is founded on fact, and that there is reasonable chance for success upon the trial of the same by the party, who files such * * *, counterclaim or other defensive action.”

The jurisdiction of the District Court is limited to controversies involving not more than $500. R. S. 2:8-40; N. J. S. A. 2:8-40.

It has been settled that, regardless of the amount involved, the District Court has no jurisdiction in a suit to recover a penalty or exaction for the alleged violation of the Federal Fmergency Price Control Act. Zuest v. Ingra, 134 N. J. L. 15; 45 Atl Rep. (2d) 810.

It is manifest that the said statutory provisions authorizing removal of a cause from the District Court to the Circuit Court, relate only to eases where the former court has jurisdiction over the subject-matter, but due to its limited jurisdiction as to the amount in controversy, is precluded from adjudicating the counter-claim.

The statute requires-that the counter-claim in the District Court must be filed in “good faith.” The counter-claim, being upon a cause of action not cognizable to the District Court, cannot be said to have been filed in “good faith.” The want of jurisdiction over the subject-matter of the counter-claim is fundamental. Buttoro v. Whalen, 64 N. J. L. 461; 45 Atl. Rep. 981; Broad and Branford Place Corp. v. J. J. Hockenjos Co., 133 N. J. L. 229; 39 Atl. Rep. (2d) 80. As the District Court did not have jurisdiction over the subject-matter (aside from the amount involved) of the counter-claims, the plaintiff should not be subjected to the removal of his suits (over which the court had jurisdiction) from the forum in which they were properly commenced.

Defendants further contend that the causes of action should be transferred where the court in which the counter-claims have been filed has no jurisdiction over the subject-matter, citing the statute relating to the transfer of causes. R. S. 2 :26-60; N. J. S. A. 2:26-60. It is doubtful that the causes may be transferred under that statutory provision. That provision of the statute is intended only for the transference of a cause where the court in which it is pending has'no jurisdiction on the whole case. Curran v. Carroll, 101 N. J. L. 329; 128 Atl. Rep. 164. The District Court has jurisdiction to adjudicate the claims of the plaintiff. The defendants cannot, by setting up answers and counter-claims not cognizable in that court, oust it of jurisdiction to try plaintiff’s claims. Curran v. Carroll, supra. There the-court had under consideration a case involving an equitable defense and counter-claim to ah action at law, and the principle upon which that case was decided is applicable to the instant case. However, if an application is to be made to transfer the causes under the provisions of R. S. 2:26-60; N. J. S. A. 2:26-60, such application would have to be to the District Court arid not to this court.

Upon the foregoing conclusions, the application is denied.


author: Knight, C. P. J.

text:
    Monmouth County Court of Common Pleas.
    HYMAN KATZ, PETITIONER-APPELLANT, v. ROBERT W. SIMS AND ANNIE SIMS, INDIVIDUALLY AND TRADING AS LLEWELLYN HOTEL, RESPONDENTS-APPELLEES.
    Decided July 24, 1947.

      For the petitioner-appellant, Thomas F. Shebell.

    For the respondents-appellees, Ansohelewitz & Barr.

   Knight, C. P. J.

A formal petition having been filed in the above entitled matter, to which an answer was thereafter filed denying the allegations contained therein, and the matter having 'been heard before Deputy Commissioner Harry S. Medinets on December 18th, 1945, at which time, after hearing on the merits, the petitions were dismissed, and a notice of appeal having been filed with the Monmouth County Court of Common Pleas on or about January 23d, 1946, and other steps having been taken in accordance with the provisions of the statute, after which briefs were submitted, and after considering the briefs submitted and the testimony in this case, I do find and determine as follows:

A careful study of the transcript of testimony, findings and briefs of counsel leads me to the following conclusions:

The petitioner, Katz, was engaged to perform certain carpentry and construction work for the respondents, Eobert W. Sims and Annie Sims, the work commencing the latter part of August, 1944, and ending in the latter part of September, 1944. He alleges in his petitions for compensation that he was 'injured while working, and more' specifically, on September 14th and September 15th of 1944. Prior' to a hearing of either petition, Katz filed a claim for wages against Eobert W. Sims (Annie Sims was made a party to that suit, by consent, at the time of the hearing of the claim) with the Wage Collection Division of the Department of Labor. A hearing of the claim was had before Mr. A. D. Appice, referee, and at the conclusion thereof, a judgment was entered in favor of the defendants, Eobert W. Sims and Annie Sims, and against the plaintiff, Hyman Katz, which judgment was subsequently docketed in the Monmouth County clerk’s office and recorded in Book 33 of Common Pleas Judgments, page 76, and no appeal was taken therefrom. The order for judgment, dated October 17th, 1945, reads in part as follows :

"After hearing the stipulated facts and testimony and evidence, I find as a fact that the plaintiff was not employed by the defendant, Eobert W. Sims or Annie Sims; that the testimony of the defendants’ witnesses and the defendant, Eobert W. Sims, has convinced me that the plaintiff was an individual contractor.

"It is, therefore, on this 17th day of October, 1945, ordered, that a judgment of fiSTo Jurisdiction’ be entered in favor of the defendants, Eobert W. Sims and Annie Sims and against the plaintiff, Heyman Katz.”

Subsequent to the disposition of the claim for wages by the Wage Collection Division of the Department of Labor, a motion was made to dismiss the petitions for compensation on the grounds that the determination of the referee of the Wage Collection Division was res aijudicata as to the matters in issue, and more particularly the status of Katz’ employment, it having been decided by that tribunal that Katz was an independent contractor and not an employee, and therefore barred from prosecuting his compensation suits. The Deputy Commissioner of the Workmen’s Compensation Bureau granted the motion and dismissed the petitions. The petitioner appeals.

When the Compensation Act, chapter 95, Pamph. L. 1911; N. J. S. A. 34:15-1, et seq., was enacted, the jurisdiction to hear and determine compensation cases was given to the Judge of the Court of Common Pleas of such county as would have jurisdiction in a civil case, however, by chapter 149 of the laws of 1918, N. J. S. A. 34:1—2, the legislature created a bureau in the Department of Labor to be known as the Workmen’s Compensation Bureau, the structure and function of which need not be set forth here other than to state that as a part of the bureau, a statutory tribunal of special and limited jurisdiction was created to hear compensation claims.

In 1934, the legislature created the Wage Collection Division of the Department of Labor, R. S. 34:11—57 to 34:11—67; N. J. S. A. 34:11-57 to 34:11-67. The statute confers upon the Commissioner of Labor a special and limited jurisdiction touching claims for wages and defines his duties and powers, and provides an appeal to the Common Pleas Court from a judgment obtained in the Wage Collection Division of the Department of Labor. By the act, the legislature provided that a decision or award of the Commissioner “* * * shall be a judgment when a certified copy thereof is filed with the court of common pleas of the county where defendant resides. Such judgment shall be entered in the same manner and have the sanie effect and be subject to the same proceedings as are judgments rendered in suits duly heard and determined by courts of competent jurisdiction.” R. S. 34:11-58; N. J. S. A. 34:11-58.

Hence, we are dealing with proceedings in two statutory tribunals involving the same parties and the same issue in the two proceedings, that of the status of petitioner’s employment, but not involving the same subject-matter or the same cause of action.

It is well settled that the doctrine of res adjudicata has two' phases as set forth in Perth Amboy Dry Dock Co. v. Crawford, 103 N. J. L. 440; 135 Atl. Rep. 897, wherein Mr. Justice Katzenbach quotes as follows:

“The effect of an estoppel by judgment may present two aspects—one where a second suit between the same parties is brought for the same cause of action, the second where a second suit between the same parties is brought not for the same cause of action, but for a cause so related to the cause in the preceding suit that some matter, the establishment of which is essential to the recovery by the complainant in the last suit, was in issue and determined in the preceding suit.

“In respect to the first phase in which the question of estoppel presents itself, it is entirely settled that after one judicial determination by a court of competent jurisdiction, a second suit for the same matter, between the same parties or their privies, cannot be relitigated in the same or any other court. Hor does it matter that, in the -first suit, evidence existed which was withheld or undiscovered, or that the law was misconceived by the court, or left uncited by counsel, or that no defense was made and judgment went by default, or that only one of several defenses was interposed by the defondant; in spite of any of these defects in the prosecution or defense of the action, the judgment stands as an absolute bar against a second litigation of the same cause of action.

“When, however, a second suit is brought not for the same demand, but for a cause which was a part of the same matter, but not included in the first action, the estoppel is not so sweeping. In such instances only those issues which are common to both suits, and which had to be or wore actually decided in the first suit, are regarded as res adjudícala in the second.” Clark Thread Co. v. William Clark Co., 55 N. J. Eq. 658; 37 Atl. Rep. 599.

The estoppel, if any, in this case belongs to the second class and does not depend upon the judgment of the referee of the Wage Collection Division, hut rather the finding of fact constituting the basis of the judgment.

The record before me discloses that Katz filed a claim for wages, summonses were issued, a hearing was had on the merits of the claim, the issues involved determined, and final judgment entered, from which no appeal was taken. The testimony of that hearing, the final order of the referee in the Wage Collection Division, and a certified copy of the docketed judgment are a part of the record of this appeal, having been exhibited at the hearing of the motion before the Deputy Commissioner of the Workmen’s Compensation Burean.

At the hearing of the wage claim, the referee passed upon the status of Katz’ employment, which is the basis of his claims for compensation. Therefore, since the status of petitioner’s employment was fixed at that hearing, petitioner is estopped from raising that issue in his compensation suits. It is well settled that when it appears that some particular issue arising in a second cause of action was tried and determined in anothex cause of action, the estoppel extends to such issue. It is not the judgment in the former case which is the bar. but rather the finding of facts or the verdict constituting the basis of the judgment by which the parties are estopped.

It cannot be argued that the referee of the Wage Collection Division did not have jurisdiction over the proceedings before Mm. He was given jurisdiction by R. S. 34:11-58; N. J. S. A. 34:11-58, and at the same time the legislature gave to the judgments of the Wage Collection Division, when properly filed with the Court of Common Pleas, the same effect as judgments rendered in suits duly heard and determined by courts of competent jurisdiction. The referee’s order, dated October 17th, 1945, which read that judgment of “Ho Jurisdiction” be entered, was not a finding that he had no jurisdiction over the proceedings, rather it was the final judgment of a statutory tribunal based upon documentary proof, testimony and stipulated facts and is conclusive as between the parties until set aside.

In the opinion of this court, the attempt on the part of the petitioner to collaterally attack the findings of the referee is without merit, as judgments or determinations of courts of special and limited jurisdiction attain the same immunity from collateral attack as judgments of courts of general jurisdiction, provided that “courts of special and limited jurisdiction * * * reveal on the records the existence of jurisdictional facts * * * or by showing such finding by evidence aliunde the record.” Mangani v. Hydro, Inc., 119 N. J. L. 71; 194 Atl. Rep. 264, 265. In this case, the order for judgment of the referee of the Wage Collection Division sets forth the existence of the jurisdictional facts.

I can see no reason why the doctrine of res adjudicada, should not apply between two statutory tribunals, with the same limitations however, as it applies between a statutory tribunal and a court of general jurisdiction.

It is, therefore, on this 24th day of July, 1947, ordered, that the appeal be and the same is hereby dismissed and that the findings and judgment of the Workmen’s Compensation Bureau be affirmed.


author: Labbecqtje, Commissioneb.

text:
    Division of Tax Appeals.
    LAKEWOOD JUDEAN LODGE NO. 1351, B’NAI B’RITH, PETITIONER, v. TOWNSHIP OF LAKEWOOD, RESPONDENT. For the year 1945.
    Decided August 12, 1947.
    Dor the petitioner, Milton Miller.

    Dor the respondent, E. Elmer Matthews.

   Labbecqtje, Commissioneb.

Petitioner herein seeks a cancellation of the 1945 assessment on its property at No. 425 Dourth Street, Lakewood, New Jersey. The assessment was originally attacked on two grounds; that petitioner was a corporation devoted solely to charitable purposes, and that the premises were owned by the Township of Lakewood on the assessment date, and hence were not taxable for the year 1945.

2?rom the testimony taken and the exhibits offered, it is undisputed that, on October 1st, 1944, the assessing date, the premises in question were owned by the Township of Lakewood. On October 25th, 1944, the township deeded the property to one Sidney Zweben. Zweben retained title only until January 19th, 1945, at which time he conveyed the premises to the petitioner. In July of 1945, the petitioner received what purported to be a final tax bill for the year 1945, based upon the assessment complained of.

It is clear that the assessment in question must be set aside. The rule is well settled that the taxation of property in this state' is based upon the status of the property as of the assessing date and not as of the tax year or any portion thereof. Jersey City v. Montville, 84 N. J. L. 43; 85 Atl. Rep. 838. Since, on October 1st, 1944, the owner of the property was the Township of Lakewood, the property was exempt for the entire year of 1945. R. S. 54:4-3.3; N. J. S. A. 54:4-3.3. Corrado v. Hoboken, 20 N. J. Mis. R. 134; 25 Atl. Rep. (2d) 287.

It is urged, in support of the assessment, that it was authorized by chapter 137 of the laws of 1945, R. S. 54:4-63.2; N. J. S. A. 54:4-63.2. The statute in question provides that when any parcel of real property has been sold by any municipality and the deed has been delivered after October 1st in any year and before January 1st following, the assessor shall determine the full and fair value of such parcel as of said January 1st and shall enter the amount of such assessment in a list to be known as the “added assessment list.” The statute further provides, R. S. 54:4-63.3; N. J. S. A. 54:4-63.3, that where the sale by the municipality takes place after January 1st, the assessor shall determine the fair value of the property as of the first of the month following the date of delivery of the deed, and thereafter levy a proportionate assessment.

But the cited statute conferred no authority upon the assessor to levy the present assessment. The statute was not approved and did not become effective until April 10th, 1945. Such statutes are to be considered prospective only unless the language is such as to show clearly that they are intended to have a retroactive effect. Wittes v. Repko, 107 N. J. Eq. 132; 151 Atl. Rep. 850. The intention to give to the statute a retroactive effect must be expressed in clear and concise terms. Harrington v. Chopke, 110 N. J. Eq. 574; 160 Atl. Rep. 335; Bradford v. Commonwealth Casualty Co., 10 N. J. Mis. R. 301; 158 Atl. Rep. 840. No such intention is expressed in the present statute. It is clear that it could not in anywise affect the assessment which was required to be made on October 1st, 1944. Atlantic City v. Pleasantville, N. J. Tax Reports 1912-1934, p. 264; 43 N. J. L. J. 51; Lyndhurst Hebrew Association, Inc., v. Township of Lyndhurst, N. J. Tax Reports 1934-1939, p. 45; Lyndhurst v. Masonic Club of Lyndhurst, N. J. Tax Reports 1934-1939, p. 389; Hoboken v. Hoboken Lodge, N. J. Tax Reports 1934-1939, p. 390; Hoboken v. Hoboken Association, N. J. Tax Reports 1934-1939, p. 452.

Since the statute cited could confer no authority for the making of the assessment, the judgment of the Ocean County .Board of Taxation is reversed, and the assessment canceled.

In view of the conclusion reached, it is unnecessary to consider the remaining ground urged by the petitioner.


author: Leyden, S. C. C.

text:
    FRANKLIN K. PEARCE AND GLADYS T. PEARCE, HIS WIFE, PLAINTIFFS, v. HAROLD AURINGER, DEFENDANT.
    Decided September 18, 1947.
    For the plaintiffs, Arthur A. Palmer, Jr.

    For the defendant, G. Bussell Kramer.

   Leyden, S. C. C.

Lilian Goldberg, the life tenant, leased the premises in question to the defendant, Auringer, by written agreement dated June 21st, 1946, for one year commencing October 1st, 1946, and ending September 30th, 1947, at an annual rental of $720 payable monthly. In 1929 Lilian Goldberg became the sole owner of a mortgage upon the premises made and executed by her father, George Goldberg, in 1889, to her and another. Mr. Goldberg was the creator of the life tenancy. Lilian Goldberg died February 25th, 1947, and the remaindermen conveyed the premises to the present plaintiffs, who now seek possession as of the 3Qth day of July, 1947.

The defendant resists the motion to strike the answer contending that his possession is now under the executor of. Lilian Goldberg as a tenant of the mortgagee in possession, the 1889 mortgage being said to be in default. During the lifetime of the life tenant the rents were collected by her agent, and since her death have been remitted by the agent to the executor of her estate upon his instructions.

The terms of the lease entered into by the life tenant and the defendant are not binding upon the remaindermen or their successors in title. A stream cannot rise higher than its source, and the death of the life tenant terminated the lease and the right of the defendant to possession as tenant. By remaining in possession after the death of the life tenant, the defendant may have become a tenant at sufference by the inaction of the remaindermen, and as such would be liable to the remaindermen or their successors in title for the reasonable value of the use and occupation of the premises. Upon the death of the life tenant, with the automatic termination of the lease, there was no tenancy and consequently no rent, as such, due. Assuming the validity of and the default in the 1889 mortgage, the executor of the estate of Lilian Goldberg had two methods by which he might acquire the right to collect rents to be applied upon the mortgage: (1) through a receiver appointed by a competent court, and (2) by taking possession of the mortgaged premises after default. Del-New Co. v. James, 111 N. J. L. 157; 167 Atl. Rep. 747.

A mortgagee is not entitled to rents unless and until he takes actual possession of the mortgaged premises. He must do more than merely notify the agent of the deceased life tenant to remit the rents to him. He must take some action which amounts to an ouster of or surrender of possession by the mortgagor. He must actually enter the premises and he has the right to do so by any means which do not constitute a breach of the peace. Hands v. Russell, 115 N. J. Eq. 55; 169 Atl. Rep. 361. There is no such showing in the motion papers. Here the executor merely instructed the real estate agent to remit the rent to him as mortgagee in possession. There is nothing to indicate that the mortgagee, having actually taken possession of the premises, made a new agreement of tenancy with the defendant. The tenant’s right to possession of the premises under the lease terminated with the death of the life tenant, and since the mortgagee did not take possession, the tenant cannot claim under him. The answer denying the plaintiffs’ right to possession is sham and will be stricken.


text:
    Hudson County Court of Common Pleas.
    JEROME KACPROWICZ, PETITIONER-APPELLEE, v. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, RESPONDENT-APPELLANT.
    Decided September 26, 1947.
    For the petitioner-appellee, Harold Krieger (Sylvester S. Garfield, of counsel).
    For the respondent-appellant, James A. Eobollom.

   Drewen, C. P. J.

Appellant’s only contention on this appeal is that the award was made on a claim petition not filed until after the Iimitational period had expired. The accident occurred October 29th, 1942. The original claim petition was filed December 15 th, 1943. According to the recitals in-the determination and rule for judgment returned with the transcript, there was an agreement of seven per cent, of total permanent disability “as the result of a formal settlement made on May 11th, 1944.” Payments were begun and continued as stipulated in the settlement.

On July 13th, 1946, a second claim petition was filed containing the following allegation: “Petitioner has not been adequately compensated for his injury.” In its answer respondent declared it had paid compensation “in accordance with formal award” and reserved the right to move for a dismissal of the petition for claimant’s failure to file it within the required time. It is admitted that the second petition was not filed until more than two years after the making of the last of the payments that went to satisfy the sum agreed upon in the settlement. R. S. 34:15-51; N. J. S. A. 34:15-51; Betsy Ross Ice Cream Co. v. Greif, 127 N. J. L. 323; 22 Atl. Rep. (2d) 571.

Following the hearing of the second petition there was a finding of permanent disability of ten per cent, of total, seven per cent, of which is adjudged to have been satisfied by the payments previously made. The appeal is from that award.

While petitioner admits the lapse of more than two years between the final payment and the filing of the later claim petition, he contends that treatments administered to him by respondent’s physicians and on its behalf in March and April, 1946, continued the running of the period so as to render timely the filing of the second petition. Eespondent would avoid this effect of the treatments by showing that they were for nothing that has connection with the injury, but Tather for a condition entirely due to an intervening, independent cause.

Petitioner’s testimony is that by reason of aggravated head pains which he ascribes to the accident he returned to the plant infirmary on a number of occasions in March and April, 1946; that ho had to “come back for about three weeks” every second or third day, and that the doctor gave him “different pills.” He testifies further that he experienced no accident or injury, other than that alleged in both petitions, prior to the treatments now in question. The injury in this case was to the head, and it was severe, severe enough to render petitioner unconscious for several hours, to cause him to he confined to a hospital for twenty-two days, and to render him unfit for work for four months or more. Dr. Stockfisch certified—the certificates were stipulated into evidence—that his examination of petitioner reveals a post-concussion syndrome; and respondent’s own Dr. Blumberg certifies that petitioner “probably did have a cerebral concussion” and that “he shows the end results thereof now.” Another of respondent’s physicians, Dr. Oonnally, who examined petitioner in January and again in April, 1946, testified that petitioner complained to him of headaches “as a result of accident some time in the past.” In the face of all this, plus petitioner’s testimony concerning the persistent recurrence and aggravation of head pains following the injury, there appears to be no' warrant for the conclusion urged by respondent that the disorder for which petitioner had recourse to its physicians in March and April, 1946, was unrelated to the accident. Surely there is nothing in the transcript on which to rest- such a finding. Eespondent’s argument is supported by nothing more than an opinion said to have been casually expressed by petitioner to one or more of respondent’s doctors that the condition then troubling him was due to his exposure to paint fumes while at work. Petitioner denies making such a statement, but assuming that he did, it can be of no effect in the case. To impute to the statement the importance for which respondent argues would be to hold petitioner responsible for the correctness of his own diagnosis. The statutory period of limitation must, of course, be heeded, but where the circumstances exist that are or may be competent to halt its running, they are not to be lightly annulled. The grounds should be clear. Certain it is that a dismissal or forfeiture in a case of this kind upon a shrewd or technical premise would plainly affront the remedial spirit and purpose of the law by which the right was given.

It is the finding of this court that the treatments given in March and April of 1946 were directed to consequences of the injury complained of. Such treatments, in effectuating as they do an extension of the limitational period, differ in no way from the like effect of money payments. This' holding seems clearly within the reasoning of Betsy Ross Ice Cream Co. v. Greif, supra. The logic of it is that the employer’s giving of medical treatments for an injury -sustained in the employment is not distinguishable from the employer’s advancing of money in payment for such treatments.

But there is another aspect of the matter. Even had respondent’s physicians administered no treatment subsequent to the payment of the last installment on the agreed amount, there could still be no valid denial of the additional award by reason of lapse of time. The case is in this court for trial de novo on the record, and for all that the record shows the first petition is still in full force and effect notwithstanding the agreement. It does not appear to have been dismissed, vacated nor in any other manner brought to a conclusion. The hearing recorded in the transcript was the first and only one on the merits of the claim, a fact expressly represented to the deputy commissioner on the hearing by counsel in the proceedings.

With respect to anything that touches on the merits of the case, the second petition discloses no substantial difference between it and the first, so that for all that appears there would be no more ground for our deciding at this time that the later petition is the only one before us than for predicating the same thing of the former petition. The ease need not have been heard in the Bureau on the second petition. It could just as well, upon a suitable application, have been heard on the first one. In Stroebel v. Jefferson Trucking and Rigging Co., 125 N. J. L. 484; 15 Atl. Rep. (2d) 805, where a second petition had been filed, there is an observation by the Court of Errors and Appeals that seems appropriate: “The present proceeding was viewed, ultimately, as one designed To adjudicate the original petition,’ and the deputy commissioner ruled that it was within his province to hear the original petition on the merits.” 125 N. J. L. (at p. 487); 15 Atl. Rep. (2d) (at p. 806). And with respect to the reopening of a case upon a petition not previously disposed of by final hearing on the merits, we quote from the same opinion: “The compromise agreement, notwithátanding the Bureau’s approval, does not constitute a bar to the determination of the original petition on the merits.- It is lacking in the element of finality. * * * And since such compromise agreement is not conclusive upon the parties, so also is the incidental provision for a discontinuance of the proceeding ineffective to bar a hearing of the controversy upon the merits, [Ibid, (at p. 487)]. * * * The peremptory policy of the Compensation Act is to render inconclusive adjudica-’ tions not based upon the merits. * * * It is summary in nature; and the procedural rules generally obtaining should not be permitted to override the clear policy of the statute.” 125 N. J. L. (at pp. 487, 488); 15 Atl. Rep. (2d) (at p. 807).

The findings and awards in this court are identical with those made by the Bureau.


author: Smith, Arthur B., C. P. J.

text:
    Somerset County Court of Common Pleas.
    JEANNETTE CARPENTER, PETITIONER-APPELLEE, v. CALCO CHEMICAL DIVISION OF THE AMERICAN CYANAMID COMPANY OF BOUND BROOK, RESPONDENT-APPELLANT.
    Decided September 22, 1947.

      For the respondent-appellant, Wharton & Hall (Frederick W. Hall and William T. Stewart, Jr., of counsel).
    For the petitioner-appellee, Louis Steisel (Elsie L. White, of counsel).
   Smith, Arthur B., C. P. J.

This is an appeal from a determination and award of compensation by the Workmen’s Compensation Bureau.

The decedent, Austin Y. Carpenter, was employed by the respondent-appellant on Friday, July 10th, 1942, and first reported for work on the following Monday, July 13th, 1942. He continued to work until July 20th, 1942, on which date, while walking to his ear to return home, after he had completed his days work and had taken a shower, he became suddenly ill. He was still on his employer’s property and returned to the medical department maintained by his employer. He was attended immediately (about 4:30 P. M.) by the physician then in charge. He was put to bed and given medical attention, but died at 5:50 p. M.

On July 15th, 1944, almost two years after the decedent’s death, his widow, the petitioner herein, filed a claim for compensation on behalf of herself and her 15-year-old daughter. In her claim petition she stated, as to the nature and happening of the alleged accident, that “while the petitioner’s decedent was doing heavy, unusual and strenuous work he became sick,, from which illness he died.” The petition does not allege, except by inference, that the alleged sickness and subsequent death were either results of or contributed to by the claimed heavy, unusual and strenuous work; nor does it offer any enlightenment as to the nature of the alleged sickness or the cause of death. However, the death certificate which was admitted in evidence gives the cause of death as “coronary, occlusion.” The record indicates that at the hearing before the Deputy Commissioner of Labor the parties proceeded on the theory that the petitioner claimed to be entitled to compensation on the ground that the alleged heavy, unusual and strenuous work done by the decedent in the discharge of the duties of his employment by the respondent-appellant either directly caused, or contributed to his heart failure and resulting death. This theory was vigorously disputed by the respondent-appellant.

The Deputy Commissioner of Labor by whom the ease was heard, in the first sentence of his conclusions, said: “it would seem that the only thing in issue is that of causal connection between the decedent’s employment and his death from coronary occlusion.” Although taking some pains to decline to reveal the mental processes by which he reached his conclusion (R. 196), he concluded (E. 200) “that the petitioner’s decedent did, on the 20th day of July, 1942, sustain injuries by reason of an accident arising out of and in the course of his employment with the respondent * * * and that this injury consisted of a heart failure that the doctors described as coronary occlusion * * Based upon this conclusion he awarded compensation to the petitioner.

Did the petitioner in this case sustain the burden of proving that the coronary occlusion which resulted in her deceased husband’s death was in consequence of an injury by accident which arose out of and in the course of his employment with the respondent company, within the intendment of R. S. 34:15-7, et seq.; N. J. S. A. 34:15-7, et seq.f The inquiry is whether the death is causally related to strain or exertion arising from the doing of the master’s work. Lohndorf v. Peper Bros. Paint Co., 135 N. J. L. 352, 354; 52 Atl. Rep. (2d) 61. The rule, stated in Bryant v. Fissell, 84 N. J. L. 72; 86 Atl. Rep. 458, and running on down through the decisions, is that in workmen’s compensation cases the burden of proving that the death was caused by an accident rests upon the claimant. Ten Eleven Corp. v. Brunner, 135 N. J. L. 558, 563; 53 Atl. Rep. (2d) 350. To justify an award of compensation there should be a clear preponderance of the proofs in favor of the claimant. Ten Eleven Corp v. Brunner, 135 N. J. L. 560; 53 Atl. Rep. (2d) 350. A bare possibility of causal relationship between the effort attending the doing of the decedent’s work and the coronary occlusion which caused his death does not meet the legal standard of proof and discharge the onus of proof which the law places upon a claimant. Lohndorf v. Peper Bros. Paint Co., 135 N. J. L. 352, 358; 52 Atl. Rep. (2d) 61. Our Court of Errors and Appeals, in Fusco v. Cambridge Piece Dyeing Corp., 135 N. J. L. 160, 163; 50 Atl. Rep. (2d) 870, suggests that doubt, resulting from an absence of convincing testimony, requires a denial.

There is a presumption that any death from heart disease is the result of natural causes; the onus is on the claimant to establish that the asserted accident was at least a contributory cause without which the occlusion would not have occurred. Joseph Dixon Crucible Co. v. Law, 135 N. J. L. 528; 53 Atl. Rep. (2d) 215; Ten Eleven Corp. v. Brunner, supra; Lohndorf v. Peper Bros. Paint Co., 134 N. J. L. 156, 159; 46 Atl. Rep. (2d) 439; affirmed, 135 N. J. L. 352; 52 Atl. Rep. (2d) 61.

It is a matter of common knowledge that heart disease is near the top, if not actually there, of the list of diseases arranged in numerical order of deaths produced. Many more sufferers from hypertension and arteriosclerosis die from heart failure than from hemorrhage; and of the deaths from cerebral hemorrhage, some are related to strain and some áre not. So that industry may not be burdened with a load not chargeable to it, we are under the duty to scrutinize the evidence carefully lest disability consequent upon disease alone be made the basis of an award. Ten Eleven Corp. v. Brunner, 135 N. J. L. 558, 564; 53 Atl. Rep. (2d) 350; Joseph Dixon Crucible Co. v. Law, supra; Schlegel v. H. Baron & Co., 130 N. J. L. 611; 34 Atl. Rep. (2d) 132.

Of course, there may be a compensable injury where there is an accidental strain oí the heart, even though the heart was previously weakened by disease, if the accident arose out of and in the course of the employment. Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832; Molnar v. American Smelting and Refining Co., 128 N. J. L. 11; 24 Atl. Rep. (2d) 392; Swift & Co. v. Von Volkum, 131 N. J. L. 83; 34 Atl. Rep. (2d) 897; Lohndorf v. Peper Bros. Paint Co., supra. However, because an employee continues his occupation when he should rest and because of continuing his employment, and while engaged in discharging the duties thereof, or shortly thereafter, suffers a heart failure, from which he is disabled or dies, does not of itself form a basis for compensation. To hold otherwise is to constitute an employer an insurer of the health and life of his employees and the law has not yet enlarged the employer’s burden to this extent. Lohndorf v. Peper Bros. Paint Co., supra.

The words "accident” and "employment” are not synonymous. To render an injury compensable under the Workmen’s Compensation Act there must be an event or happening, beyond the mere employment itself, which brings about the final result or contributes thereto, and without which the injury or death would not have resulted. Lohndorf v. Peper Bros. Paint Co., supra; Joseph Dixon Crucible Co. v. Law, supra.

What was the "event or happening beyond the mere employment itself,” within the interpretation of these terms by our courts, which brought about the "coronary occlusion” resulting in the death of the petitioner’s deceased husband, and without which this result would not have occurred?

After carefully scrutinizing and appraising all of the testimony in the light of the foregoing principles now firmly established in our law, it cannot, with good conscience, be said that the petitioner has successfully borne her burden by proving, by a clear preponderance of the credible evidence, that there was a reasonable probability of a- causal relationship between the effort attending her deceased husband’s performance of the duties of his employment by the respondent-appellant and the "coronary occlusion” which caused his death. The evidence intended to prove an "event or happening”—an "accidental strain” of the heart from unusually hard labor on the day in question—is not weighty and persuasive. The medical testimony offered on behalf of the petitioner is not convincing. The standard of proof is probability and the petitioner’s proofs do not meet that standard.

The Deputy Commissioner, in his conclusions (B. 197), indicated a confusion existed in the testimony as to the nature of the work performed by the decedent on the day of his death and stated that “In fact, it is impossible for me to say * * * •why there should be any discrepancy in the description of the work.” In view of this statement, it is most difficult' to understand how the Deputy Commissioner could have concluded that the clear preponderance of the evidence favored the petitioner. In stating his recollection of the testimony of the decedent’s superintendent or supervisor (James Abercromby) he indicates that he testified the job on which the decedent was engaged “took just twice as long as ordinarily that day and they had to stop from'time to time,” concluding that this inferred that “the work was not at all light' in character.” Actually Abercromby testified (E. 93) that the work Carpenter was doing on the day in question “wasn’t heavy work” and that it was “lighter than they usually do.” The witness Stow, a fellow employee who worked with the decedent, described the job as “light” (E. .122). It seems apparent from reviewing all of the testimony that petitioner’s witnesses Gallian and Horn were not only uncertain and confused in their testimony but that they were definitely mistaken in their recollections as to the work in which Carpenter had been engaged on the date of his death. This is borne out by the record produced by the witness Abercromby and also by the fact (stipulated by counsel, E. 194) that Horn told Mr. Hutchinson on the morning following Carpenter’s death that on the previous day they had been engaged in the work testified to by all of the respondent’s witnesses, which was quite different from the work mentioned by Horn while on the witness stand. ( The witness Gallian did not work with the same crew and his testimony is entitled to little if any weight. It is quite apparent from reviewing thé testimony of both the witnesses Gallian and Horn on cross-examination that neither of them were reasonably certain of their statements. The testimony of the witnesses Abercromby, Stow and Brown is much more positive and convincing and it has the support of the work record of the witness Abercromby and the statements made to Mr. Hutchinson the morning following Carpenter’s death. According to the witnesses whose testimony appears to be the more reliable, Carpenter does not appear to háve done any work on the day of his death which could possibly be considered heavy or such as might reasonably be thought capable of producing a heart strain. The job was finished about 3 :30 p. m. and the crew sat around to watch for leaks (R. 123). They all fooled around squirting a hose at each other, including Carpenter (R. 136). Neither Abercromby, Stow nor Brown noticed anything unusual about Carpenter during the day and he made no complaints to either of them. Stow and Carpenter had adjoining lockers (R. 137). Brown saw him in the locker room after their shower following the completion of their day’s work (R. 143). Abercromby spoke to him in the locker room after he had finished his shower. He noticed nothing wrong with him and in response to a passing question by Abercromby, Carpenter said “I feel all right” (R. 94, 112).

The petitioner failed to prove by a clear preponderance of the evidence that the decedent, on the day of his death, met with any such unusual incident or exerted any such effort or strain in discharging the duties of his employment as to be denominated an accident. The doctors who testified in the petitioner’s behalf were not attending physicians. Their opinions and conclusions were based upon purely hypothetical questions and upon the assumption that the decedent had performed heavy, strenuous labors and exerted unusual effort on the day of his death. Since the evidence does not fairly support such an assumption, no weight can be given to the conclusions of these “experts” who concluded that the coronary occlusion was caused or contributed to by unusual exertion and strain. Carpenter became suddenly ill and died shortly after completing his day’s work and this, it seems, is the most that could be said. From all of the evidence, it cannot fairly be said that the decedent’s death from the coronary occlusion would not have happened but for his employment.

Since the petitioner has failed to sustain the burden of proving, by the greater weight of the credible evidence, that there was a causal relationship between the effort attending the doing of the decedent’s work and the coronary occlusion which resulted in his death, the determination and rule for judgment of the Workmen’s Compensation Bureau awarding compensation to the petitioner must he reversed and judgment entered in favor of the respondent-appellant.'