author: Delaney, C. P. J.

text:
    Passaic County Court of Common Pleas.
    FRANCES MOORE, PETITIONER-APPELLEE, v. CITY OF PATERSON, RESPONDENT-APPELLANT.
    Decided April 3, 1940.
    For the petitioner-appellee, Nathan Rabinowitz.

    For the respondent-appellant, Salvatore D. Viviano.

   Delaney, C. P. J.

This is an appeal from the Workmen’s Compensation Bureau in which Deputy Commissioner Stahl made an award in favor of the petitioner.

The uncontroverted facts are: that Mrs. Frances Moore, the widow of Edward Moore, who in his lifetime was a fireman employed by the city of Paterson, and had been so employed for thirty-one years, was married to the petitioner thirty-six years and they had lived together continuously. The household consisted of the petitioner, decedent and three children over sixteen years of age. On the day in question, July 11th, 1938, at about five p. M., a very warm and humid day, after partaking of sandwiches and coffee in the engine house, the decedent was called to active service by the sounding of an alarm. Attired in regular fire equipment, helmet, boots and rubber coat, he responded to the call taking his position on the back of the hose cart. The fire was at the Wright Aeronautical plant located at Beckwith avenue and Lewis street in the city of Paterson. One member of Fire Company No. 7 to which the decedent was attached was on vacation, and another at home for supper, leaving the company with three men instead of five the number prescribed. On arriving at the scene of the fire the decedent proceeded to pull the hose off the truck and connect the Siamese, which is attached to the hose, to the hydrant. The Siamese attachment weighing about twenty-five pounds contains two outlets, its purpose is to provide an extra hose connection. Leaving the hydrant the decedent went to the scene of the fire about four or five hundred feet distant where he was directed by a superior officer to turn on the hydrant. He was seen running as he approached his superior officer. In pursuance to the instructions he ran seventy-five feet in the direction of the hydrant at which point the vision of the commanding officer was obstructed by the corner of the building and he could no longer follow the course or conduct of the decedent. The body of Mr. Moore was lying at the hydrant with the wrench or hook with which the water is turned on lying on the ground a few feet away. The water was turned on, an operation which requires certain physical effort. Captain Kennedy said, “It required eight or ten turns to get the water, that is because the valve is down in the ground. There is plenty of difficulty in turning it on.” The proofs show a facial expression of physical distress at the time of the collapse of decedent, emission of food stuff from the mouth, the decedent falling face down. The fire department physician, who was called when the incident complained of was noticed, and who was in attendance at the fire in compliance with his duty, gave it as his opinion that death was due to acute cardiac dilatation.

The respondent contends that decedent’s death was not due to injuries sustained in an accident arising out of and in the course of his employment but rather that his death was due to natural causes.

The petitioner contends that while the decedent was suffering from a cardiac degeneration, a hypertension heart, a beginning decompensation, arteriosclerosis, which condition was found to be present July 8th, 1938, by Dr. Cremens when he examined the decedent at his behest for the purpose of securing increased compensation from the United States gov-eminent as a Spanisli-American War veteran, and so reported to the Veterans’ Bureau at Washington recommending an increase of pension, if his activities in his employment aggravated such physical illness and death ensued as a result thereof, the decedent sustained an accident arising out of and in the course of his employment within the purview of the Compensation act and his dependents are entitled to compensation.

Tt seems to me it cannot be gainsaid that a fireman engaged in answering- an alarm of fire and performing the duties necessarily connected therewith is under unusual strain and excitement and this no matter what his experience in that particular avocation or calling.

As usual there is some difference of opinion on the part of the physicians. A careful analysis of all the evidence leads me to the conclusion that the petitioner has maintained the burden cast upon her by law and has established by the greater weight of the evidence a complete chain of causation which brought into acute activity the diseased condition of Mr. Moore which hastened or caused his death while in the performance of his duties as a fireman. Geizel v. The Regina Co., 96 N. J. L. 31; 114 Atl. Rep. 328; affirmed, 97 N. J. L. 331; 116 Atl. Rep. 924; Winter v. Atkinson Frizolle Co., 88 N. J. L. 401; 96 Atl. Rep. 360.

A rather belated memo was submitted by respondent which is not properly before the court, but it may not be amiss to say, however, in Campanile v. The City of Asbury Park, 118 N. J. L. 480, Mr. Justice Parker speaking for the court said, “The petitioner was employed as a policeman and was on police duty at the time of the alleged accident. He is therefore within the purview of section 1 of chapter 145 of the laws of 1913 (Pamph. L., p. 230) as amended in 1927 (Pamph. L., p. 239) and further amended in 1931 (Pamph. L., p. 873).” L am unable to differentiate the case at bar. Fire Commissioners, &c., v. Morris, 12 N. J. Mis. R. 153; 170 Atl. Rep. 221; Jersey City v. Borst, 90 N. J. L. 454; 101 Atl. Rep. 1033.

R. S. 40:174-201 is not applicable. See McAnney v. Galoway Township, 120 N. J. L. 311; 199 Atl. Rep. 369.

The conclusion of the bureau should be affirmed.


source: Caselaw Access Project

author: Quinn, President.

license: Public Domain

text:
    State Board Tax Appeals.
    CONTINENTAL PURCHASING CO., INC., PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided April 2, 1940.
    For the petitioner, Julius Kass.

    For the respondent, James F. X. O’Brien (by Vincent J. Oasale).

   Quinn, President.

Petitioner appeals from a judgment of the Essex County Board of Taxation which affirmed an assessment levied upon it for personal property taxes for the year 1938 in the sum of $10,000. The company is in the business of purchasing and liquidating commercial accounts receivable, generally acquired by petitioner from insolvent concerns. At the outset of the hearing petitioner made an application in the nature of a motion for summary judgment on the ground that this board had adjudged its personal property taxable for the prior year, 1937, at $356.55, being the true value of its furniture and fixtures, and that the situation of the taxpayer was unchanged for the jrear 1938. See Continental Purchasing Co., Inc., v. City of Newark (State Board), filed May 15th, 1939. The application was denied, it being elementary that the board is not concluded by • its former determinations upon appeals for previous years. Each annual assessment for taxation is a separate entity, distinct from the assessments for other years. United New Jersey Railroad and Canal Co. v. State Board, 101 N. J. L. 303; 128 Atl. Rep. 427; City of Hoboken v. Hoboken Land and Improvement Co. (State Board), filed June 7th, 1938. A reference to the opinion of the board in the 1937 case, cited supra, will indicate salient omissions in certain aspects of the proof, which were supplied upon the hearing of ihe present appeal, and are hereinafter particularized.

Petitioner filed with the city a personal property tax return for the year 1938, in which its assets are listed and aggregated at $22,137.49, and its debts owing to creditors residing in New Jersey are shown to amount to $46,547.30. No exemptions are claimed, other than for cash on hand. No proof was offered by the petitioner as to the debts, but since the respondent concedes the existence and deductibility of debts to the extent of $44,227.56, the only question before us is as to whether the true value of all of petitioner’s personal property as of the assessing date exceeded the amount of such conceded debts, and particularly, whether the excess, if any, was sufficiently great to justify the assessment of $10,000 here in question. The substantial question before us concerns the true value of the quondam accounts receivable in the hands of petitioner for liquidation on the assessing date and the value of the shares of capital stock of the New York Corporation, Continental Purchasing Company, all of which were owned by petitioner, said last named corporation holding and liquidating such of the accounts originally purchased by petitioner as could more expeditiously be handled from offices in the State of New York. Such shares of stock, while ordinarily exempt from taxation where the corporation has paid taxes upon its property at its domicile during the year preceding the New Jersey assessment date, li. S. 54:4-3.2, as construed by Inhabitants, City of Trenton, v. Standard Fire Insurance Co. (Supreme Court, 1909), 77 N. J. L. 757; 73 Atl. Rep. 606, are not entitled to exemption in the hands of petitioner, assuming the supplementary facts mentioned were established by proof, since the statutory prerequisite for exemption, i. e., the filing with the taxing district of a sworn statement specifying the exempt property and attesting the date of acquisition of the property, together with the fact that it was not purchased with intent to escape taxation, was not satisfied. B. S. 54:4-15; Public Service Corporation of New Jersey v. City of Newark (State Board), filed August 25th, 1936. The stock of the New York corporation is assessable to petitioner at its domicile as intangible personalty. Newark Fire Insurance Co. v. State Board of Tax Appeals (Supreme Court, 1936), 118 N. J. L. 525; 193 Atl. Rep. 912; 307 U. S. 313 (1939). This proposition holds true even where such intangibles may be deemed to have acquired a business situs out of the state. Cream of Wheat Co. v. County of Grand Forks, 253 U. S. 325 (1920). Since it is provided by B. S. 54:4-18 that domestic corporations shall be regarded as residents of the taxing district where their chief office is located, and that the personal property of such corporations shall be taxed as is that of individuals, all of the intangibles owned by petitioner were subject to assessment in the city of Newark, where its chief, or paramount office was concededly located. Herdman Motor Co. v. State Board of Tax Appeals (Supreme Court, 1937), 119 N. J. L. 164; 194 Atl. Rep. 870.

"We might well dispose of this appeal summarily on the 'ground that petitioner has offered no proof of the true value of the shares of its New York corporate affiliate and that therefore the ordinary presumption that the assessment made by the respondent taxing district is correct, is applicable to defeat the appeal, countervailing proof being absent. Central Railroad Company of New Jersey v. Stale Tax Department (Court of Errors and Appeals, 1933), 112 N. J. L. 5, 8; 169 Atl. Rep. 489. But even assuming that the value of the accounts in the possession of the New York corporation is a fair measure of the value of the corporate stock, and considering the evidence adduced at the hearing bearing upon the true value of all the accounts being liquidated by both corporations upon the assessing date, we conclude that the assessment appealed from should not be disturbed.

Tho accounts were originally assigned for liquidation to eleven local offices, falling to four as of the assessing dale, these being in Yewark, Yew York, Brooklyn and Buffalo. In these offices there remained for liquidation accounts in the respective face amounts of $521,476.50, $705,988.74, $576.016.21 and $248,341.69, or a total of $2,051,823.44. These figures represent what remained after the deduction from the gross face value of the receivables originally purchased by petitioner, of actual collections and of charge-offs for amounts compromised or found to be uncollectible in tho course of collections. Upon interrogation by the board at the hearing as to his opinion of tho true value of these accounts, the president of the petitioner specified a ratio of one-half of one per cent, of face value, or the sum of $7,500 for one and a half million dollars face value. This estimate, however, is seen to be greatly variant from the judgment of the officers of the company in actually purchasing such accounts. For the accounts of the Sterling Corporation, for example, in the original face amount of $2,225,000, petitioner paid in 1935 the sum of $100,000, or at a ratio of four and one-half per cent, and it was testified that Sterling accounts comprised approximately seventy per cent, of the total accounts on hand as of the assessing date. It further appears from the testimony that petitioner has in the past purchased a total of over four million dollars worth of accounts for approximately $160,000, being a ratio of four per cent., and that upon the assessing date it had collected $646,315, with two and a quarter million dollars of accounts left for liquidation. It appears beyond argument that the actual payments made by petitioner in the open market are to some extent probative of the ratio between the face and true value of these accounts. Tho estimate of petitioner’s president, on the other hand, has nothing to support it.

Giving some, but not conclusive weight to the result of an application of the four per cent, formula to the $2,225,000 of accounts on hand as of the assessing date, and assuming that the value of the Yew York accounts is to be considered as a fair measure of the value of its capital stock in petitioner’s hands, we conclude that the assessment of $10,000 was not in excess of the result to be reached after subtracting the deductible debts above referred to, in the sum of $44,227.56, from the true value of petitioner’s intangible personalty on the assessing date.

The assessment under appeal must therefore be affirmed.

For the foregoing reasons the judgment of the Essex County Board of Taxation is affirmed.


text:
    State Board Tax Appeals.
    CITY OF JERSEY CITY, PETITIONER, v. BETH-EL BAPTIST CHURCH, RESPONDENT.
    Decided April 2, 1940.
    For the petitioner, James A. Hamill (by Frank P. McCarthy).

    For the respondent, David Silver.

   Quinn, President.

Respondent is a religious corporation of this state and is the owner of a two-family frame structure in the petitioner taxing district, which duly assessed the land and building for taxes- for the year 1938. On appeal, the Hudson County Board of Taxation canceled the assessment, and petitioner herewith appeals from that determination.

Tlie proof before us is clear to the effect that the first floor of this property is exclusively devoted to the uses of a house of worship by the church, and that the second story is employed as a dwelling for its minister.

The statute exempts from taxation buildings exclusively devoted to religious worship and those actually occupied as a parsonage by the officiating clergyman of a religious corporation of the state. Pamph. L. 1918, ch. 236, § 203 (R. S. 54:4-3.6). It does not appear to us that any principle of statutory construction should operate to deprive the respondent of the Lax exemption obviously intended by the legislature in such a situation, by mere reason of the fact that one building houses both its church and its parsonage.

The judgment of the Hudson County Board cancelling the assessment in question, should be affirmed.


text:
    State Board Tax Appeals.
    CITY OF JERSEY CITY, PETITIONER, v. NEW JERSEY BAPTIST CONVENTION, RESPONDENT.
    Decided April 2, 1940.
    For the petitioner, James A. Ramill (by Frank P. McCarthy).

    For the respondent, Dwight A. Danforth (of the New York bar).
   Quinn, President.

Respondent, an association of this state, incorporated under an act of the legislature dated February 3d, 1841, is the supervisory and governing body for Baptist churches, schools and young people’s activities in demoninational matters throughout the state. On February 11th, 1933, it took title to the property here in question, a building situated in the respondent taxing district, by deed executed by the trustees of the North Baptist Church of Jersey City. The building was then, and has since been in actual use as a parsonage for the grantor church. An assessment thereon levied by the petitioner taxing district fox the year 1938 was canceled, on appeal, by the Hudson County Board of Taxation. The proof adduced at the hearing is vague as to the circumstances underlying the making of this conveyance, but, so far as we gather, it was feared by the grantors that the dwindling of the membership of the congregation and the consequence of financial difficulties attendant thereupon, might result in an unwarranted disposition of the property, and the title was therefore turned over to the parent organization for safekeeping.

In any event, however, legal title to the property did not reside in the North Baptist Church of Jersey City on the assessing date, and this circumstance is decisive against the right of exemption claimed herein on its behalf by petitioner. The act provides for exemption of any building occupied as a parsonage by the officiating clergyman of any religious corporation of this state, providing the corporation claiming the exemption owns the property in question. B. S. 54:4-3.6. Since the property in question is the parsonage occupied by the pastor of the North Baptist Church, it is that entity, and not the petitioner, which must be regarded as the exemption claimant. And it is settled that the exemption claimant must have legal, not merely equitable title to the property in question, in order to qualify for exemption under the statute. Y. M. C. A. of Garfield v. Stale Board of Tax Appeals (Supreme Court, 1936), 14 N. J. Mis. R. 831; 186 Atl. Rep. 702; City of Trenton v. Trenton Masonic Temple Association (Supreme Court, 1930), 8 N. J. Mis. R. 778; 151 Atl. Rep. 753; affirmed (Court of Errors and Appeals, 1931), 108 N. J. L. 419; 158 Atl. Rep. 395; followed in The Atlantic District of the Evangelical Lutheran Synod v. City of Union City (State Board), March 21st, 1939, and Trustees of Shomrai Shabbos Shel Chevra B’nai Jacob v. City of Passaic (State Board), April 4th, 1939.

Under these authorities the property was not properly exempt for the year 1938, and the judgment of the Hudson County Board, cancelling the assessment, is reversed.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ELMER CASTON, PETITIONER, v. R. M. HOLLINGSHEAD CORP., RESPONDENT.
    Decided April 9, 1940.
    For the petitioner, Albert K. Plone.

    For the respondent, George E. Meredith (Edward M. LaMar, of counsel).
   This matter came on for hearing before me on respondent’s motion to dismiss petition.

On January 19th, 1940, a petition was filed in the above entitled matter claiming compensation and alleging that the petitioner was in the employ of the respondent on October 26th, 1936, and that on that day he sustained an accident arising out of and in the course of his employment.

A notice was served on petitioner’s attorney, by respondent’s attorney, setting forth that an application would be made to dismiss the petition on the ground that same had not been filed within the two-year period provided by the statute of limitations.

It appears that temporary disability began January 22d, 1937, and continued for a period of eight weeks, during which time the petitioner was paid at the compensation rate of $10 per week. It further appears that petitioner suffered permanent disability based on twenty-five per cent, loss of the left hand, for which he was paid an additional forty-three and three-quarters weeks at the compensation rate of $10 per week. The last payment of compensation was due January 19th, 1938.

It develops that the last payment of compensation was made by the New Jersey Manufacturer’s Casualty Insurance Company, insurance carriers for respondent, by a check dated January 4th, 1938. This check was paid on January 19th, 1938.

The question before us is whether January 4th, 1938, or January 19th, 1938, should be taken as the date when payment of the compensation was actually made. Bearing in mind that the last payment was due on January 19th, 1938, the Supreme Court of New Jersey, in Harris v. International Motor Co., 9 N. J. Mis. R. 208 et seq.; 153 Atl. Rep. 97, concluded that the date when the compensation was due controls, even though payment of compensation was made in advance. Therefore, January 19th, 1938, in this case, must be taken as the date of last payment of compensation.

The petition, as aforesaid, was filed January 19th, 1940. The next question is: was the petition filed on time? My conclusion is that it was.

The case of Metropolitan Life Insurance Co. v. Lodzinski (Court of Errors and Appeals), 122 N. J. Eq. 404 et seq.; 194 Atl. Rep. 79, supports this conclusion. This was a proceeding in the Court of Chancery where a bill of complaint, filed on February 21st, 1935, sought to cancel, because of the insured’s fraud, the procurement of two certain policies on the life of Bertha T. Lodzinski, then deceased. One of the policies was issued February 21st, 1933. The court, relying upon the case of Travelers Insurance Co. v. Leonard, 120 N. J. Eq. 6; 183 Atl. Rep. 686, concluded that the suit upon the policy was not begun within the limits of the incontestability clause. That clause was as follows: “This policy shall be incontestable after it has been in force for a period of two years from its date of issue, except for non-payment of premiums.”

On appeal from the Court of Chancery, the Court of Errors and Appeals cites McCulloch v. Hopper, 47 N. J. L. 189, wherein it was held: “In New Jersey from early times the rule seems to have been to exclude the day of the terminus a quo whether that terminus was a day or an event.” The conclusion is also drawn: “The calculation of the time for filing pleadings and the payment of bonds and notes has been consistently in accordance with this rule.” Citing National Bank of Rahway v. Carpenter, 52 N. J. L. 165; 19 Atl. Rep. 181; Stroud v. Consumers' Water Co., 56 N. J. L. 422; 28 Atl. Rep. 578; Serrell v. Rothstein, 49 N. J. Eq. 385; 24 Atl. Rep. 369; McCormick v. Hickey, 56 N. J. Eq. 848; 42 Atl. Rep. 1019.

The court, in discussing the Travelers Insurance Co. v. Leonard case, sajrs: . “The general rule for calculating the running of time was rejected in construing a somewhat similar incontestable clause in an insurance policy. * * * We think following that rule in this case was error, since in computing time the method generally adopted and followed for years in our courts has become a rule of law. Hence, the two-year period of incontestability did not expire until midnight of the 21st of February, 1935. The Supreme Court of the United States seems to be in accord with this view.”

It is, therefore, * * * ordered, that the motion of the respondent to dismiss the petition be and the same is hereby denied.

Daniel A. Spaib,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    EDNA BRITTEN, PETITIONER, v. BENE BERGER, RESPONDENT.
    Decided April 10, 1940.
    For the petitioner, Irving Hupart (by Henry Harris).

    For the respondent, Benjamin M. Weinberg.

   Hi % H* sjs sH ❖

From the evidence and stipulation of counsel, there is no doubt but that the intestate, Jack Britten, fell from the pantry window of Apartment 7, on the third floor of premises 333 Sussex avenue, Newark, New Jersey, on July 28th, 1939, while he was washing the said window. He died on July 29th, 1939, at the Newark City Hospital by reason of this fall. The Newark City Hospital has a bill of $4.50 for treatment rendered before his death. Petitioner, Edna Britten, was the wife of the intestate, Jack Britten. There was one son, Edwin Britten, born on April 26th, 1931, living with the petitioner and the intestate at the time of his death, and therefore wholly dependent upon the intestate for support. Petitioner, Edna Britten, remarried on October 14th, 1939, and is now known as Edna Welch.

The main controversy in this case is as to whether the relationship between the intestate and the respondent at the date of the aforesaid accident was that of employer and employe, and whether the accident that caused the intestate’s death arose out of and in the course of his employment.

It was admitted that there was a written contract (R-l) signed by the intestate and the respondent on June 14th, 1939. The agreement reads as follows:

“This Agreement, made the 14th day of June in the year of our Lord One Thousand Nine Hundred and Thirty-nine.
Between, Bene Berger, of the City of Newark, New Jersey, party of the First part and Jack Britten, of the City of Newark, New Jersey, party of the second part:
Witnesseth, That the said party of the First part for and in consideration of the sum of One ($1.00) Dollar agrees as follows: To give the party of the second part the basement apartment at No. 333 Sussex Avenue, Newark, New Jersey, at a free rental together with the gas, heat and lights for the said apartment.
It is further agreed by the parties hereto that this agreement can be rescinded wherever either party so sees fit, by the giving of a ten day written notice to the other party, to that effect.
It is further agreed that the party of the first part is not to be held responsible for any injuries sustained by the parties of the second part, while working on said premises. The party of the second part agrees to render all the janitor and superintendent work at No. 333 Sussex Avenue, Newark, New Jersey, which consists of: taking care of both heaters; remove all ashes and garbage; do all hall cleaning; take care of all screens and awnings; and all other work necessary as janitor and superintendent of the aforesaid premises. The party of the second part shall not be deemed to do this work in the capacity of an employe of the party of the first part, but independently and at his own time.
In Witness Whereof, the parties to these presents have hereunder set their hands and seals the day and year above written.
Witness: Bene Berger (signed) (l. s.)
Louis Lerner Jack. Britten (signed) (l. s.)
(signed)”

It is contended by the respondent that this agreement places the parties on the relationship ot landlord and tenant, rather than that of employer and employe. However, a reading of the said agreement indicates a hiring of the intestate by the respondent as janitor and superintendent for which services he was to get the free use of a basement apartment together with gas, heat and lights. The facts of the hiring and the relation of employer and employe were corroborated by the testimony of the petitioner.

It was stipulated that the reasonable value of the apartment together with the gas, heat and lights, was $25 per month, which would place it on the basis of $300 annually and would make the compensation rate of $5.77 per week.

The fact that there was no actual moneys paid out to the intestate does not change the status of the parties from that of employer and employe since it is both common knowledge and a prevailing custom that janitors and superintendents of apartment houses are compensated by being assigned an apartment for their personal use as well as in some instances an additional monetary allowance.

The respondent’s contention that under the terms of the agreement the intestate was deemed to waive section 2 of the Workmen’s Compensation act is likewise untenable. In the case of John Hancock Insurance Co. v. Lieb, 165 Atl. Rep. 720, the Supreme Court held that an agreement to waive the provisions of section 2 of the Workmen’s Compensation act should be clear and unambiguous and that a notice seeking to withdraw the employe from his rights under the Workmen’s Compensation act was too broad in its terms and therefore without any legal effect. The same holds true in the ease sub judice.

From the facts produced before me, I find that the intestate was in fact an employe of the respondent and that the intestate was subject to the control of Bene Berger, and was therefore not an independent contractor.

The last defense that the accident did not arise out of and in the course of the intestate’s employment must likewise be resolved.in favor of the petitioner. The petitioner was hired to do all work necessary “as janitor and superintendent.” A janitor is defined in Bouvier’s Law Dictionary as “A person employed to take charge of rooms, or buildings, to see that they are kept clean and in order, to lock and unlock them, and generally to care for them.” In the instant case I find that the duties of the intestate were sufficiently broad to cover his washing of the windows of a vacant apartment in order to prepare it for use of the incoming tenants. There was testimony in this case that the incoming tenant, a Miss Crosby, requested that the apartment be cleaned before she moved into it. The condition upon which she rented same was that walls be painted and it be suitable for her occupancy. She was promised both by the intestate who rented the apartment to her and by the respondent that her request would be fully complied with. Upon inspection prior to her moving in, she found the windows dirty and requested same be cleaned. It was while complying with this request the accident occurred. I find that under such circumstances, the intestate’s cleaning of the windows was within the scope of his employment by the respondent.

There was testimony that Miss Crosby gave the intestate fifty cents for cleaning the apartment. This, however, was termed both by Miss Crosby as well as by the petitioner as a mere tip or gratuity in appreciation for the intestate’s work. The mere fact that this tenant desired to reward the intestate for his efforts as well as show her appreciation, did not in anj’' way affect his employment or sever the relationship of master and servant.

In determining compensation rate payable in this ease, since the wages were $5.77 per week, the actual wage will apply. The petitioner and her infant son are entitled to the full amount thereof. The compensation rate does not change because of the subsequent marriage of the petitioner.

It is, therefore, * * * ordered, that judgment be entered in favor of the petitioner and against the respondent'.

$ $ ^ $

John C. Wegnek,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MARIANO RIBOLETTI, PETITIONEE, v. UNITED ENGINEERS AND CONSTRUCTORS, INC., RESPONDENT.
    Decided April 2, 1940.
    For the petitioner, David Roskein (by Sol J. Cohen).

    For the respondent, Henry H. Fryling (by William F. Vosseller).

   sji iH sf: & s|i #

This matter was originally heard on November 15th, 1939, at which time an adjudication of the issues was rendered. Subsequent thereto there were applications made seeking a modification of the adjudication and leave was requested to permit an exhibition of moving pictures taken some time subsequent to the original hearing. This court, in pursuance of its policy to extend its broadest latitude to the protection of both petitioners and respondents, granted leave to the respondent to bring in any additional proof it deemed necessary for the protection of its interests. At the time of the original hearing. there was adduced on behalf of the petitioner, in addition to his testimony, that of Mike Iuzzoleneo, Joe Cerami and the petitioner’s wife, Josephine Eiboletti, as lay witnesses, and the following medical experts: Dr. C. 0. Beling, Dr. Samuel B. Greenwood and Dr. Max Hummel. On behalf of the respondent there was adduced the testimony of Dr. Albert Scott Harden, Dr. J. Irving Fort, Dr. Herbert Taylor, Dr. E. Eissman and Dr. Lewis Loeser.

From the testimony adduced and the stipulations of-counsel, I find that on February 25th, 1935, the petitioner was in the employ of the respondent as a general laborer and on that day, while in the act of lifting a plank on which were placed scaffolds, in order to permit a fellow worker to pull out another plank underneath same, petitioner felt a sharp pain in his lower back; he reported this incident to his foreman immediately and thereafter continued to finish out his day’s work. This accident took place about three-thirty p. m.; his regular quitting time was at four-thirty p. M. The petitioner testified that on the same evening the pain in his back was so severe that he could not sleep throughout the night. Upon returning to work the following morning he again complained to the foreman of his severe pain. The petitioner was sent to the respondent’s dispensary where treatment to his back was instituted and continued for a period of approximately nineteen and three-sevenths weeks, during which time the petitioner'was paid compensation for temporary disability at the rate of $20 per week.

The testimony is undisputed and there is not one scintilla of evidence offered by the respondent to contradict the fact that the petitioner, prior to the accident, was apparently in good health; that he had worked for the respondent as a laborer for a period of approximately twenty years, which work consisted of general labor work, including concrete work, breaking np concrete and carrying bags of cement in large numbers. One witness characterized bis ability to work as follows: “He always worked like a horse.” Similarly it is uncontradicted and undisputed that since the accident of February 25th, 1935, the petitioner has not worked at any gainful occupation and has been rendered totally disabled, lie complains that he is unable to perform any work and complains of severe pain which, at times, preceding changes in weather, necessitates his confinement to bed for two or three days and that it is necessary to insert boards in his bed to keep same rigid in order to help alleviate his pain and discomfort.

The respondent at the hearing, subsequent to the closing of the case on November 15th, 1939, produced an investigator, John Wilson, who testified that he observed for a short while the activities of the petitioner on January 6th, 1940, and that on January 8th, 1940, took moving pictures of petitioner’s activities. I have had an opportunity of viewing these pictures in the presence of counsel. One phase of the pictures portrayed the petitioner walking along the sidewalk near his home carrying a small light package. Another phase of the pictures show the petitioner with a broom in his hand sweeping some snow from his sidewalk.

It must be borne in mind, that although these pictures were run off at one time, the activities of the petitioner were not- continuous. Mr. Wilson testified that between these various sets of pictures, the petitioner was in his home for several hours and, of course, what he did in his home, be it resting or something else, he could not state. The activities portrayed by the pictures are of trivial consequences and in my opinion are not sufficiently extensive to erase from my mind the firm conclusion, as substantiated by the medical testimony, that the petitioner is incapable of industrial employment and is totally and permanently disabled within the meaning of the Compensation act. I have given careful consideration to this evidence offered by the respondent and can see no reason to change the opinion that I reached on ^November loth, 1939. The respondent has not brought forth such evidence that would be necessary to take this petitioner out of the category of a totally and permanently disabled man. The petitioner should not be penalized, but rather commended, for the effort that h.e makes to get out into the open to take a walk and otherwise keep himself busy to the utmost of his physical resources and not resign himself completely to the fact that he must remain in bed at all times. The minimum of activities engaged in by the petitioner have a therapeutic value. It is quite certain that if the petitioner could do more things, that his mind would be occupied to such an extent as to minimize his neurotic tendencies. The respondent is amply protected under the laws of our state in the event the petitioner can and does rehabilitate himself to the end that his disability is decreased.

The law in this state is well settled that it is not incumbent upon the petitioner to prove that he is absolutely helpless, in order to obtain an award for disability. Woodrow v. Travelers Insurance Co., 121 N. J. L. 170; 1 Atl. Rep. (2d) 447. Total disability within the meaning of the act, does not require that the petitioner be bed-ridden or be completely unable to get about. The term “disability” is not restricted to such disabilities as impair present earning power at the particular occupation, but embraces any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life. Everhart v. New Jersey Cleaning and Dyeing Co., 119 N. J. L. 108; 194 Atl. Rep. 294; Burbage v. Lee, 87 N. J. L. 36; 93 Atl. Rep. 859; Pressy v. DeZeng, 86 N. J. L. 469; affirmed, 88 N. J. L. 382; 96 Atl. Rep. 1102; Burd v. Richardson & Boynton, 40 N. J. L. 84. Furthermore, the respondent by its own physicians and witnesses, has proven this man to be totally unfit for work. They have sought to attribute the major part of this man’s disability to causes other than the accident.

Factually, it can be said, without serious dispute, that the petitioner has had an old and underlying arthritic condition which was in no way disabling up to the date of the accident. That it was not disabling is only too apparent from the undisputed testimony as to the laborious and heavy nature of the work performed by him for a number of years while in the employ of the respondent and np to the very day of the accident. He then sustained, on February Both, 1935, the accident above described. Immediately thereafter he was rendered unable to attend to or perform his normal or usual work and suffered and still suffers from the complaint and physical disability alluded to, which condition continues down to the present date. The only reasonable inference that can be drawn from these facts is that the accident in question is the motivating or causative factor in producing the petitioner’s present disability and incapacity and I so find. In addition to the arthritic disability from which he is presently suffering, an arthritic state has unquestionably set in and this aggravates his functional disability. The man seems to be genuinely obsessed with the notion that he has a cancer of the back and since there is no evidence that he suffered from any mental fear or obsession prior to the accident, it may be reasonably inferred that the neurosis from which the petitioner is presently suffering is causally related to the accident and I so find. '

I therefore conclude and find that the accident of February 25th, 1935, is chargeable with the petitioner’s present condition and disability.

It is well established in this state that an employer engages a workman with all his infirmities, both physical and mental, and that upon the occurrence of an accident arising out of the course of employment the employer is responsible and liable for the ultimate effect. Bernstein Furniture Co. v. Kelly, 115 N. J. L. 500; 180 Atl. Rep. 832. While this man, prior to the accident, appeared to have been undergoing the natural changes occurring in the human system due to advancing years and some focal infection, 1 am compelled to the conclusion from the testimony adduced, that the' accident caused an exacerbation of an underlying arthritic condition rendering the petitioner unemployable. I find that the accident is the primary cause of the petitioner’s present disability. It may well be that had the petitioner been free from any underlying arthritic condition at the time of the accident, his resultant disability would not have been enough to incapacitate him from working and that by the wearing of a proper support and appliance he could resume his employment. However, the medical testimony is almost unanimous in the conclusion that the injury superimposed on his underlying arthritis rendered the petitioner totally and permanently disabled. Our courts have repeatedly held that an injured employe is entitled to compensation for disability flowing from an injury where- the injury was superimposed upon a previous non-disabling and underlying arthritis, the effect of which rendered the employe partially and totally disabled. Kolesnik v. Irvington Insulator Co., 120 N. J. L. 8; 197 Atl. Rep. 727. The law is well settled that the claimant is entitled, not only to compensation for the disability caused directly by the accident, but also for the total disability resulting from the aggravation of his preexisting ailments which, prior to the said accident had no disabling effects. Our courts have further held that a person who, by reason of injury, is able to perform only the very minor acts of life, and even those under distress, and who has only a theoretical earning power, is totally and permanently disabled within the meaning of the Workmen’s Compensation act. Citing Coates v. Warren Hotel, 18 N. J. Mis. R. 122; 11 Atl. Rep. (2d) 436.

I therefore find and determine that as a result of the accident of February 25th, 1935, of which the respondent had due notice, the petitioner was disabled and entitled to compensation for temporary disability for a period of nineteen and three-sevenths weeks * * *. I find the permanent disability attributable to the accident is total and permanent which entitles the petitioner to receive compensation for a period of 400 weeks.

í¡í # ❖ $ ❖ %

I find that the petitioner made a demand upon the respondent for a brace, which was refused. From the testimony it appears that this brace was necessary and I therefore order the respondent to reimburse the petitioner the sum of $9 which he expended in the purchase of this appliance.

It is, * * * ordered, that judgment final be and the same is hereby entered in favor of the petitioner and against the respondent in conformity with this order. * * *

And it is further ordered that upon the expiration of the 400-week period hereinabove set forth this petitioner shall be entitled to further benefits pursuant to the provisions of R. S. 34:15-12b.

Habby S. Medinets,

Deputy Commissioner.


author: Barbour, C. C. J.

text:
    Bergen County Circuit Court.
    JOSEPH T. CLARK, ADMINISTRATOR OF THE ESTATE OF MARGUERITE CLARK, DECEASED, AND JOSEPH T. CLARK, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF MARGUERITE CLARK, PLAINTIFF, v. THOMAS J. PRIME AND STEPHEN PRIME, DEFENDANTS.
    Decided April 17, 1940.
    For the plaintiffs, James A. Breslin.

    For the defendants, Edwin Joseph O’Brien.

   Barbour, C. C. J.

The above matter comes before the court on a rule to show cause why the verdict against the defendants and in favor of Joseph T. Clark, administrator ad prosequendum of the estate of Marguerite Clark, deceased, in the sum of $30,000 should not be set aside as excessive.

The jury also returned verdicts against the same defendants in favor of Virginia Clark, by her next friend Joseph T. Clark, for personal injuries, $2,000; Joseph T. Clark, administrator of the estate of Marguerite Clark, deceased, for pain and suffering while she lived, $500; Joseph T. Clark, individually, for expenses and consequential damages as father for injuries to Virginia Clark, $1,500; and to Joseph T. Clark, individually, for expenses and consequential damages as husband for injuries to his wife, Marguerite Clark, while she lived, $1,000. Ho rule was applied for as to these verdicts, the attack being solely on the verdict in favor of the administrator ad prosequendum.

At the time of her death, the decedent was thirty-six years of age and left her surviving her husband, Joseph T. Clark, who was thirty-seven years of age, and five children ranging in age from one and one-half years to twelve years, the eldest being Virginia, who was injured in the same accident and for whose injuries a verdict was also recovered as above set forth.

In the action by the administrator ad prosequendum, the court charged the jury as follows:

““The damages are limited to the pecuniary injury resulting from the death to the next of kin—that is, the deprivation of a reasonable expectancy of pecuniary advantage which would have resulted by a continuation of the life of the deceased.
““By the use of the phrase “pecuniary injury’ the statute looks to the prospective advantages of a pecuniary nature which have been cut off by the premature death of the person from whom they would have proceeded; and the word “pecuniary’ is used in distinction with those injuries to the affection and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured by recompense or money. It excludes also those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized measure of value. But infant children sustain a loss from the death of their mother, of a different kind. She owes them the duty of nurture and of intellectual, moral and physical training, and of such instruction as can only proceed from a mother. Bor the loss of this they are entitled to fair and just compensation from a wrongdoer. There can be no recovery for loss of society or wounded feelings, or anything else which cannot be measured by money and satisfied by a pecuniary recompense. There is no compensation for sympathetic loss.”

These words were taken by the court from Carter v. West Jersey and Seashore Railroad Co., 76 N. J. L. 602; 71 Atl. Rep. 253, wherein our Court of Errors and Appeals cited with approval the decision in Tilley v. Hudson River Railroad Co., 24 N. Y. 471. At first blush it would seem that the jury is permitted iu the case of the death of a mother to consider elements which are not of a pecuniary nature, contrary to the provisions of the Death act which permits a recovery only for pecuniary loss. This, however, is not true for as was said in Tilley v. Hudson River Railroad Co., 29 N. Y. 252 (retrial):

“It is certainly possible, and not only so but highly probable, that a mother’s nurture, instruction, and training, if judiciously administered, will operate favorably upon the worldly prospects and pecuniary interests of the child. The object of such training and education is not simply to prepare them for another world, but to act well their part in this, and to promote their temporal welfare. If they acquire health, knowledge, a sound bodily constitution and ample intellectual development under the judicious training and discipline of a competent and careful mother, it is very likely to tell favorably upon their pecuniary interests. These are better, even in a pecuniary or mercenary point of view, than a feeble constitution, impaired health, intellectual ignorance and degradation and moral turpitude.”

Neither the diligence of able counsel for both parties nor the research of the court has revealed any reported decision in this state which shows the value placed upon the life of a mother.

In Klemann v. Atlantic City Railroad Co., 5 N. J. Mis. R. 133, verdicts of $15,000 each, arising out of the death of married women, were reduced to $8,500 by our Supreme Court. In those cases each decedent left a husband but no children.

An examination by the court of all the eases cited in Parmcle on “Damage Verdicts” covering the death of married women and mothers reveals that in cases of this nature, in states where the law is comparable to our statutes, the court is loath to disturb the verdict of the jury. Among some of the cases are the following:

Kearse v. Seyb, 209 S. W. Ref. 635 (Kansas City Court of Appeals, 1919). Judgment for $7,500 for death of married woman leaving husband and three small children—held not excessive.

El Paso Electric Railway Co. v. Benjamin, 202 S. W. Rep. 996 (Court o£ Civil Appeals of Texas, 1918). Verdict for $9,000 in favor of two minor children for death of mother—held not excessive.

Aaronson v. City of Everett, 239 Pac. Rep. 1011 (Supreme Court of Washington, 1925). Verdict of $2,000 to surviving husband and $2,000 to each of her two minor children—held not excessive.

Elias v. City of New Iberia, 69 So. Rep. 141 (Supreme Court of Louisiana, 1915). Death of married woman leaving husband and eight children ranging from the age of five months to seventeen years, and verdict of $1,000 for each child held not excessive, the husband not having a right of action for the death of his wife in Louisiana.

Froeming v. Stockton Electric Railway Co., 153 Pac. Rep. 712 (Supreme Court of California, 1915). Verdict of $18,000 for death of married woman leaving husband and children “of which three were girls of tender years” and all were minors under the age of fourteen years—held not excessive.

Hines, Director-General, v. Partridge, 231 S. W. Rep. 16 (Supreme Court of Tennessee, 1921). Verdict of $10,000 for death of married woman, she being thirty-four years of age, leaving husband, no children, held not excessive.

Hines, Director-General, v. Roan, 230 S. W. Rep. 1070 (Court of Civil Appeals of Texas, 1921). Verdict for $20,000 for death of married woman, twenty-six years of age, leaving husband, not excessive.

Scaff v. Young, 264 S. W. Rep. 582 (Court of Civil Appeals of Texas, 1924). Death of married woman, twenty-one years of age, leaving husband, verdict of $20,000 (but children killed in same accident, separate verdicts for their deaths)—held not excessive.

Craig v. Chicago, &c., Railway Co., 150 N. W. Rep. 648 (Supreme Court of Nebraska, 1915). Verdict of $10,000 for death of married woman, age fifty-two, leaving husband and three children, ages twenty, sixteen and fourteen—held ample but not excessive.

Manceaux v. Hunter Canal Co., 86 So. Rep. 665 (Supreme Court of Louisiana, 1920). Verdict of $4,000 for death of married 'woman leaving eight minor children, increased to $8,000 by the court “in view of the loss to the children her death occasioned.”

Herro v. North Western Malleable Iron Co., 194 N. W. Rep. 382 (Supreme Court of Wisconsin, 1923). Verdict of $9,500 for death of maried woman, thirty-two years of age, leaving husband thirty-four years of age, and four children between the ages of eighteen months and nine years—held to be excessive and reduced to $7,500.

Valenti v. Sierra Railway Co., 111 Pac. Rep. 95 (Supreme Court of California, 1910). Verdict of $14,000 for death of married woman leaving husband and four minor children, one a girl of tender years—held not excessive, the court saying: “Manifestly there can be no fixed standard by which that loss can be determined. Necessarily the law had committed its ascertainment to the discretion and sound judgment of the jury, and it cannot be said that for the loss of a devoted wife and mother and deprivation by the husband and minor children of the advantages and benefits which, from the evidence in this case, the jury were warranted in finding she would continue to bestow on them had she lived, that the verdict rendered by the jury is at all excessive.”

Swayzee v. City of Augusta, 216 Pac. Rep. 265 (Supreme Court of Kansas, 1923). Verdict of $10,000 for death of married woman, thirty-one years old, leaving husband and two children—held not excessive.

Redfield v. Oakland Consolidated Street Railway Co., 42 Pac. Rep. 822 (Supreme Court of California, 1895). Verdict of $14,000 for death of married woman, aged thirty-five, leaving a husband with life expectancy of 29.62 years, and two children, aged twelve and eleven years, respectively—held not excessive. The court said: “That as a general rule such questions (damages) can be better determined by a jury than by the court, is generally conceded, and our statute has limited the power of the court over the verdicts of juries in such cases.” (The limitation referred to being “Excessive damages appearing to have been given under the influence of passion or prejudice.”)

Smith v. Lehigh Valley Railroad Co., 69 N. Y. Supp. 1112. Verdict of $10,000 for death of married woman, forty-nine years of age, leaving husband, forty-eight years of age, and two sons, age twenty-one and eighteen, respectively—reduced to $7,000.

The action is brought under our Death act, N. J. S. A. 2 :47-5, and distribution is to be made pursuant to N. J. S. A. 3:5-2, so that the husband is entitled to one-third and the residue is to be distributed in equal portions among the decedent’s children.

If one were to try to apply any rule or measure, he would find that one-third of the verdict, amounting to the sum of $10,000, is not much greater than the amount to which the verdicts in Klemann v. Atlantic City Railroad Co., supra, were reduced, and is comparable to some of the verdicts above cited. This would leave $20,000 for the benefit of the five children or $4,000 apiece. Can one say that this is excessive? The jury were able to observe the surviving husband on the witness stand, and were also able to observe the children who were in court throughout the trial. They appeared to constitute what one might call a typical American family of modest or moderate circumstances.

Certainly it would seem that if the jury is entitled to consider the nurture, intellectual, moral and physical training which a child is entitled to receive from its mother, one cannot very well say that that is not worth $4,000, and that the child in fact does not suffer a loss of a pecuniary advantage to that extent.

In order to disturb the verdict it would be necessary to find that the verdict was so excessive as to indicate that it was arrived at by mistake, passion, prejudice, or sympathy. Considering the factors above discussed, one is not able to say that it is so excessive.

Furthermore, more attention was paid during the course of the trial to the injuries to the daughter Virginia (and to the question whether or not such injuries, consisting among other things of a fractured pelvis, would interfere with normal child-birth in later life), and the jury arrived at a very proper verdict for such injuries and did not attribute to them the seriousness which the plaintiff attempted to attribute (her temporary injuries being of such nature as to justify the amount of that verdict). A rule as to such verdict was abandoned, evidencing that the defendant was satisfied with the amount of such verdict, and so as to the other verdicts. Where in a case of this nature the jury arrived at proper verdicts on four out of five counts, it tends to show a freedom from mistake, passion, prejudice, or sympathy.

The verdict may be higher than the court, if a member of a jury, would have returned; but, in view of the elements which the jury properly considered, the court cannot say that the verdict is so excessive as to evidence mistake, passion, prejudice or sympathy.

The rule, therefore, will be discharged.


text:
    State Board of Tax Appeals.
    COMMERCIAL CASUALTY INSURANCE COMPANY, PETITIONER, v. CITY OF NEWARK, RESPONDENT.
    Decided April 2, 1940.
    For the petitioner, Lum, Tamblyn & Fairlie (by John M. Lieavens and Ernest C. Lum).

    For the respondent, James F. X. O’Brien (by Raymond Schroeder).

   Quinn, President.

Petitioner, a stock insurance company, was assessed for taxation for the year 1938 by the respondent taxing district, under the provisions of Pamph. L. 1818, ch. 236, § 307, in the sum of $1,209,029. Its appeal to the Essex County Board of Taxation, praying for a reduction of the assessment, was denied. The assessing formula set out in section 307 calls for a levy upon capital stock paid in and accumulated surplus, and is stated in the case of Fidelity Trust Co. v. Board of Equalization of Taxes (Supreme Court, 1908), 77 N. J. L. 128, 130; 71 Atl. Rep. 61, as follows:

“In order to ascertain the capital and surplus it is necessary to find the true value of the gross assets. Prom this must be deducted debts and liabilities, the remainder will be the value of the capital and surplus, if any. This remainder for the purposes of taxation is to be still further reduced by the assessment of the real estate and non-taxable securities of the company * * *. This method of assessment * * * presupposes that the values used to this end are true values within the constitutional meaning.”

The controversy presented in these proceedings concerns the determination of the first factor in the formula quoted, i. e., “the true value of the gross assets.” The parties are in agreement as to the valuations for fixed debts and liabilities, assessments upon real estate, and exempt and non-taxable property, in the aggregate amount of $8,077,126.95. They likewise concur as to the true value of these items on the asset side of the ledger: real estate, mortgage loans, stocks and bonds, cash, bank balance, and accrued interest, in the total agreed sum of $7,631,195.11.

In addition to the figure for assets last stated, petitioner’s books show additional items in its asset column of $1,613,540.03, which total, however, it is urged by petitioner, is in excess of the true value of the items designated, and, to some extent, is not reflective of assets at all. Since a lawful assessment against petitioner must be founded upon the true value of the gross assets, it is incumbent upon us to examine carefully into petitioner’s contentions, being duly mindful, withal, of our right to accept book figures of value, in the absence of other sound evidence as to true value. Second National Bank, Red Bank v. State Board of Tax Appeals (Supreme Court, 1935), 114 N. J. L. 573; 178 Atl. Rep. 96; and see General Motors Corp. v. State Board of Tax Appeals (Supreme Court, Feb. 23d, 1940), 124 N. J. L. 212; 11 Atl. Rep. (2d) 314.

As the matter was restated by the court in Universal Insurance Co. v. State Board of Tax Appeals (Supreme Court, 1937), 118 N. J. L. 538 (at p. 540); 193 Atl. Rep. 915:

“In determining true value, at a time of depression when market prices were of no service, it [the court] held that while county boards were not bound by bank figures (Newton Trust Co. v. Atwood, 77 N. J. L. 141; they must base their determination upon all the evidence) they were not obliged to rewrite them, and that since the bank made its own statement as to the value of its assets it could not, under the circumstances of that ease, be heard to complain when those figures were accepted by local and state boards. Second National Bank v. State Board, 114 N. J. L. 573.” And eases therein cited.

And (at p. 541) :

“There is no hard and fixed rule and force that is to be given by those charged with the duty of determining true value to each and every factor pertinent and ascertainable in a given case.”

With these principles in mind we proceed to an analysis of those items which petitioner maintains are either valueless or have a true value less than that nominally set up on the books.

1. Agents’ Commissions due, payable and deductible from outstanding premiums receivable—$287,061.$$..

It was shown that within the $1,613,540.03 total are included gross premiums receivable, and that the figure now under consideration represents the estimated proportion of such receivables which will be deducted by company agents as commissions earned, when they remit premiums collected by them. It appears clear that this item must be deducted in order to avoid a swelling of the receivables beyond their true value to petitioner. A similar item was deducted by this board as a liability in determining the capital and surplus of an insurance company, in Fidelity Union Title and Mortgage Guaranty Co. v. City of Newark (State Board), filed December 8th, 1936.

2. Agent’s commissions due, payable and deductible from outstanding overdue premiums receivable—$50,500.00.

This item is in the same category as that first considered, except that it applies to commissions earned and payable to agents on premium balances overdue more than ninety days, the ratio being twenty-five per cent., or $50,500 in commissions, against $202,000 in balances. This deduction is likewise necessary in the determination of the true value of the premiums receivable.

Reference is next had to a number of items designated as “non-admitted” assets, not allowable for consideration, under the regulations of the Department of Banking and Insurance, in the determination of the company’s true policyholders’ surplus. The characterization, “non-admitted,” will not influence our determination as to their true value. These items are as follows:

3. Advances to Laicremmoc Realty Co.—$36,862.43.

The Laicremmoc Realty Co. is a holding company, all the stock of which is owned by petitioner. The proof was to the effect that the sole function of this corporation was to purchase in realty at foreclosure sales for petitioner, and hold title thereto. The advances now in question were made to meet temporary expenses in connection with the upkeep of these properties and were charged off, as constituting an expense account, at the end of 1937. We are satisfied that there was no value to petitioner in this item as of the assessing date, it being neither contemplated nor feasible for Laicremmoc Realty Co. to repay it.

4. Miscellaneous Advances—$4-63.37.

This was actually a suspended expense item, classified as a “non-admitted asset” purely for bookkeeping convenience. It had no value.

5. Dormant Premium Balances—$75,960.20.

This item is constituted by certain troublesome accounts receivable which have been dormant for some time, in some instances, years. Much of this has been written off since the assessing date, and very little collected. We agree with petitioner’s witness who estimated the account as having a value of only twenty-five per cent, of face, and will allow a deduction of the balance of $56,970.15, in estimating its true value.

6. Accounts receivable from companies in liquidation— $33,930.39.

As of October 1st, 1937, there was due to petitioner from companies in liquidation the amount indicated. Petitioner contends the item was absolutely valueless and that it should be deducted in toto for purposes of arriving at true value. We cannot subscribe to this view. It was proven that only fifty per cent, of this item had been written off by the petitioner on its books on September 30th, 1939, two years subsequent to the assessing date in question. Within the principles enunciated by the Supreme Court in the Second National Bank and General Motors Corp. cases, cited supra, we believe that the true value of this item cannot be fairly appraised, as of October 1st, 1937, at less than twenty-five per cent, of its face amount, or $8,482.60. A deduction of the balance of $25,447.79 will be allowed in determining the true value of the gross accounts receivable.

7. Advances to Agents—$5,297.13.

This item represents advances against future commissions to agents. We are unable to agree with petitioner’s claim that this item was valueless. In the absence of proof to the contrary, it would appear that the petitioner could expect to recoup these moneys in full against future commissions earned by these agents. No deduction will be allowed in reference thereto.

8. Accounts receivable, Southwestern Dep’t—$11,566.7,9.

This represents ninety-day overdue accounts from one of the departments of the company. We see no reason to reject the estimate of petitioner’s witness that this item had a value of only twenty-five per cent, or $2,891.69. There will be allowed a deduction from receivables on account thereof in the sum of $8,675.10.

9. Balance due from New Jersey Fidelity and Plate Glass Insurance Co.—$7$7$¡J2$¡.

This debtor was in receivership on the assessing date. We are satisfied to accept the estimate of petitioner’s witness that the account was only fifty per cent, recoverable and a deduction of $3,686.05 will be allowed in estimating its true value.

10. Premiums on combination policies—$$¡$87.17.

This item appears to have had no value to petitioner, since the premiums referred to represented that part of the total premiums on combination policies which was due to another fire insurance company, and in respect of which petitioner was merely acting as collecting agent. A deduction will be allowed for the full amount thereof.

11. Mortgage guaranty advances—$16,138.68.

This item was in no sense an asset, but the total expended by petitioner in payments on mortgage guaranties arising out of reinsurance contracts. It should be deducted in full.

12. Loss on Terry contract—$10^869.68.

Petitioner was a reinsurer of part of the bond on the contract named, and the collateral held for the petitioner’s proportion of the loss is short of the loss by the amount stated. The item had no asset .value whatever and should be deducted.

13. Suspense items—$1$06.71.

This consists of the amount of miscellaneous claim drafts which have been issued and held in suspense until properly charged off to their respective claim files. It was likewise of no asset value.

Eeeapitulating the items with respect to which petitioner is entitled to deduction from the $1,613,540.03 of gross assets under discussion, in order to arrive at the true value thereof, shows the following:

Disputed assets $1,613,540.03, reduced by
Item Amount
1 ...................... $237,961.44
2 ...................... 50,500.00
3 ...................... 36,862.43
4 ..................... 463.87
5 ...................... 56,970.15
6 ...................... 25,447.79
8 ...................... 8,675.10
9 ...................... 3,686.05
10 ...................... 2,387.17
11 ..................... 16,132.62
12 ...................... 10,869.62
13 ..................... 1,206.71
Total $451,162.95
Leaves
$1,162,377.08 True value disputed assets
7,631,195.11 Agreed amount of other assets
Total $8,793,572.19 Gross assets, true value
8,077,126.95 Agreed total deductibles
$716,445.24 Adjusted taxable estate

In accordance with these calculations the assessment will be reduced to the sum of $716,445.24.


author: Kinkead, C. C. J.

text:
    JOSEPH DOMBROSKI, PLAINTIFF, v. METROPOLITAN LIFE INSURANCE COMPANY, A BODY CORPORATE, AND VINCENT B. SMITH, DEFENDANTS.
    Decided April 18, 1940.
    For the plaintiff, Quinn & Dor emus.

    For the defendants, Clifford I. Voorhees.

   Kinkead, C. C. J.

The defendants seek to set aside a verdict for $25,000 recovered against them by the plaintiff, in a suit for malicious prosecution, on the grounds that the verdict was excessive and that it was based on passion, sympathy, bias and prejudice.

This is the third trial of the issue. The first trial, which was held before the late Judge Lawrence in September, 1936, resulted in a disagreement. Judge Lawrence also presided at the second trial in May, 1938, which resulted in a verdict of $25,000 in favor of the plaintiff against both defendants. Judge Lawrence granted a rule to show cause why a new trial should not be granted, but before the argument had been concluded by counsel, Judge Lawrence passed away. Counsel for all parties agreed by stipulation thereupon, that the rule should be heard and determined by Judge Palmer.

Judge Palmer in an opinion which is reported in 16 N. J. Mis. R. 511; 2 Atl. Rep. (2d) 649, set the verdict aside and granted a new trial.

The third trial required the better part of seven days for its disposition, and the jury after deliberating five hours, again brought in a verdict of $25,000 in favor of the plaintiff and against both defendants.

Plaintiff was employed by the defendant insurance company from 1923 to 1934 as a collector and solicitor in and about the vicinity of Freehold, 1ST. J. In the year 1934 and for some time prior thereto the defendant Vincent B. Smith was the manager of the Metropolitan Life Insurance Company at the Freehold office.

Plaintiff ceased to be employed by the insurance company in March, 1934. Plaintiff contends he was discharged because he refused to solicit insurance on Good Friday. Defendants contend he was discharged because a shortage had been discovered in his accounts.

In any event plaintiff, as the result of an investigation which had been made by the defendant Smith, was subsequently arrested and confined in the Freehold jail. Bail was furnished and in April, 1935, the plaintiff was indicted and gave bail before the Court of Quarter Sessions. He was subsequently tried and acquitted before a jury on May 13th, 1935.

Two indictments were returned against the plaintiff by the grand jury of Monmouth county, the second of which has never been moved, and still remains untried.

Testimony offered during the course of the trial would have justified the jury in finding that the arrest of the plaintiff had only been authorized by the defendants, after the plaintiff had been involved in a number of transactions connected with the defendant insurance company, which seriously reflected on plaintiff’s integrity.

The jury could have found that the charges of forgery made against the plaintiff were instituted in good faith and on the assumption that the plaintiff was guilty as charged, and that there was reasonable or probable cause for the plaintiff’s arrest and prosecution. The jury could have found that the defendants only proceeded to order the arrest of the plaintiff after all the material facts within the knowledge of the defendants had been submitted to counsel, and that acting upon the advice of counsel the prosecution of the plaintiff had been instituted.

But the jury instead chose to believe and accept the testimony offered by the plaintiff that there was no reasonable or probable cause for his prosecution; that the charges made against him were false and were not made in good faith but rather from a motive of malice. The case presented a clear, clean-cut question of fact which was resolved by the jury in favor of the plaintiff.

The evidence disclosed that the defendants did not seek the advice of any handwriting expert before charging the plaintiff with the crime of forgery.

At the first two trials no handwriting expert was produced by either side, but at the third trial the jury had the benefit of the testmony of an expert produced by the plaintiff, and another expert offered by the. defendants. The plaintiff’s expert testified that the forged signatures alleged to have been made by the plaintiff were not in the plaintiff’s handwriting. The defendants’ expert testified that the disputed signatures were not made by one Skalkovich, to whose order the checks in question had been made out, and that the alleged endorsements of Skalkovich on those checks were forgeries. He said further that he could not say with certainty that the forgeries were made by the plaintiff, but that as between Skalkovich and the plaintiff, the weight of the evidence was toward the plaintiff.

Plaintiff claimed a loss of approximately $2,500 in connection with the foreclosure of his home. This claim for damages was not justified by the evidence. The assistant secretary of the building and loan association testified that at the time of the plaintiff’s arrest in August, 1934, the plaintiff was fifteen months in arrears in his payments to the building and loan association, and that the bond and mortgage provided that foreclosure proceedings could be instituted any time that arrears of six months or more existed.

This witness further testified that it was necessary for the building and loan association to advance the sum of $117.46 for taxes and insurance. The 1933 taxes on the plaintiff’s property were paid by the association to keep the borough from selling the property, and the plaintiff had also failed to pay the premiums required to keep his property protected by insurance.

These conditions existed before the date of plaintiff’s arrest in August, 1934, and it is quite apparent that the plaintiff cannot, therefore, reasonably attribute the loss of his home to his arrest and imprisonment. The entire claim for $2,500 damages in this respect will therefore be disallowed and the verdict reduced accordingly.

So far as compensatory damages are concerned, it was proper for the jury from the evidence to compensate the plaintiff, for his arrest and detention in jail until released on bail, and for his humiliation and mental suffering. Plaintiff could also be compensated for impairment of his social and business standing. In this connection the testimony discloses that with the exception of employment with one insurance company for a brief interval, he has found it impossible, despite his ability to speak several foreign languages, and his long experience, to secure employment with any other insurance company.

The plaintiff claimed that he earned over $3,500 yearly on an average basis. But I feel that the testimony of John W. Twyford, who is the audit section head of the Metropolitan Life Insurance Company, is more accurate on this point. Mr. Twyford testified that the average earnings of the plaintiff for the ten years prior to 1934, as taken from the official records of the company, were $2,510 yearly. Thus the claim of the plaintiff for loss of earnings represented a considerable amount.

In addition, in this type of case, the jury was justified in awarding punitive damages to the plaintiff. Separate awards of punitive and compensatory damages had not been requested, but the jury had been instructed as their right to assess punitive damages against the defendants, and I feel that the verdict as rendered undoubtedly includes a punitive award as well as compensatory damages.

I feel that the verdict of $25,000 is excessive. I have considered fully the different grounds of damages which were properly compensable, and the plaintiff’s lawful claim, as well, to punitive damages. I have decided that it is necessary not only to eliminate the plaintiff’s claim for $2,500 damages for the loss of his home, but to further decrease the plaintiff’s award by the sum of $5,000, thus reducing the verdict to the sum of $11,500.

The plaintiff having signified his acceptance of the reduced verdict the rule to show cause is discharged.

Judge Palmer in setting aside the verdict of $25,000 recovered on the second trial, ruled that costs were to abide the event. In view of the verdict recovered by the plaintiff on the third trial, counsel for the plaintiff may submit an order which will provide for the allowance of costs on the second trial, as well as the third trial.


author: Giordano, C. P. J.

text:
    Monmouth County Orphans Court.
    IN THE MATTER OF THE ESTATE OF MARTIN TENNESON, DECEASED.
    Decided April 15, 1940.
    For Eolf A. Christensen, Norwegian consul-general, representing the next of kin, Louis R. Kagan.

    For Dr. Theodore Schlossbach, a creditor of Martin Tenneson, deceased, Benjamin M. Schlossbach.

   Giordano, C. P. J.

This matter comes on before me in the nature of an application for letters of administration by Dr. Theodore Schlossbach, a creditor of the late Martin Tenneson, who died a resident of the borough of Bradley Beach, in this county, in the year 1939, and a cross application by Eolf A. Christensen, Norwegian consul-general, representing the next of kin, all residents of the Kingdom of Norway. Martin Tenneson according to the proofs submitted was an alien resident at the time of his death.

The memorandums filed with the court discuss at great length the right of a foreign consul to be appointed administrator of an estate. There is in existence a treaty between the Kingdom of Norway and the United States, which contains “the most favored nation clause,” and it is maintained that as a result of this treaty the Norwegian consul has an exclusive right to administrate all estates of all subjects of the power he may represent, who may die intestate in this state.

Current decisions on the subject hold that where a treaty is in existence, that a foreign consul majr be appointed administrator of such estates. This is not an exclusive right, nor is it a superior right. Consuls are given the right to be one of those who may be appointed as administrator, and this qualifies them as proper parties to receive letters of administration. It does not exclude others ordinarily entitled to letters.

The Revised Statutes under title 3 :7-6 provides as follows:

“If any person dies intestate, administration of the personal estate of such intestate shall be granted to the surviving spouse of such intestate, if he or she will accept the same, and, if there be no such person, then to the next of kin of such intestate, or some of them, if they or any of them will accept the same, and, if none of them will accept the same, then to such other proper person as will accept the same.”

The above section controls this question, and I think that upon the principle which underlies the grant of administration, only one result must be reached. The principle referred to is that the administration of an estate is to be committed to those who are the ultimate or the residuary beneficiaries; that is, to those to whom the residue of the estate will go, when the administration is completed.

The right of administration-grows out of the right to distribution, and those, therefore, who are entitled to intestate’s clear estate, have an exclusive primary right to administration, and where the court has discretion to select one or more from a class, and there are several claimants, it should, in deciding, in whom the grant should be made, give full consideration to not only the moral fitness and integrity of the several claimants, but to all factors which are pertinent to the best interests of the distributees.

In the situation before me all of the next of kin have by power of attorneys and renunciations designated the Norwegian consul-general of New York, in the United States, as their nominee and lawful substitute, to apply for and obtain letters of administration of the estate of the said Martin Tenneson, deceased.

As a general rule, the court would approve the nominee designated by the next of kin against whom no objection exists, although it is not bound to do so. In the present instance, the court takes judicial notice of the chaos that now exists in the Kingdom of Norway as a result of the German invasion, and, because of the uncertainties of war and the status of the Norwegian government, the court is of the opinion that it would be for the best interests of all concerned to designate a person who would be in a position to carry out the administration of this estate to its full completion without interruption on account of any eventualities.

Where as in the instant application, objection is raised to the appointment of a creditor, by the next of kin, who are also applying, and who ordinarily would be entitled to administration, the court is of the opinion that the creditor should withdraw.

The application of Dr. Theodore Schlossbach and Rolf A. Christensen, Norwegian consul-general, are refused, and the court will appoint a stranger as administrator of the estate of Martin Tenneson, deceased.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    SAMUEL SVEREPA, ALSO KNOWN AS SEMEL SVEREPA, PETITIONER, v. THE MANHATTAN RUBBER MFG. DIVISION OF RAYBESTOS-MANHATTAN, INC., RESPONDENT.
    Decided April 18, 1940.
    For the petitioner, Nathan Rabinowitz.

    For the respondent, Norman E. Darmstatter and James J. Skeffington.

   % % íjí i¡i j-j & sH

There is no question, according to the evidence adduced in this case, that the petitioner is now suffering with a disability equivalent to total, that is, the condition of hemiplegia, involving a paralysis of his entire left side, renders him unfit for any type of gainful employment. The sole issue, decisive of the present case, is the question of whether or not the hemiplegic condition is due to a compensable accident or due to natural causes.

hTow a hemorrhage in the brain or in any other part of the body is the same, that is, the resulting effect is the same whether it be caused by trauma or by a diseased vessel wherein a rupture spontaneously takes place without any outside force or violence. So that when the foreman returned to the basement after being absent for a half hour or so, and observed the petitioner lying on the floor, the hemiplegia had already taken place; whether it was caused by a direct blow to the head or by a diseased vessel, rupturing oí its own accord, is a matter of proof.

The case is simply this—and its solution turns on this point—if the petitioner’s testimony is worthy of belief and is to be accepted as representing the true factual situation, then the petitioner is entitled to a recovery. He testified that on the day in question he was standing on a barrel in a storage basement drilling holes in a concrete beam. I think it might be well to clarify any misunderstanding as to the size and shape of the said barrel, by briefly describing it: It was a low type drum-shaped wooden structure about two feet high. The concrete beam in which the holes were being bored was approximately six feet distant from the floor. While it was physically possible to manipulate the hammer and chisel with both feet on the floor as indicated by counsel for the respondent, it was necessary for the petitioner, in order to get proper leverage on the hammer and to swing his arms freely from the most advantageous position, to elevate himself two feet or so from the floor. This was quite apparent on inspection of the premises. Photographs of the basement which were introduced in evidence seem to corroborate the fact, that to perform the job while standing on the floor, both arms would have to be stretched upward to their full length. I don’t think it has been seriously controverted by the respondent that, in doing this particular job, the petitioner stood on some low object to elevate himself somewhat.

Petitioner, according to the testimony, was assigned to drilling holes in the concrete beams as his first job on the morning of June 28th, 1937. He was instructed by Musial, his foreman, to make ten or twelve holes in two overhead concrete beams alongside the various aisles in the basement; that he had finished six holes in the first beam and was working on the second beam in which he had already completed two holes and was drilling the third hole when the mishap took place. He testified that during the early part of the morning while he was engaged on the first six holes, he experienced a peculiar weak and sickish feeling, I believe he referred to it as a poisonous feeling; that he became ill due to this nauseous feeling; that he went outside for awhile to get some fresh air and that he then returned to work. While he described the atmospheric condition in the basement as fumes and gases, I am satisfied what he actually meant was obnoxious odors or at least odors with a very unpleasant smell. Now according to his testimony, while engaged in drilling the third hole in the second concrete column, he became ill again from these “so-called fumes;” and fell to the floor, striking his head against one of the barrels in the aisle. That, in substance, is his testimony. He seems to know little as to what took place thereafter, but he recalls that when Musial returned to the basement sometime later, he (petitioner) was still lying helplessly on the floor, with his body partly elevated, that is, his head was resting against one of the small barrels.

Now, what appears to be a very significant factor in the case is this: during the entire period in which petitioner was engaged drilling holes, he was alone in the basement. Whether or not the accident as described by him took place is a matter solely within his peculiar knowledge; particularly the act of falling and striking his head against a barrel; all of which in the final analysis becomes a question of credibility, pure and simple. No one witnessed the occurrence. Musial, the foreman, was called away from the basement for a half hour or so to make an inspection in the yard, of freight trains loaded with materials, which required checking by Musial, before unloading. This task consumed about a half hour. He returned to the basement immediately thereafter.

Obviously the respondent’s sole defense is an. attempt to discredit petitioner’s testimony as to what took place on the morning in question. Of course, when petitioner was found lying on the floor by Musial, partly slumped over on a barrel, he had already vomited, because, as I recall the testimony, there was presence of a vomitus smell and residue, which to all intents and purposes had come from the petitioner. He wasn’t at all talkative at the time. It is true that his explanation to Musial is rather meager, namely, as I recall it, “gas got me; I fell.” There is no doubt in my mind at that time the effect of petitioner’s condition, that is, the cerebral hemorrhage, had become plainly manifested. While he was conscious, yet he wasn’t, in a true sense, fully oriented to the extent of a normal person. The reason for his failure to talk while being taken home in the car of a fellow-worker, accompanied by two other fellow-employes, is quite obvious— he was too sick. To one so seriously ill with a stroke of apoplexy, it is quite understandable that he would not be in talkative mood; not even to the point of telling his friends what had happened. I, therefore, attach very little weight to such circumstances, to wit, his failure to talk to his co-workers during the trip in the automobile to his home. As a matter of fact, as I recall the testimony, he merely pointed out the house where he lived. The question as to whether or not there was any evidence of external injury is likewise in conflict ; particularly as to whether there was a bump or lump on his head. As I recall the testimony, however, the area where the petitioner claimed there was a bump or swelling, and which was corroborated by his wife, was in the hairy portion of his head. Respondent denied the presence of any such lump. Since the petitioner has a very thick thatched head of hair, it is within reasonable probability that a casual observer, not making a careful examination, might overlook such bump or lump hidden inside the hair portion of the head.

Aow it seems to me that the respondent’s testimony, while a direct attack upon the petitioner’s credibility, attempts to ascribe the hemoplegia to natural causes, independent of trauma, and superinduced by excess drinking the night before. It is negative testimony to a large extent. I feel that the doctrine as enunciated in the case of Atchison v. Colgate Co., 102 N. J. L. 425; 131 Atl. Rep. 921, is controlling in the present situation, to wit: “If the employer seeks to avoid liability for a cause for which it is not responsible, the burden of proof is oil the employer to show such cause.” Therefore it seems to me in line with that doctrine the burden of evidence shifted upon the respondent to prove some other cause if it would escape liability on that ground. The only “other cause” it advances is that the petitioner had been drinking freely the night before; that he may have suffered from some of the residual effects of a hangover; and when he reported for work on the morning of June 28th, 1938, the weak feeling in his general system caused him to vomit and fall. Now of course, if that be so, the respondent would be entitled to a dismissal of the petition; but I feel again a very significant fact is the lack of proof of whether the vomiting preceded the fall or the fall preceded the vomiting. No one but the petitioner is competent to testify whether the fall preceded the vomiting or whether the vomiting spell preceded the fall; since both the fall and the vomiting spell had taken place when the petitioner was found lying on the floor by Musial on his return to the basement. It is true that most any kind of shock may be accompanied by vomiting. In other words, a person, as here, who falls and strikes his head is likety to be seized with subsequent vomiting. There is no evidence by which an inference might be drawn that the petitioner’s vomiting preceded the fall or that the fall was brought about by a weak spell caused from excess drinking the night before all of which made him lose his balance and fall to the floor.

I made a personal inspection of the premises upon the conclusion of the trial which has proved helpful to me in arriving at a decision. The premises consisted of a large basement airiated by numerous vents in which were stored various materials, in barrels, bags and other containers, systematically placed in aisles and labeled with overhanging signs. However, there was one thing quite noticeable, and that was the presence of a very peculiar and unpleasant odor. Strangely, this odor has been described by the chief chemist and by several other employes, whose testimony in the main seemed to impress me quite favorabty, as aromatic or a smell similar to that found in an apothecary or drug store. From what I observed at the time of the inspection and from my reaction, I.,am satisfied the particular odor was quite different from that. It was a conglomeration of various odors all mixed into one, and I can readily understand how it might have an unfavorable reaction on one’s sjrstem, particularly if one is-—■ well, slightly below par such as the petitioner was claimed to have been, according to the testimony of the respondent. If, as claimed, the petitioner had been drinking the night before and his stomach was still weak from a hangover, certainly this pungent odor as 1 observed it on my inspection and which I assume existed to the same degree on June 28th, 1938, would in my opinion, be a precipitating factor in producing the weak spell, the fall and the after-events which took place. In nowise has his testimony been successfully attacked as to the necessity of leaving the basement on the first occasion in search of fresh air. No one was present to witness the incident since Musial was engaged elsewhere. Petitioner stated that after finishing the last hole in the first column of six holes, he felt a little weak to his stomach, went outside for some fresh air and when he returned to the basement he felt all right again. He then continued at his work and had completed two holes and was on the third hole of the second column when he fell.

It seems to me in short, therefore, that we are dealing with a case in which the facts, as established by the more credible testimony lead to the inescapable conclusion that the petitioner has sustained the burden of proof in showing that trauma, following the fall, was the cause of the hemorrhage in the brain and not a spontaneous rupturing of a diseased vessel weakened by arteriosclerosis. Petitioner’s testimony of an accidental fall induced by conditions of his employment has not been overcome by the respondent in its attempt to establish some other cause. In so far as the testimony of Musial is concerned, it must be remembered that he still works for the respondent and is not on friendly terms with the petitioner. It became quite apparent from the testimony that strained feelings existed between them. At one time, Musial was the tenant of the petitioner and became incensed when the petitioner raised his rent, subsequently moving elsewhere. I mention this only as a means of explaining the sharp conflict between the testimony of the petitioner and that of Musial. However, I am inclined to accept the testimony of the petitioner as the more credible.

In so far as the med ical testimony is concerned there seems to be no serious dispute between the doctors as to the condition of the petitioner and the extent of his present incapacity. They have all testified in substance, that he is suffering from the effects of a hemiplegia; that his paralysis involves his entire left side; that his ability to work is practically nil, and that his present disability is 100 per cent, of total.

Accordingly, I have reached the conclusion that petitioner has sustained the burden of proof in establishing his right to compensation, namely that on June 28th, 1938, while drilling holes in a concrete column, standing on a barrel two feet in height, he became nauseated with a sick feeling to his stomach by reason of obnoxious odors permeating throughout the basement, causing him to lose his balance and fall, striking his head against one of the small barrels and that as a result of the fall superimposed upon an already sclerosed condition of his arterial vessels, he suffered a cerebral hemorrhage, resulting in his present hemiplegia. I feel satisfied from the evidence that the hemorrhage involved one of the smaller vessels in the brain because the petitioner was not seized with immediate unconsciousness. A trauma may cause a hemorrhage in a large vessel as well as in a small vessel. I do not attach much significance to the contention of the respondent’s counsel when he argues to the effect that absence of unconsciousness immediately following the fall disproves that a hemorrhage took place at the time when Musial discovered petitioner lying on the floor.

❖ ❖ ❖

John J. Stahl,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    ARTHUR MITCHELL, PETITIONER, v. MAXWELL J. TAYLOR, CLARA F. TAYLOR AND CLIFFORD DYE, T/A M. J. TAYLOR CO., ET AL., RESPONDENTS.
    Decided April 26, 1940.
    For the petitioner, Perry E. Belfatto.

    For the respondent, Herman M. Wilson.

    For Hew Amsterdam Casua^ Co., William A. Davenport.

   In the case sub judice, while the question of coverage has been raised as well as the question of policy cancellation, the primary question to be determined is whether or not petitioner is suffering from lead poison as alleged and the extent of disability resulting therefrom.

I will consider that question first.

❖ * ❖ * iji * £

The petitioner testified that he was in employ of respondent, a painter and decorator. That his duties were that of a painter both brush and sprayer; that about three or four months prior to August 20th, 1938, he began to have pains in his stomach. He gradually felt worse and about two months prior to that date he became ill, gradually becoming worse until August 20th, he was compelled to cease work. Prior to his employment with the respondent, he was in good health. His complaints which gradually came on prior to his cessation of employment, were vomiting, inability to eat, headaches, weakness of upper and iower extremeties, constipation, nervousness and a bad taste in mouth.

Dr. McCartie, who treated petitioner from October 1st, 1938 to January 5th, 1939, dikgnosed condition as chronic lead poison. Complaints received by him were similar to those testified by the petitioner. Blood and urine tests made by the doctor substantiated his diagnosis. There was lead in the urine and a positive blue line.

Dr. Blumberg, who examined petitioner on January 9th, 1940, found various neurological findings which he ascribed to lead exposure and estimated the disability as twelve and one-half per cent, of total. Dr. Russomanno examined petitioner on October 18th, 1939, and received history as testified to by petitioner as well as complaints and diagnosed condition as lead poison. He rendered a series of treatments which in his opinion were beneficial to petitioner. He estimated permanent disability as fifteen per cent, of total. He further testified that on his first examination, petitioner’s disability was from twenty-five per cent, to thirty-five per cent, of total.

Dr. Albano, who made a blood and urine analysis October 26th, 1939, found traces of lead in the urine but blood picture was negative.

Record of Newark City Hospital introduced by respondent reflect fact of petitioner being admitted March 2d, 1939. His condition was diagnosed as chronic lead poison for which he was treated. He was discharged on March 10th, 1939.

A lead and feces analysis made March 9th, 1939, disclose no lead.

Dr. Emmer examined petitioner on October 1st, 1938, for respondent. He testified that there was no lead intoxication or any acute symptoms suggesting lead poison. He was of opinion that condition could be due to infection of gall bladder.

After careful consideration, I am of opinion that petitioner is suffering from the residual effects of lead exposure and is entitled to compensation both for temporary and permanent disability.

The compensation rate is $20 per week.

Under date of December 4th, 1939, attorney for respondent moved that New Amsterdam insurance Company be joined as a party defendant. This motion was granted. It appears that respondent was covered by a workmen’s compensation and employers liability policy issued by that company. There is a question of coverage.

Much testimony was taken relative to that feature. This testimony developed the fact that petitioner’s last day of employment was August 20th, 1938.

Textile Leather Corp. v. Great American Insurance Co. et al., 156 Atl. Rep. 840, holds that the time fixed for compensation for disability by reason of certain occupational diseases is when incapacity occurs and not when poison specified makes its first appearance.

Belanowitz v. Travelers Insurance Co., 123 N. J. L. 574, holds that the right to compensation for an occupational disability accrues when the disability occurs, not when the first symptoms appear.

Domscheit v. Natural Products, 185 Atl. Rep. 483, also held as two previous cases.

Insurance Company alleges that notice of cancellation was mailed August 8th, 1938, effective twelve-one A. M., August 19th, 1938. Respondent admits receipt.

The questions involved relative to coverage and cancellation are contractual and not within the jurisdiction of the bureau. It does not lie with me to determine such issues, see American Mutual v. Chodosh, 123 N. J. L. 85.

I am finding for the petitioner, against the respondent Maxwell J. Taylor, Clara F. Taylor and Clifford Dye, jointly, severally or in the alternative and also trading as M. J. Taylor Company.

i'fi H? H< H* He H<

Johh C. Wegnek,

Deputy Commissioner.