text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANCES MOORE, PETITIONER, v. CITY OF PATERSON, RESPONDENT.
    Decided September 5, 1939.

      For the petitioner, Nathan Rabinowitz.

    For the respondent, Salvatore D. Viviano.

   The above matter coming on for hearing, and having been submitted to me for decision, I hereby find and determine as follows:

This is a proceeding brought by Frances Moore, widow and sole dependent of Edward Joseph Moore, against the city of Paterson, under an act entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder,” approved April 4th, 1931, and the acts amendatory thereof and supplemental thereto, to recover compensation for his death by accident arising out of and in the course of his employment as a fireman of the city of Paterson.

I find from the proofs that on July 11th, 1938, Edward Joseph Moore, husband of petitioner, was a member of the fire department of the city of Paterson. On that day he was on twenty-four hour duty and shortly before five p. m., he ate his supper, consisting of sandwiches and hot coffee, at the fire house. A few minutes after five, while he was on the second floor of the fire house, an alarm was sounded. At that time two of the members of his company were off duty, leaving three men to answer the call. Decedent’s duty was that of a hoseman and in connection therewith he mounted the rear part of the automobile fire truck and proceeded to the fire which was at Lewis street and Beckwith avenue, Paterson, New Jersey, in the plant of the Wright Aeronautical Company. When the truck arrived at the scene of the fire, decedent left the truck and proceeded to get enough hose off the truck to attach it to the hydrant. He connected the hose to one of the outlets of the hydrant and after that was done, he approached one of his superior officers approximately three or four hundred feet from the hydrant and made inquiry of him as to whether or not he should turn on the water. He was given the signal to turn on the water, whereupon he turned around running in the direction of the hydrant, apparently for that purpose. The water was subsequently turned on and he was found slumped over at the hydrant, then fell to the sidewalk with the wrench which was used to turn on the water, lying on the ground a few feet away from him. This wrench was a part of the ordinary equipment used by the firemen for the purpose of turning on the water. In turning on the plug of the hydrant, certain physical effort was required by the deceased, the testimony showing that probably eight or nine turns were required with the wrench in order to release the water. It was shown that just before decedent collapsed his facial appearance gave indication of pain. He was in physical distress, his complexion changed from that of a flush to that of a pale complexion, he vomited foodstuff and finally fell to the sidewalk on his stomach, face down. Two men nearby came to his assistance attempting to sit him up and revive him, but to no avail. Eventually Dr. Briody, the fire department surgeon, made a physical examination, pronounced him dead, giving his opinion that the death was due to acute cardiac dilatation.

Respondent contends that deceased did not die from injuries sustained in an accident arising out of and in the course of his employment and that decedent did not meet with an accident resulting in his death, but that his death was due to natural causes. Petitioner, however, contends that this case is in line with the cases where death is due to over-exertion or physical effort, particularly where the accident, as here, was suffering from a predisposing cause, a disease of the heart, prior to the date in question, with degenerative changes consisting of arteriosclerosis and hypertension.

There is no question, through the medical testimony that has been adduced by respondent’s physicians as well as those of the petitioner, that the decedent was suffering from cardio degeneration, hypertensive heart, a beginning decompensation, arteriosclerosis and high blood pressure. The decompensation of the heart, the arteriosclerosis,- the hypertension and high blood pressure were found by Dr. Cremens, who made a physical examination of the petitioner several days before the fatal occurrence at which time he found his blood pressure was much over two hundred. The proofs are persuasive that decedent died from acute dilatation of the heart and I so find.

In Geizel v. Regina Manufacturing Co., 96 N. J. L. 31; 114 Atl. Rep. 328; affirmed, 97 N. J. L. 331; 116 Atl. Rep. 924, it was held that where one suffers a physical illness or disease, and then meets with an accident which brings into acute activity the diseased conditions, which hastens, or causes death, such an accident is within the purview of the Workmen’s Compensation act and compensable as such.

In the ease at bar, I am convinced that had decedent not answered the alarm on the day in question, which was a very warm day, and been put through the various acts of physical exertion testified to, and the excitement that always accompanies the answering of a call to a fire, he would not have died of acute heart dilatation on that day. There is no question in my mind that the death taking place on that day in his impaired state of health was due to the demands made upon him by his employment.

In Winter v. Atkinson-Frizelle Co., 88 N. J. L. 401; 96 Atl. Rep. 360, a case of acute dilatation of the heart, decedent fell while on the job striking his chest. He was examined after the accident and found to have a heart irregularity and aneurysm of the aorta. About a month after this accident, while doing some heavy lifting, he fell dead. It was held that the exertion in connection with the heavy lifting was an accidental injury and that the death was caused by accidental injury notwithstanding the predisposing condition that decedent was suffering from prior thereto.

In Bernstein Furniture Co. v. Kelley, 115 N. J. L. 500; 180 Atl. Rep. 832, the decedent was engaged as a delivery man in moving furniture. While delivering some furniture from a truck, he carried a heavy settee up several flights of stairs to the fourth floor of an apartment house, put it down at the place where he was to deliver it, went to the window, slumped over and died. He did not strike his head or body as he fell. The incident was held to be an accident and the death was held to arise by reason of an accident occurring out of and in the course of the employment.

In the recent case of Bollinger v. Wagaraw Building Supply Co., 122 N. J. L. 512; 6 Atl. Rep. (2d) 396, it was held that death from disease alone during the employment will not suffice, but injury or death which on proofs that are sufficient and persuasive, would not have occurred but for the services rendered in the employment, amount to injury by accident. I am satisfied, and I find, that but for the efforts that were put forth by the decedent in fighting this particular fire and the exertions and excitement incident thereto, the decedent’s death would not have happened on that day and at the time that it did happen. This conclusion is supported not only by the testimony of petitioner’s medical witnesses, but in a great measure by respondent’s medical witnesses as well.

I am satisfied and find that the unusual exertion and strain under which deceased labored just prior to as well as at the time of the actual fighting of the fire, are all connecting links making a complete chain of causation resulting in the heart attack and death.

I, therefore, find, analyzing both medical and lay testimony, that petitioner has sustained the burden of proof showing that decedent, Edward Joseph Moore, met with an accident which arose out of and in the course of his employment resulting in his death.

The testimony shows that petitioner was living with deceased, her husband, at the time of the death, had so been for many years prior, thereto, was being supported by him, and was part of his household, and I, therefore, find petitioner is entitled to the benefits of the Workmen’s Compensation act-as a total dependent.

The wages of the deceased- were twenty-three hundred ($2,300) dollars a year', making his weekly rate forty-four dollars and twenty-three cents ($44.23) making the dependency rate fifteen dollars and forty-eight cents ($15.48) which is thirty-five per cent, of same.

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John J. Stahl,

Deputy Commissioner.


source: Caselaw Access Project

author: William A. Smith, C. C. J.

license: Public Domain

text:
    CHARLES SOMMER, Jr., PLAINTIFF, v. WORKINGMEN’S BUILDING AND LOAN ASSOCIATION OF NEWARK, A NEW JERSEY CORPORATION, DEFENDANT.
    Decided February 9, 1939.
    For the plaintiff, Sidney Finkel.

    For the defendant, Lowy & Lowy (by Louis J. Cohen).

   William A. Smith, C. C. J.

The above matter was regularly reached for trial before me on December 6th, 1938, and counsel presented a transcript of the pleadings together with a stipulation of fact. Before drawing any jury counsel foi the plaintiff moved for a judgment on the pleadings and the stipulation, claiming that under the grounds of his motion there was no issue of fact to be tried out; if the motion was denied it was submitted that additional evidence might be necessary with reference to the value of the assets of the defendant corporation, it being contended, however, by the plaintiffs that such testimony should be precluded by estoppel, but if it was permitted, that both sides would have the right to offer such testimony. On this admission I advised counsel that I would give them my views on the issues, having in mind the fact that if testimony as to value was admissible, they would have their chance for trial with submission of evidence.

The action is brought upon three counts, all of which seek to recover the matured valué of fifty shares of stock in the defendant corporation.

The first count alleges that the plaintiff subscribed for fifty shares on April 1st, 1927, and the defendant agreed to pay $200 a share at maturity; that the shares matured on April 1st, 1932, and such maturity was so determined by the defendant and that a demand for payment has been made; that on December 23d, 1932, $2,000 was paid on account.

The second count is to the same effect with the additional allegation that the defendant declared and acknowledged its indebtedness.

The third count is also to the same effect, but alleges that the indebtedness was due in accordance with the by-laws and the regulations of the Department of Banking and Insurance.

Fifteen separate defenses are set up in the answer. The fourth and seventh are abandoned by the defendant pursuant to the stipulation. The other defenses are: 1. That the shares were not matured on the date alleged or since; 2. the earnings were insufficient to mature the shares; 3. the shares were matured by mistake in crediting $1,961.80 to the plaintiff’s account; 5. orders of the Department of Banking and Insurance beginning with order No. 1 dated March 14th, 1933, made pursuant to the act of March 10th, 1933, required additional reserve which has ■ diminished the value of the shares as theretofore figured by $1,961.80; 6. that the indebtedness due the plaintiff, if anything, is only in the sum of $6,820, being ascertained by deducting from the $10,000 the previous payment and the deduction referred^- to of $1,961.80; 8. section 11, chapter 59, laws of 1935, amending section 52 requiring payments of matured shares in the order that they come due, and that there are. other shares due and unpaid ahead of the plaintiff’s; 9. this refers to the same statute as under the eighth defense and claims that it provides that the matter of disbursement of net receipts and that the plaintiff has no right to sue so long as the defendant applies funds as required by section 11; 10. the plaintiff is not a creditor; 11. chapter 65 of the laws of 1925, being the revision of the Building and Loan laws, provides that membership continues until the holder of shares which are lapsed, matured, or withdrawn have been paid; that the plaintiff is a member and payment now would prefer him over others; 12. the plaintiff is a member of the defendant association and has to bear his proportionate share of losses, and the losses to the defendant have reduced the shares below maturity value; 13. this sets up a prior right of creditors for moneys borrowed by the defendant association; 14. that the shares never attained the value of $200; 15. statutes passed subsequent to the subscription for the shares apply and bar the plaintiff’s suit.

To these defenses the plaintiff has replied in four separate replies besides: 1. a general denial; 2. subdivided as follows: A. that the shares matured by resolution of the board of directors in annual meeting required by the constitution and by-laws; B. that the defendant recognized the plaintiff as a creditor in the sum of $10,011.80; C. payments on account have recognized the indebtedness; D. acts of the legislature are not retroactive; 3. this sets up estoppel as stated in grounds A., B. and C. of the second paragraph of the reply; 4. this sets up waiver as stated in A., B. and C. of the second paragraph of the reply.

The stipulation which is submitted shows that the plaintiff did become a member as of April 18th, 1927; that the constitution and by-laws which were in effect at that time have been revised under dates of 1929, 1932 and 1936; that the plaintiff paid up to March 6th, 1932, $8,050; that profits were apportioned at various dates and at various percentages up to 1932; that on December 23d, 1932, payment to the plaintiff was made in the sum of $2,011.80; that thereafter the defendant association recognized that there was due the plaintiff the sum of $8,000.

At the time the motion in this matter was made the defendant asked permission to withdraw the agreement to paragraph 5 of the stipulation, which reads as follows:

“By a resolution of the board of directors of the defendant association plaintiff’s shares were declared matured on May 6th, 1932, in the sum of $10,011.80.”

I granted this application for this reason: that there was no such resolution passed by the board of directors. There is ample proof, however, in the stipulation that the defendant association recognized the shares as matured.

The stipulation shows that on January liTh, 1934, the defendant established a reserve in the sum of $1,680,341.98 based on appraisals of defendant’s assets made in November, 1933, and on September 28th, 1936, the association increased its existing reserve by a twenty per cent, assessment, which effected a pro rata reduction in the value of all shares remaining unpaid. This assessment was approved by the Commissioner of Banking and Insurance October 8th, 1936, subsequent to the appraisal of the defendant’s assets. The properties were carried at book value.

It is contended by the defendant that the setting up of these reserves subsequently to maturing the plaintiff’s shares have reduced their value below maturity value and therefore the plaintiff is not entitled to payment of his shares. In the stipulation it is stipulated that these reserves are not in excess of an amount required to provide against losses actually sustained and those reasonably anticipated at the time they were established. The defendant claims as against the holder of matured shares unpaid that after maturity and before the payment the value of the shares may be reduced to provide for losses incurred up to the time additional reserve is established. It is also claimed by the defendant that when the plaintiff’s shares were.matured the assets of the association were not sufficient to mature such shares, the assets not having been revalued but having been carried at book value, and at the time of the maturity of the shares, these shares had been reduced below book value. I find that in so far as the defendant’s right to make this claim is concerned, it will not be necessary for this to be determined now.

At the time the plaintiff subscribed for shares, he became a member of the defendant association and his interest in and his relationship to the defendant association was governed by the statutes then existing, and by the statutes then existing his membership continues until the shares are matured and paid. Section 5, chapter 65, laws of 1925. This is a revision of the Building and Loan act and makes provision for membership. It states in part as follows:

“When shares mature and are paid the subscribers thereto or owners thereof shall cease to be members.”

Section 6 of the same act provides that the constitution of the association may be amended; section 58 of the act provides for control over the association’s action by the Commissioner of Banking and Insurance.

It is my conclusion that as long as a member’s shares remain unpaid he remains a member of the association and therefore is bound by the by-laws and constitution of the association as they may be thereafter amended, and bound by the laws, amendments and supplements to the Building and Loan act thereafter adopted and supplemented.

The provision in section 5 with reference to the membership was amended in Chapter 90, Pamph. L. 1932, p. 159, and restates the language referred to in the 1925 act as follows: “When the matured or withdrawal value of shares has been paid, the subscribers thereto or owners thereof shall cease to be members.”

It is my conclusion that the plaintiff, his shares not having as yet been paid, is still a member of the defendant association; he being still a member of the association he is bound by chapter 59, Pamph. L. 1935, p. 142 (R. S. 1937, 17 :12-53). This law, among other things, amends section 52 of the original revision of the Building and Loan act of 1925, the amendment being in reference to the payment of matured shares, and contains this proviso:

“No member to whom any such association shall be obligated for the payment of any maturity or withdrawal shall have the right to bring suit against such association to recover the maturity or withdrawal value of his shares or any part thereof so long as the funds of such association shall be applied as required by this section * *

It will thus be seen that the plaintiff’s right to bring a suit is limited and he cannot sue so long as the funds of such association shall be applied as required by the section referred to. This suit was commenced July 1st, 1937, which is subsequent to the time the 1935 act took effect.

It is the contention of the defendant that applying the act of 1935 to the claim of the plaintiff he is not entitled to payment of the matured value of his shares at the present time. I therefore hold that the defendant has a right to show that the funds of the association have been applied as required by section 52, supra.

The stipulation by paragraph 18 stipulates that the disbursement of funds by the defendant association at all times during the period referred to in these proceedings were made in accordance with the statutes governing building and loan associations and pursuant to the orders promulgated by the Commissioner of Banking and Insurance.

In the case of Myron Horowitz v. Guaranty Building and Loan Association of Newark, 17 N. J. Mis. R. 274, 1 held that chapter 102, Pamph. L. 1932, p. 145, which amended the Building and Loan act of 1925 and provided for a similar provision against bringing suit as to withdrawing members as the 1935 act, supra, provides as to the rights of maturing members, and limits the right to sue by withdrawing member. It seems to me that under the circumstances the question of the constitutionality of the act of 1935, in so far as it applies to the plaintiff, is not in question. If it should be, however, it is my view that the determination of the Court of Errors and Appeals in Bucsi v. Longworth Building and Loan Association, 119 N. J. L. 120; 194 Atl. Rep. 857, is dispositive of the question in favor of the constitutionality of the act. The decision referred to passed upon chapter 102 of the laws of 1932 with regard to withdrawing members. But the act of 1935, supra, has the same relationship to the rights of maturing members as the 1932 act has to the rights of withdrawing members, and I therefore consider Bucsi v. Longworth Building and Loan Association, supra, as authority for the constitutionality of the act of 1935, supra, as to the rights of the plaintiff. I say this notwithstanding what is said in the opinion on page 133 with regard to the right of matured shareholders and the earlier case of Cunningham v. Mutual Building and Loan Association, 72 N. J. L. 175; 62 Atl. Rep. 307.

The Cunningham case was dealing with a statute entirely different and which existed before the Building and Loan act revision of 1925, and what was said in the opinion was not necessary for the determination of the case.

The rationale of the application of the 1935 act to the rights of the plaintiff is demonstrated by the experience during the last decade. If this act is not applied, we find association in the position of being required to pay matured shareholders without cash with which to do so, thereby being forced to borrow money to make the payments to maturing shareholders. The maturing stockholder, as I have said, continues a member until the time of payment and he is therefore obliged to acquiesce in the provisions for the benefit of the association, one of which is to be barred from bringing suit, and so long as the funds of the association are applied as required by the provisions of the act.

I have also considered the questions raised by the plaintiff in his reply that the principles of estoppel and waiver apply as against the defendant. I do not think they do in this case. The plaintiff in this case has not changed his position by reason of any action on the part of the defendant, and therefore there is no estoppel; nor has the defendant waived the defense with regard to the plaintiff’s present right to sue, it having never volunteered to relinquish this right.

The motion of the plaintiff for judgment on the pleadings and stipulation will therefore be denied.


author: William A. Smith, C. O. J.

text:
    Essex County Circuit Court.
    MIRIAM HOROWITZ, PLAINTIFF, v. GUARANTY BUILDING AND LOAN ASSOCIATION OF THE CITY OF NEWARK, NEW JERSEY, DEFENDANT.
    Decided March 24, 1933.
    Eor the plaintiff, George M. Eichler.

    Eor the defendant, Charles Hood (John Warren, of counsel).
   William A. Smith, C. O. J.

The complaint in this case is filed to recover the withdrawal value of two certificates covering five and ten shares, respectively, of the capital stock of the defendant association. After alleging the ownership of the two certificates, the complaint charges that on September 18th, 1931, the plaintiff gave written notice and demand to the defendant that she be paid the value of her shares, but no payment has been made, although more than six months elapsed since the date of the giving of such notice. The complaint then alleges the withdrawal value amounts to $1,959.39 and alleges that' that is due and owing to the plaintiff.

The answer sets up numerous defenses directed to the propriety of present payment of the withdrawal values of the shares. The amended answer reserves the right to address a motion to the complaint as not setting forth a cause of action on various grounds.

This motion attacked the separate defenses on the ground that they were frivolous and insufficient in law, and the cause of action is verified by the plaintiff. No answering affidavits are submitted, but in opposition to the plaintiffs motion the defendant alleges that the complaint is insufficient in law because it does not set out a cause of action, and therefore the defendant claims that on a motion to strike an answer as insufficient at law in opposition to the motion a party may urge the insufficiency of the earlier pleading, and that the earliest pleading that is insufficient must fall. There is therefore set up in opposition to this motion a claim that the complaint is insufficient at law to warrant a recovery, and the defendant is on this hearing entitled to have the question thus raised determined.

The real question presented for my consideration is whether or not the act of 1932, chapter 104, Pamph. L. 1932, p. 175, which amends section 52 of the Revision of the Building and Loan act of 1925, providing under what conditions withdrawals may be had, applies to the present cause of action.

The notice of withdrawal set up in the complaint was served on September 18th, 1931; the six-month period elapsed on March 18th, 1932; the act of 1932 took effect on April 22d, 1932, and this suit was started on June 8th, 1932. So we have here presented the question as to whether this 1932 act applies where the six-month period has elapsed before the act took effect, but where the act took effect before the actual starting of the suit.

By its wording the 1932 amendment applies to all actions commenced after it took effect, because by its concluding paragraph it provides: “A member who has filed a notice or request for withdrawal shall not have the right to sue any such association to recover the withdrawal value of his shares or such part thereof as may not be paid, so long as the funds in the treasury of such association are applied as required herein.”

The very wording of the act directs its application to the time suit is instituted. It says that a member shall not have the right to sue so long as the funds in the treasury of the association are applied as required by the amendment. It is claimed that the act would be unconstitutional if applicable to a cause of action already accrued. Unless there can be no reasonable doubt that the act is unconstitutional, the better practice is to sustain its constitutionality until it is passed' upon by the appellate court. That there is this doubt is clearly shown by the determination of Judge Sooy in a somewhat similar situation in the case of Fornataro v. Atlantic Coast Building and Loan Association, 10 N. J. Mis. R. 1248; 163 Atl. Rep. 240.

The complaint fails to allege a cause of action under the 1932 amendment; namely, that under the application of the funds of the defendant pursuant to the 1932 amendment, the plaintiff is entitled to payment, or that the defendant has failed to disburse to the plaintiff the amount due her pursuant to the provisions of the 1932 amendment. The complaint is therefore insufficient in law and should be stricken out. This determination will place the question in controversy in a position to be immediately reviewed by the appellate court.


author: Hartshorn®, C. P. J.

text:
    Essex County Court of Common Pleas.
    DEWEY FRISBY, PETITIONER-APPELLEE, v. GOOD HUMOR CORPORATION, RESPONDENT-APPELLANT.
    Decided September 20, 1939.
    E'or the petitioner-appellee, Herman M. Wilson.

    Eor the respondent-appellant, William P. Braun.

   Hartshorn®, C. P. J.

The issue here is one of medical fact. That particular fact is the connection, or not, between the sprain or similar injury, of petitioner’s right foot in September, 1936, and the foot’s amputation in the spring of 1938. Irrespective of all other matters, the facts as to petitioner’s condition between these periods are admitted by all the medical men to be of importance. Such evidence is far from complete, and much in dispute.

Therefore, respondent’s offer to prove by Dr. Kessler, as a fact witness, not an expert witness, both his intermediate treatment of petitioner within such period, and petitioner’s admissions to him as to such intermediate condition, would, if received, have had a strong bearing on the crucial issue. Not only was Dr. Kessler not called by respondent as an expert witness on its behalf, but he had no connection whatever with respondent at the time he was a witness to the facts themselves. He was offered solely to prove petitioner’s admissions to him as medical history and his treatment of petitioner immediately thereafter at the City Hospital, as one of the hospital physicians.

Despite this the bureau refused to receive Dr. Kessler’s testimony, based upon its rule 17 that, “No doctor, referee, or other employe * * * shall testify * * * in any formal proceedings in the Workmen’s Compensation Bureau” except as to the service of papers or the authenticity of filed documents. This rule .was promulgated under the statute (R. S. 1937, 34:15-64) authorizing the establishment of “necessary” rules. This rule has been recently construed in the case of Harrison v. Garlitti, 120 N. J. L. 64; 197 Atl. Rep. 377, a decision, of course, binding upon this court.

But this case, as its opinion clearly indicates, applied to far different facts, i. e., in forbidding state doctors to “be retained by either side” for the obvious reason that they would then “soon come to be at least under the suspicion of leaning toward the side paying for their services.” Obviously, the Supreme Court reads the rule as applicable to the facts before it, i. e., the proffered testimony of the state doctor as an expert opinion witness, whose opinion might well he swayed by his retention as an expert and the payment for his services. Bor this swayed testimony to come in fact from the lips of one occupying the influential position of a state doctor, would clearly he against “public policy.” But, by the same token, the Supreme Court did not hold this rule to apply to a mere fact witness, as here. Indeed, the statute authorizing the making of such rule would not seem to authorize any such construction of the rule itself. Bor the statute authorizes the commissioner to make such rules “as may in his judgment be necessary” provided they are “not inconsistent with the provisions of this chapter.” Of course, this does not authorize the exercise of an unbridled arbitrary judgment, hut a reasonable judgment, one which will consist with, and further, the effectuation of the act itself. The essence of the very article of the act in which this section appears (article 4, claims and determination thereof) is the proper proof of compensation claims. Of course, it would be highly improper proof for same to come from the lips of an expert attempting to serve two masters at the same time, i. e., the state and the party who had retained him. On the other hand, if such state doctor were the sole witness to the death of an employe in the course of his employment, the doctor’s inability to testify to such fact would terminate finally the establishment of such just claim on behalf of the employe’s dependents, and would thus frustrate the very purpose for which the act was created.

Any such construction of the act as that contended for by petitioner would thus seem utterly “inconsistent with the provisions of this chapter,” and quite unauthorized, even if same were over intended, which seems doubtful.

The record will accordingly be remanded to the bureau to take the testimony of Dr. Kessler as such fact witness, and for redetermination thereupon.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    FRANK ERNST, PETITIONER, v. RUST ENGINEERING CO., HARTFORD ACCIDENT AND INDEMNITY CO., RESPONDENT.
    Decided September 6, 1939.
    Por the petitioner, David Roslcein.

    Por the respondent, Reginald V. Spell (by M. Gasewell Heine).

   ifc ■ ^ j$: íJí

Prom the testimony adduced before me, I hereby find and determine as follows:

That on or about October 2'5th, 1932, and for a period of time prior thereto, the petitioner was in the employ of the respondent, Eust Engineering Co., as a special police officer on a construction project which was being maintained in Weequahic Park, Newark, New Jersey. At about eleven-thirty p. m. of the night in question, while in the performance of his duties, he fell into a newly evacuated drain basin which was built by the Essex County Park Commission. It was eight feet deep by six feet wide. The petitioner was seriously injured and was in the evacuation for a considerable length of time, and when, after being released by a passerby, he was removed to the Lincoln Private Hospital and thereafter, to the Newark Beth Israel Hospital, where he remained under the care and treatment of Dr. Edward M. Pinesilver. His injuries consisted, inter alia, of a compression fracture of the first lumbar vertebrae, with a traumatic lesion of the spinal cord, a comminuted fracture of the upper end of the right humerus, a relaxation of the anal sphincter, and a concussion of the brain. The petitioner remained under treatment until March 1st, 1933, and was paid compensation for temporary disability therefor, for a period of eighteen and two-sevenths weeks, at the compensation rate of $20 per week, in the amount of $365.71. There was incurred for medical and hospital expenses in an endeavor to relieve the petitioner of his injuries, the sum of $592.70, which sum has been paid by the respondent.

The issue presented before me was one involving the extent of the permanent disability.

There appeared on behalf of the petitioner, in addition to the lay witnesses, Dr. O. C. Beling, Dr. Max Singer and Dr. Edward M. Einesilver. On behalf of the respondent, Dr. A. Cucinella and Dr. Hirschberg testified.

The petitioner testified at length concerning his subjective complaints, difficulty in sleeping, headaches, difficulty with bowel movement, complaints referable to his lower extremities and his irritability and nervousness. I do not hesitate to accept the testimony of the petitioner and the lay witnesses who appeared on his behalf and give it complete credence. I have had an opportunity to observe the petitioner on the stand while he testified before me. I am impressed with his honesty and truthfulness. He has impressed me as a person whose testimony is worthy of belief and I so accept it. The injuries sustained by the petitioner were extremely severe. The petitioner’s doctors are of the opinion that the compression fracture of the first lumbar vertebrae was associated with a traumatic lesion of the spinal cord, and an involvement of the lower extremities and a marked hypaesthesia of the right lower extremity which prevents the petitioner from engaging in his normal activities and affects him considerably in walking. In addition thereto, he has sustained a fracture of the head of the right humerus with a marked disability of the right upper extremity, affecting his normal movements thereof to a marked degree. Associated therewith and attributable to the said accident, the petitioner has suffered a relaxation of the anal sphincter. This has resulted in the petitioner’s loss of control of his bowel movement. Superimposed upon the petitioner’s physical condition, I find that he has emotional instability and numerous psychoneurotic manifestations which followed the cerebral concussion and are attributable to the accident.

I further find that the permanent disability associated with the said accident and from which the petitioner is suffering, is equivalent to eighty per cent, of partial permanent total disability, which entitles the petitioner to receive compensation for a period of four hundred weeks, at the compensation rate of $20 per week, in the amount of $8,000.

I find and determine that from the facts disclosed by the testimony that the petitioner suffered temporary disability from the date of said accident and thereafter for a period of eighteen and two-sevenths weeks, for which the petitioner is entitled to compensation at the compensation rate of $20 per week in the amount of $365.71.

I further find and determine that the petitioner has incurred medical expenses for treatment and attendance by various surgeons in the amount of $592.70, which sum I find to be reasonable charges for the services so rendered to petitioner. The said medical expenses are properly chargeable to the respondent and payable by it under the terms and provisions of the Workmen’s Compensation act.

It appears that said accident and resultant injury and disability suffered by the petitioner, is alleged to have been proximately caused by the negligence of certain third person or persons and by reason thereof, the petitioner became vested with a cause of action at common law against said third person or persons, in addition to his fight of action against his employer under the Workmen’s Compensation act. The petitioner retained Frazer, Stoffer & Jacobs, members of the bar of New Jersey, to investigate, institute and prosecute a common law action on his behalf against said third persons and, by virtue of a retainer agreement, entered into with said attorneys for services so rendered, the said attorneys became entitled to a sum of at least thirty-three and one-third per cent. of the amount of any settlement or recovery obtained from or against said third persons, plus costs and expenses of investigation and suit not to exceed $200. I find that the fees and expenses agreed to be paid in connection with said common law action by the petitioner to the aforesaid attorneys are reasonable fees and charges, and are not in excess of those referred to in chapter 162 of the 1936 laws. R. S. 34:15-40.

A suit was instituted in the Essex County Circuit Court by the aforesaid attorneys on behalf of petitioner herein and against the Essex County Park Commission as third person alleged to be responsible for said accident, and said cause was tried and a verdict of the jury rendered on October 4th, 1936, in the amount of $7,000 and, as a result of a compromise entered into between the respective parties following an institution of appeal from said judgment and verdict, there was paid the sum of $5,000 to the petitioner and his attorneys in full settlement and satisfaction of said judgment. As a result of said judgment and compromise satisfaction thereof, the petitioner became obligated and did pay to the said attorneys the sum of $2,000 and the petitioner furthermore incurred expenses and costs of suit and trial in the sum of $200. Pursuant to the terms and provisions of chapter 162 of the laws of 1936 (R. S. 34:15-40) the respondent is entitled to have and receive a credit on account of his liability under the Workmen’s Compensation act in the amount of $3,133.33.

The respondent has heretofore paid on account of temporary disability the sum of $365.71, on account of permanent disability the sum of $3,913.33, and on account of medical expenses incurred' by the petitioner, the sum of $592.70, making a total of $4,871.74. The respondent and its compensation insurance carrier, heretofore, and on or about the 4th day of December, 1936, were paid and received the sum of $1,514.49 from the moneys recovered by the petitioner in the aforesaid third party action, and in consideration of the payment of said sum, together with other consideration, released and discharged the claim of the respondent employer and respondent carrier from any claims by reason of the payments of compensation made and medical treatment rendered the said petitioner in connection with his said accident of October 26th, 1932.

There was also submitted to me, a stipulation of facts duly consented to by the attorneys for the respective parties, setting forth the details concerning the disposition of the funds paid in satisfaction of the judgment recovered in the action at law. I'have carefully considered the same.

It is therefore, on this 6th day of September, 1939, ordered that judgment be rendered in favor of the petitioner and against the respondent and its insurance carrier, the Hartford Accident and Indemnity Co., as follows:

For temporary disability, a period of eighteen and two-sevenths weeks at the compensation rate of $20 per week, total........................ $365.71

For permanent disability eighty per cent, of partial total disability which is equivalent to a period of four hundred weeks at the compensation rate of $20 per week, total.............. 8,000.00

For medical expenses incurred in connection with - treatments, &c., the amount of.............. 592.70

$8,958.41

It is further ordered that there be credited on account of the foregoing total liability due by the respondent to the petitioner, the sum of $4,871.74 paid by the said respondent to and on behalf of the petitioner, and the further sum of $1,160, which represents the net proceeds had and received by Frank Ernst, the petitioner, from said action at law, making a total credit of $6,031.74.

It is further ordered that the balance of $2,926.67 be paid by the respondent in accordance with the Workmen’s Compensation act.

iji ifc & ❖ ❖ *

John C. Wegner,

Deputy Commissioner.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    MOE KUPFERMAN, PETITIONER, v. ART COLOR PRINTING COMPANY, RESPONDENT.
    Decided February 24, 1939.
    For the petitioner, Charles E. Stalter and Samuel Doane.

    For the respondent, Walter W. Hubley, Jr., and George E. Meredith.

   The formal petition in this case alleged that the petitioner suffered an accident on December 30th, 1937, at which time the petitioner, a linotype operator, alleged he suffered an injury to his cardiac system, as a result of a strain, while lifting and carrying certain galleys or trays of type. The formal petition further alleged that the petitioner is totally and permanently disabled as a result of his present condition.

In addition to the petitioner several lay witnesses were called on behalf of the petitioner. The petitioner called as his medical witnesses Dr. T. D. Spritzer, the treating physician in this case, Dr. Francis E. Meyers and Dr. J. Yaeger.

Various X-rays and electro cardiograms were offered into evidence on behalf of the petitioner.

The respondent called various lay witnesses, and also called Dr. A. E. Jaffin, Dr. Aaron Parsonnet and Dr. A. C. Kuoff.

The records of St. Peter’s Hospital, New Brunswick, New Jersey, were offered into evidence by the respondent.

After careful consideration of the evidence presented in this matter, as well as the exhibits offered into evidence, and the testimony of the various witnesses, I am of the opinion that the petition filed in this ease must be dismissed, for three reasons.

' The first of these reasons for the dismissal of the petition is that the petitioner has failed to sustain the burden of proving that the respondent had knowledge of the injury alleged within the ninety-day period required by the Workmen’s Compensation act. There was no allegation that there was any written notice served on the respondent or its representative. There is no proof that there was any knowledge of injury furnished the respondent either directly or by way of inference. There were no facts presented by which it could be inferred that the respondent ever obtained knowledge of the injury within the requisite time. It appears from the testimony in this case that the petitioner, after carrying • two double-column galley's of type, which weighed between twenty and twenty-five pounds each, from his machine to a table, a distance of from sis to thirty feet, according to the testimony, lifted the galleys to a table, which table was about hip high, and during this lifting act, or immediately following same, felt a sharp pain in the region of his heart. The testimony is ample to the effect that following this occurrence the petitioner was observed by various people, and talked to various people at the place of employment, and several hours later was removed to Dr. Spritzer’s office, from whence he was taken to St. Peter’s Hospital, New Brunswick. It does not appear from any of the witnesses produced by the petitioner that at any time during the course of the evening in which the occurrence happened did the petitioner make any complaints to anyone connected with the respondent, of any nature, other than that he felt sick or ill. After being confined to the hospital for a matter of some days the petitioner returned to his place of employment and worked several days at short intervals; placed himself under the care of his own physician; was in contact with co-workers and superiors at his place of employment. At no time did the petitioner make any claim that his physical condition was the result of injury, or of any occurrence arising out of his employment. To the contrary the petitioner made no claims and obligated himself for his own medical expenses and, as a matter of fact, paid for same. I am of the opinion that the petitioner presented no satisfactory proof, if it can be considered that any proof at all was presented, to warrant this court finding that the proper notice within the time required by the Workmen’s Compensation act was furnished the respondent. Testimony adduced by the respondent was to the contrary, and of greater weight than any testimony presented by the petitioner.

My second reason for dismissing the petition in this case is that the petitioner has failed to sustain the burden of proving that his present physical condition is the result of an accident arising out of and in the course of his employment. There is no question, from the testimony, that the petitioner in tliis case suffered from a coronary acclusion on December 30th, 1937. The burden is placed upon the petitioner to prove that this coronary occlusion resulted from an accident arising out of and in the course of his employment. It is alleged by the petitioner that he was put to an undue exertion while carying two double-column galleys of type, weighing from forty to fifty pounds, whereas he had been accustomed to carry one double-column galley of type weighing from twenty to twenty-five pounds. I do not feel that the act described can be classified as unusual exertion, particularly when it is taken into consideration, that, from the testimony, the petitioner was an apparently healthy individual, of good stature, and weighing around one hundred and ninety pounds. I do not feel that the petitioner has sustained the burden of proving any unusual exertion or unusual act, arising out of and in the course of his employment, to which his condition could be related.

I also feel that the petition in this case must be dismissed for failure of the petitioner to sustain the burden of proving that his physical condition is resultant from any unusual occurrence or strain in connection with his employment. I feel that the weight of medical testimony in this case was presented by the respondent. The doctors produced by the petitioner testified that the petitioner was suffering from a coronary occlusion, which condition comes about when a clot is formed in the coronary vessel, completely shutting off the blood supply. These doctors further testified that they felt that the undue strain of lifting hereinbefore described could have brought about this condition. From the medical testimony presented by the respondent, which medical testimony this court feels is the more credible and satisfactory, it appears that exertion or effort on the part of an individual would produce an increase in blood pressure, and that the greater the increase in blood pressure the less likelihood of there occurring a coronary occlusion. In other words, a coronary occlusion is more apt to occur when an individual is at rest than when subjected to strain or effort, and the final shutting off of a blood vessel by clotting, causing an occlusion, is not in anyway related to effort or strain. It is to be noted that Dr. Yaeger, an expert called on behalf of the petitioner, testified that a coronary occlusion may come with or without unusual exertion.

Taking all of the testimony, exhibits and arguments of counsel into careful consideration, I, as hereinabove stated, find that the petitioner has failed to sustain the burden of proving that his present physical condition is the result of an accident arising out of and in the course of his employment ; that the petitioner has failed to sustain the burden of proving that his present physical condition could be related to an accident arising out of and in the course of his employment; that the petitioner has failed to sustain the'burden of proving that his employer had notice of the alleged injury within that period of time as required by the Workmen’s Compensation act; and that, therefore, the petition must be dismissed. .

It is, therefore, on this 24th day of February, 1939, ordered and adjudged that the petition of the petitioner be and the same is hereby dismissed and judgment be entered in favor of the respondent.

Chaeles E. Coebin,

Deputy Commissioner.


author: Barbour, S. C. C.

text:
    THOMAS M. HOPPER AND PAUL L. SANDERS, PLAINTIFFS, v. WILLIAM N. GURTMAN, DEFENDANT.
    Decided September 22, 1939.
    For the defendant, Aaron Z. Schomer.

    For the plaintiffs, Charles Bernstein (Emil M. Wulster, of counsel), against the motion.
   Barbour, S. C. C.

This matter comes before the court on motion to strike the complaint on the grounds, inter alia, that it is in part sham and in part insufficient in law.

Of the many questions presented it is necessary to consider only two:

1. Did a purchaser at a judicial sale of a married woman’s separate real property on a judgment against both husband and wife acquire good title free and clear of the husband’s inchoate right of curtesy, title to said property having been acquired by such married woman in 1919 ?

2. Is an attorney liable for an error of judgment where such a sale forms part of the chain of title?

The pertinent facts are:

On May 28th, 1919, Bose Ginenthal became the owner in fee-simple of certain real estate, she being then lawfully married to William G-inenthal, they being still living and married to each other. Children were born of such marriage, capable of inheriting.

On or about October 6th, 1927, such premises became encumbered by a mortgage made and executed by said Rose Ginenthal and William Ginenthal, her husband, to Thomas 1ST. Washburn (of whose estate plaintiffs are trustees) to secure the sum of $10,000.

On August 29th, 1932, judgment was entered in behalf of one Sigmund Gurtman against said Rose Ginenthal and William Ginenthal in the Passaic County Circuit Court. Execution was issued thereon, levy made and the right, title and interest of both defendants in said premises were sold thereunder by the sheriff of Passaic county, at public sale, to said Sigmund Gurtman on or about October 28th, 1932.

On or about May 18th, 1933, Thomas M. Hopper and Paul L. Sanders, trustees of the estate of Thomas N. Washburn, entered into an agreemnt with said Sigmund Gurtman for the purchase from him of said premises for the sum of $105, subject to the aforementioned mortgage.

Thereafter, plaintiffs retained and employed the defendant to examine the title to such premises. Defendant, on or about August 14th, 1933, furnished to plaintiffs a report thereon and certificate of title, accompanying an abstract of title.

In the abstract of title defendant set forth the judgment above referred to, the sheriff’s deed, the mortgage and a certain writ of attachment issued out of the Passaic County Circuit Court on July 30th, 1929, in the amount of $700 at the suit of Abraham Zukofsky against Rose Ginenthal, and certified that he found nothing else of record affecting said property.

The defendant was then of the opinion that the said Rose Ginenthal and William Ginenthal, her husband, were divested of title to such premises by the execution sale and, in reliance on such opinion, plaintiffs took title thereto on or about August 16th, 1933, and paid the agreed purchase price of $105.

Subsequently, plaintiffs were advised by other counsel (the attorney of record in this action, Charles Bernstein) that such execution sale did not divest William Ginenthal of his inchoate right of curtesy in such premises.

It is to be noted that plaintiffs were trustees of the estate of Thomas H. Washburn, the mortgagee, that the abstract of title showed certain liens or encumbrances prior to the lien of the judgment in question but subordinate to the lien of the mortgage, that the mortgage was paramount to Sigmund Gurtman’s title, and that the price paid to said holder of the legal title was $105.

Some negotiations and proceedings were had to try to remove the lien of the writ of attachment but without success. Mr. Bernstein then advised plaintiffs to institute proceedings to foreclose the mortgage “and in that way all the encumbrances, liens and defects, and particularly the encumbrance or defect of the outstanding inchoate right of curtesy of William Ginenthal could be released, extinguished and cleared up.” Such proceedings were instituted and completed, at a cost to plaintiffs of $387.20.

Plaintiffs seek to recover such sum from defendant, alleging negligence in examining the title and wrongful advice and report on the title.

The “encumbrances, liens or defects in title” other than the mortgage, recited in the complaint, are also set forth in the affidavit of Mr. Bernstein, as follows:

“(a) The criminal recognizance in the amount of $300.00, executed by Bose Ginenthal as bailor to the State of New Jersey, on October 25th, 1928, and recorded in Criminal Eecognizanee Book at Passaic County Clerk’s Office.
“(b) The writ of attachment in the amount of $700.00, issued out of the Passaic County Circuit Court on July 30th, 1929, in an action in which Abraham Zukofsky was plaintiff and Eose Ginenthal was defendant, which writ of attachment was recorded in the Passaic County Clerk’s Office in Book C of Attachments, page 128.
“(c) The judgment entered in the Passaic County Circuit Court on August 29th, 1932, in favor of Sigmund Gurtman as plaintiff, and against Bose Ginenthal and William Ginenthal, as defendants, in the total amount of $4,834.40, which judgment was recorded in Book D-2 page 46 of Circuit Court Judgments in Passaic County Clerk’s Office.
“(d) The outstanding inchoate right of curtesy of William Ginenthal in and to the equity of redemption of Eose Ginenthal, his wife, a former owner of the real property aforesaid.”

It does not appear that the recognizance was set up in the abstract of title, but Mr. Wulster, of counsel for the plaintiffs appearing on the motion, agreed that the lien thereof had been subsequently barred by the statute on limitations. The attachment was set up in the abstract and certificate of title as an exception. The judgment formed a part of the chain of title and was not, therefore, an “encumbrance, lien or defect.”

Therefore, the only “defect” with which we are now concerned is the alleged “outstanding inchoate right of curtesy of William Ginenthal.”

Title having been acquired by Eose Ginenthal in 1919, her husband’s interest or estate in her real property is governed by the law as then applicable, not by subsequent legislation.

The Married Women’s act at the time in question (Comp. Stat., p. 3337, § 14) provided “nor shall any judgment or decree against [a married woman], in any respect impair or affect the right of the husband in her lands as tenant by the curtesy, after her death.”

The interest or estate of the husband could not be reached by his creditors. Bucci v. Popovich, 93 N. J. L. 121; 115 Atl. Rep. 95.

Plaintiffs say that since a judgment against the wife could not affect the interest or right of the husband in her separate property, and that since an inchoate right of curtesy could not be reached by the husband’s creditors and could not be sold under a judgment against him alone, it follows that such inchoate right of curtesy could not be reached where the judgment was against both husband and wife.

With this the court does not agree.

Plaintiffs’ brief depends principally upon Bucci v. Popovich, supra. That decision deals only with the right of the husband’s creditors to reach his interest in his wife’s separate real property, separate and apart from her estate therein. Vice-Chancellor Fielder (at p. 511), said:

“If the right or interest which a husband has in his wife’s separate property, either before or after the birth of issue, is a right or interest which, within the meaning of the Bankruptcy act, he could ‘by any means have transferred, or which might have been levied upon and sold under judicial process against him,’ then he may convey or encumber it and his judgment creditors may levy on and sell it under execution and thus for the husband’s right or estate may be substituted the right or estate of an utter stranger with whom the wife must treat whenever she desires to convey her land or any interest therein.”

The learned vice-chancellor’s reasoning is sound and pertinent when applied to a judgment against a husband alone or, as in that case, to the trustee in bankruptcy of the husband, but it falls when applied to a situation where the judgment is against both husband and wife and the entire estate and interest of both are sold simultaneously because, in such case, the wife, being also deprived of her estate, need not “treat with” an utter stranger.

The Married Women’s act, supra, required consent and joinder of a husband to any conveyance or incumbrance of her real estate, at the time in question, but with him joining, she could convey her separate estate and property and with it his inchoate right of curtesy. By such act she could not have, by any separate act of hers resulting in a judgment or decree against her, jeopardized or affected her husband’s interest or right in her property.

Where, however, husband and wife jointly incur a liability resulting in judgment against both it is analogous to incumbering her estate with the consent and joinder of her husband.

The cases cited by counsel deal with situations where a severance of the interests of husband and wife would result, substituting a stranger for the husband. My attention has not been directed by either counsel to any decision of this state where the judgment was against both husband and wife.

Plaintiffs’ counsel, in their reply memorandum, state that Bankers’ Loan and Investment Co. v. Blair (Supreme Court of Appeals of Virginia), 99 Va. 606; 39 S. E. Rep. 231, involved a judgment against both husband and wife. In their first memorandum they quote from the syllabus of the same case and from page 233 referring to a judgment against the husband and alienation by her in which he united. A reading of the decision by the CQurt, in the reports, shows that the judgment in question was against both husband and wife but was held not to be a lien upon the property of the wife which had been conveyed after the judgment was docketed because the description of the wife in the judgment was such as not to put the purchaser on notice. The court then considered the argument that such judgment was at least a lien upon the husband’s estate by the curtesy and held that it was not, as recited by counsel in their original brief. With this there can be no dispute, but the case is not applicable.

Having been referred to no other decision, within or without this state, involving the sale of a wife’s separate property on execution against -both husband and wife, the court’s research reveals the following:

“A valid judgment against both husband and wife may be collected out of the property of both * * * or out of the real estate of which she is the equitable owner, if it is not exempt.” 30 C. J. 1052, § 820.

The Appellate Court 'of Indiana in Sharp v. Baker, 96 N. E. Rep.. 627, held that, while an execution against the interest of either husband or wife who held as tenants by the entirety could not defeat the right of the surviving husband or wife to hold the entire estate, nevertheless “an estate by entireties is subject to sale on execution issued upon a judgment rendered against both husband and wife, unless some reason can be found, arising out of the very nature of the estate, which prevents such a result. * * * By their joint deed, they can dispose of their estate, and by their mortgage they can incumber it. Jointly they have the complete ownership of the estate, with full power to control and dispose of it at will, and it is a géneral rule that property so owned is subject to sale on execution to satisfy a judgment against the owner.”

This was followed by the Supreme Court of Michigan in Sanford v. Bertrau, 169 N. W. Rep. 880, and by the Court

of Appeals of Maryland in Frey v. McGaw, 95 Atl. Rep. 960, and is not in conflict with our own law nor with Bucci v. Popovich, supra.

"We are not now concerned with an estate by the entirety, but the language in the last two sentences above quoted applies with equal force to the separate property of a married woman.

Upon principle, there is no reason why the real estate of the wife and the husband’s interest therein should not be subjected to the payment of their joint debts. They own the entire property. The parts cannot be greater than the whole. They may dispose of it or incumber it by their joint action. Bach is liable to pay the whole judgment and both are liable to pay any part of it. See 30 C. J. 1052, § 820, note 626; Sanford v. Bertrau, supra.

An execution sale on a judgment against the wife alone will not affect the husband’s right in her separate property. Married Women’s act, supra. The husband’s right in such property is not subject to sale on a judgment against him alone. Bucci v. Popovich, supra. The court finds, however, the interest and estate of both husband and wife in the wife’s separate property was subject to sale on a judgment against both, there being no statute to the contrary.

If it were otherwise, chaos would result in the world of commerce, where modern women join with their husbands in incurring joint obligations on the strength of the wife’s ownership of real property. Creditors would be unable to collect their just debts when the only assets consist of real estate in the wife’s name, even though the debt be hers with her husband’s co-liability, because inability to reach the husband’s right in the property would seriously affect the market value. It would then follow that married men and women would find it increasingly difficult to obtain credit. Certainly where both render themselves liable the husband should not retain his incidental interest in his wife’s estate while she loses her legal estate.

The judicial sale under execution on the judgment against Rose G-inenthal and William Ginenthal conveyed all the right, title and interest of both in her real estate in question. The inchoate right of curtesy of William Ginenthal was not outstanding, and the defendant was not in error in his opinion.

Assuming, however, that the defendant was in error in his opinion, but holding to the contrary, he would not be liable for such error in the absence of negligence. The affidavits do not present a jury question on this but rather show conclusively an absence of negligence. The judgment in question was set up as part of the chain of title and the defendant certified that in his opinion the title was good except for the mortgage and writ of attachment.

Our Court of Errors and Appeals, in Morris v. Muller, 113 N. J. L. 46; 172 Atl. Rep. 63, held:

“It is equally well settled that no man, whether skilled or unskilled, undertakes that the task he assumes shall be per- ' formed successfully and without fault or error; he undertakes for good faith and integrity but not for infallibility and he is liable to his employer for negligence, bad faith, or dishonesty but not for loss consequent upon mere error of judgment. ' 3 Cooley Torts (4dh ed.) *472. A lawyer, without express agreement, is not an insurer. He is not a guarantor that the instrument he will draft will be held valid by the court of last resort. He is not answerable for an error of judgment in the conduct of a case or for every mistake which may occur in practice.”

In so far as the complaint alleges negligence it is sham. In the other particulars above discussed it is insufficient in law. The complaint will be stricken.

An order may be presented accordingly.


text:
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    JOSEPH L. POTOMSKI, PETITIONER, v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY, RESPONDENT.
    Decided September 26, 1939.
    For the petitioner, Charles Becker.

    For the respondent, William K. Flanagan.

   $ ^ # % #

On July 10th, 1939, the parties appeared and the petitioner having proposed that he adduce only such testimony as would present the questions of law implicit in his petition, with leave to adduce medical testimony if the decision of this bureau so warranted, and the respondent having agreed to the proposal so made and I having heard and considered the testimony adduced on behalf of the said petitioner and the arguments of counsel, and having read and considered the briefs submitted on behalf of each of the said parties, do hereby determine and find as follows:

1. That on April 24th, 1937, the petitioner sought employment of the respondent as a laborer and to that end executed and delivered to the said respondent a written application entitled “Employment Eeeord” which said application was entirely in the handwriting of the said petitioner, contained a great deal of information concerning the applicant including his education, the names of his previous employers, the nature of his employment by them, the period of such employment, the pay received, the names of his superior officers in such employment, the reasons for his discontinuing such employment, and contained also the names, addresses and occupations of personal references, statement of his hobbies, name and address of his surviving parent and other data which might enable the respondent to decide whether the applicant would make a desirable employe; and, in addition to all of the foregoing, the said application contained in the said petitioner’s own handwriting statements to the effect that said applicant was twenty-one years of age having been born on September 21st, 1915, was five feet ten inches tall and weighed one hundred and forty-eight pounds; and at the foot of the application and above the admitted signature of the petitioner is a printed statement which certifies that all questions on the application have been answered correctly.

2. That upon the execution and delivery of the aforesaid application petitioner was employed by the said respondent and on the date mentioned executed and delivered to the said respondent an agreement in writing to the 'effect that the provisions of section II of the Workmen’s Compensation act was not a part of his contract of employment, that he read the said agreement and understood its meaning and object and this agreement is not only signed by the said petitioner but was witnessed by two witnesses.

3. That thereafter and sometime in the latter part of May or the first part of June, 1937, the said petitioner claims to have sustained an injury arising out of and in the course of his employment; but his testimony with regard to this alleged accident, the date when it occurred, his notifying his employer concerning it and the nature and effects of the said accident upon him are uncertain, vague and, to say the least, do not support the allegations of the petition. In view of another situation disclosed by the proofs and hereinafter mentioned, no decision is hereby made upon this testimony concerning the accident itself.

4. That when the said petitioner signed and delivered to the respondent his employment application and the agreement of waiver on April 24th, 1937, he was not twenty-one years of age although his application gave his birth as September 21st, 1915; and he further testified that not only was his statement of the date of his birth false but that he made the statement with the intent that it would be acted upon by the respondent and that he purposely made the statement in order to induce a belief on the part of the employer that he was then twenty-one years of age when, as a matter of fact, the said petitioner, according to his birth certificate introduced in evidence, was born on September 21st, 1916; and I find and determine that the said petitioner, in addition to the other matters and things above set forth, had the appearance of being of full age, being then more than twenty years and seven months old, weighed one hundred and forty-eight pounds and was five feet ten inches tall.

5. That the testimony of the petitioner himself demonstrates that he made a representation to the respondent concerning his age which he knew to be false; that such representation was made with the intent to influence the conduct of the said respondent and the latter was ignorant of the real facts and in good faith relied upon the representations of the petitioner and will now be substantially prejudiced if the said petitioner be permitted to repudiate his former misrepresentations. In other words, by the petitioner’s misrepresentation of his age the respondent was induced to give him notice that the provisions of section II was not applicable to his employment; whereas, had he told the said respondent the truth and revealed that he was, on the date of his employment, a minor the said respondent would then have been able to give to the said petitioner’s parent the statutory notice of the non-applicability of the provisions of section II to the petitioner’s contract of employment. And I do find and determine from the testimony so adduced before me as aforesaid that the said petitioner is estopped to assert that his employment with the said respondent was subject to the provisions of section II of the act above mentioned and that he is entitled to the statutory compensation for the injuries mentioned and described in his said petition.

It is thereupon on this 26th day of September, 1939, ordered that the said petition * * * heretofore filed by the said petitioner be and the same is hereby dismissed.

Hakky S. Medinets,

Deputy Commissioner.


author: Delaney, C. P. J.

text:
    Passaic County Court of Common Pleas.
    HARRY RIGHTMYER, PLAINTIFF-APPELLEE, v. TOTOWA BOROUGH, RESPONDENT-APPELLANT.
    Decided July 26, 1939.
    • For the petitioner, Nathan Rabinowitz and Isadora Rabinowitz.

    For the respondent, Edwards, Smith & Dawson.

   Delaney, C. P. J.

On September 21st, 1932, the petitioner-appellee, a police officer of the borough of Totowa, filed a formal petition for compensation for an alleged one hundred per cent, permanent disability resulting, so he claimed, from a violent assault and battery upon him on November 14th, 1931, while in the performance of his duties. Respondent’s answer, filed October 10th, 1932, denied, among other things, that petitioner had sustained any injury which arose out of and in the course of his employment. On January 4th, 1933, after hearings on December 9th and 23d, 1932, a consent order was entered, by way of mutual compromise and settlement, in favor of petitioner for fifty per cent, of permanent total disability (two hundred and fifty weeks at $20 a week), besides allowances to doctors and counsel. This disposition of the matter, then supposed and intended by the parties to be final, was reached without the offering of any evidence touching the alleged assault and battery.

On October 30th, 1936, when the terms of the consent order of January 4th, 1933, had been carried out, a petition was filed fox increased disability under section 21-F of the Workmen’s Compensation, act, but soon withdrawn (it being deemed a mistaken course). In the stead of it, petitioner applied, on notice to respondent, to set aside the order of January 4th, 1933, on the ground that the order represented only an agreed settlement between the parties, adopted by the bureau, and was not a final adjudication upon the merits. Over the objection of the respondent, the cause was reopened; and on March 6th, 1938, after protracted hearings upon the merits, a new and enlarged award was ordered in favor of the petitioner, crediting respondent with the sums paid under the settlement of January 4th, 1933. From the enlarged award respondent appeals.

Among numerous questions, the primary one is, did petitioner sustain on November 14th, 1931, an injury arising out of and in the course of his employment?

Difficulties are encountered here. In the first place, there is a variance, wide enough to arrest attention, between the averments of the original petition of September 21st, 1932, and the proofs on behalf of petitioner (as received during the hearings on the merits about five years later). The original petition alleged, in substance, that the petitioner was called into a place (admittedly a “speakeasy” of prohibition times) to quell a fight and avert a robbery and holdup, and was hurt in that endeavor; but the proofs ran to the effect that he was set upon by one or both of two intoxicated patrons, the same referred' to in the petition, outside of the speakeasy, while trying to prevent their driving away in an automobile belonging to one of them. The abandoned petition of October 30th, 1936, drawn by his present counsel, was framed upon the latter, not the former, theory.

But the variance settles nothing.

The circumstances, the details, the severity of the assault and battery of November 14th, 1931, are sharply disputed; but of its actual occurrence there is no question; on all sides it is admitted. The counsel who drew the original petition got his facts nearly a year after the occurrence, not from the petitioner, but at second-hand from petitioner’s wife. During the interval the petitioner had undergone a major and critical operation — the removal of a tumor from his brain. The petition bears, not his accustomed signature, but only his mark. On the hearings in 1937, his speech was so halting and infirm that the deputy commissioner, before whom he testified, observed that he would take judicial notice oí it; and the evidence — -the uncontradicted evidence — is that in September, 1932, his wife talked with his then counsel because he was vocally unable to do so. As to a threatened robbery, there is this trace in the record: one of the intoxicated customers accused the bartender in sole charge of the place with shortchanging him, and remarked, in effect, that he was at liberty to help himself from the cash register; the petitioner, who, as some say, had then lately entered the place in civilian dress, a stranger to the two intoxicated customers, went out at this point, and going to his nearby home got there his police badge and nightstick, and there saw his wife; he returned, using his car, to the speakeasy, and shortly afterwards reappeared in his home, holding his fractured set of false teeth in his hand, and with external signs of bodily injuries.

In the solution of the difficulty arising from the variance between pleading and .proof as of other difficulties in the cause, common sense and common knowledge and common experience cannot be shut out. Practitioners, who have drawn pleadings on facts obtained by them second-hand, know the hazard of relying upon the informant speaking in good faith but endeavoring to report what has come only indirectly to his knowledge.

In these explanatory circumstances I do not find the sig-' nificance in the variance which counsel for respondent perceive in it.

But confronting difficulties remain. There are contradictions and inconsistencies in the testimony of petitioner’s witnesses on the particulars of the assault and battery of November 14th, 1931. These might all be occasioned either by witnesses coming to his support with knowingly false stories imperfectly harmonized, or by witnesses honestly struggling, after the lapse of five or six years, to recall details never of great personal consequence to themselves.

Not all the differences in the versions of petitioner’s witnesses are troublesome; some are readily reconciled or dismissed by a shift of the scene and the movement of time. Supposing, as counsel for respondent do, that their stories are fabricated. I would have expected a closer agreement in their testimony, at least, upon direct examination, at which early point most of the marked discrepancies appear. After careful study of the record, I have concluded that these witnesses, with fading and variant memories as to certain details, recall and state the essence of the matter. They testified, to what had occurred, not days or weeks or months, hut years, before they were sworn; and the element of lapsed time must be taken into account.

On a pivotal point, I find that respondent’s witnesses, the alleged assailants of petitioner, are discredited. They say (and about this there is no disagreement or doubt) that they were in the speakeasy from two o’clock in the afternoon of Saturday, November 14th, 1931, until seven or eight in the evening, playing bagatelle — their week’s work ended — and spending their money in lunching, in the .drinking of ale and apple whiskey, in the treating of other customers of the house. They further say that petitioner, whom they had never met and whose official character they did not guess, was in the same place, in civilian clothes, between the same hours and for the like length of time. It is undisputed that petitioner went off duty at noon on that day, and went back on duty at four o’clock in the morning of the following day. He says, and his wife corroborates him, that he spent the afternoon in his home, and first left that at about seven o’clock in the evening. He says also, and the bartender, his brother-in-law, corroborates him, that he entered the speakeasy for the first time on that day after seven in the evening.

Whether petitioner spent that Saturday afternoon and early evening in the speakeasy, drinking apple whiskey to the point of stumbling intoxication, as the alleged assailants say, or first entered there, in a state of perfect sobriety, after seven o’clock in the evening, as the petitioner and the bartender say, is a matter of capital importance. If the alleged assailants are right, their version of their physical encounter with the petitioner is powerfully strengthened; if they are wrong, they are either willfully wrong, or were themselves so far inebriated on the occasion that their present recollection of its occurrences is quite valueless.

On this question the petitioner and the bartender are corroborated by a third witness — a milk dealer and member of the township committee of a neighboring municipality, who, so far as the proofs reveal or suggest, is without interest in the controversy. His acquaintance with petitioner seems to have been very casual and slight. His unshaken and, so far as may be perceived, unbiased testimony throws the weight of the proof on the side of the petitioner. The alleged assailants say that two of their friends, whom they name, were in the speakeasy for a while in the early afternoon, when petitioner, as they say, was there. Kespondent called neither friend, and suggests in its brief that neither could have recalled what stranger, if any, was also there; and this may be so.

Up to the time of the fight, petitioner’s alleged assailants were frequent patrons of the place. The evidence is that they did hot go there again until long after the occurrence, and when at length they returned, the proprietor, although he and thejr were old acquaintances — all of them having formerly worked for a common employer — immediately put them out. These facts were uncontroverted, and if they have any significance, the significance was not explained away.

Finally it is argued that when an officer is hurt in the line of duty, the news of it ordinarily sweeps through the department, and the fact seems to be that two, including the chief, of the four members of respondent’s police force, first learned of petitioner’s misadventure many months later. I suppose, however, that if scandal touches a policeman — his involvement, for example, in a private brawl which his own drunken misbehavior has invited — some rumor of it usually reaches all the members of the force on wings quite as swift, and I find nothing helpful in the argument.

After painstaking consideration, I conclude that it has been established that the- assault and battery upon petitioner resulted, not from an unwarranted intrusion, but in an effort to do his duty.

The next question is: Did respondent, petitioner’s employer, receive timely notice of his injury?

In November, 1931, its police department consisted of two patrolmen (of whom petitioner was one) and a chief and a captain. The chief testified that his earliest notice of the incident came in July, 1932, when petitioner complained of illness (which the chief says was then plainly visible) and applied for a leave of absence. It is claimed on behalf of the petitioner that the captain of police was notified on the evening of the accident. If this is true, it seems to suffice, the chief having testified, and nothing to the contrary appearing, that the captain was petitioner’s immediate superior. Granowitz v. Hay Foundry and Iron Works, 9 N. J. Mis. R. 1165; 157 Atl. Rep. 130; affirmed, 109 N. J. L. 394; 162 Atl. Rep. 582.

There is direct evidence of such notice. Respondent procured the attendance of the captain in the Compensation Bureau in December, 1932, during the hearings terminating in the settlement of January 4th, 1933; but he was not then sworn, and has since died. Petitioner’s witnesses on the point of the notice were his wife and her brother, the bartender (the latter having taken petitioner home after his injury). There appears to be some variance in their respective testimony. Petitioner’s wife said that the captain came to his home in response to a call by telephone; the bartender says that he went out for him, but does not say or intimate that the captain was not brought, by one means or another, to petitioner’s home. Both agree that he counseled that the matter should not be pursued, and if he reasoned about it as they report, it is understandable — the episode having resulted from the carrying on of a then outlawed traffic, out of which the policeman petitioner’s brother-in-law got his living. In this day speakeasies existed only by the grace and tolerance of the communities, and when some untoward incident brought them to the official notice of the authorities, there was public stir and criticism and reproach; and the reproach always centered upon the police.

Respondent argues that there is a presumption that the captain, if notified, would have performed his duty, and found and arrested petitioner’s assailants. But the presumption, like most others, is rebuttable. It was not supposed on the night of November 14th, 1931, that petitioner’s injuries were serious; the grave consequences which are now claimed to have developed from them were not then foreseen; for one reason or another not every known infraction of the criminal law is followed up; and the reported story of the captain’s attitude and counsel cannot be rejected either as incredible or improbable, all the admitted or proven circumstances considered.

When the petitioner’s failing health led to his application for a leave of absence in July, 1932, it was from the captain that the chief of police got his first knowledge that the petitioner had been hurt by intoxicated assailants; and this is the testimony of one of respondent’s own witnesses' — the chief himself. Someone at some time, it is manifest, had informed the captain; the bartender and the petitioner’s wife say that they were his informants, and that they imparted the information on the very night of petitioner’s injury; and in the whole range of the proofs there is nothing to show that he got his information at any other time or from any other quarter.

To what the captain would have testified in the Compensation Bureau in December, 1932, 1 do not know, but respondent then knew, and, knowing, consented to paying petitioner the sum of $5,000, besides fees of his physicians and counsel, and now, after the death of the captain, when his evidence has become unavailable, asks me to substitute unsupported suspicion and random conjecture for affirmative proof.

I find that respondent received due notice of its employe’s injury.

There is sufficient proof also that petitioner’s injuries aggravated a pre-existing condition and contributed to his disability.

The right of the Compensation Bureau is clear to open in 1936 the earlier voluntary settlement between the parties,' approved by it without a final adjudication on the merits. Strengs Piece Dye Works, Inc., v. Galasso, 118 N. J. L. 257; 191 Atl. Rep. 874; P. Bronstein & Co. v. Hoffman, 117 Id. 500; 189 Atl. Rep. 121. The cases of King v. Western Electric Co., 122 N. J. L. 442; 5 Atl. Rep. (2d) 490; Franzoi v. Jacob Rabinott, Inc., 119 N. J. L. 184; 195 Atl. Rep. 305, and Breen Iron Works v. Richardson, 115 Id. 305; 180 Atl. Rep. 192, cited in respondent’s brief, are not to the contrary.

The final question is: What is the extent of the petitioner’s permanent disability ?

On the earlier hearings (1932-1933) three of the four doctors who then testified, found him to be permanently and totally disabled. What the fourth, Dr. Davidoff, the surgeon who removed the tumor, said of him led to the same conclusion.

When the case was reopened (1936-1938), the three physicians who were called by respondent, agreed that the permanent disability is only forty per cent, of total, but in 1932, two of them had considered the disability as permanent and complete.

Of petitioner’s four experts, one pronounces him “as an industrial unit,” to be totally and permanently disabled. Dr. Cremins, who had treated petitioner in March, 1932, and from that time until his operation, and for several years afterwards, and who had observed him much longer than all the other physicians together, was asked by petitioner’s counsel a question of great weight and moment': , “Doctor, in your opinion, would you say that this man was industrially unfit to perform the ordinary and useful pursuits of life?” Objection was interposed, not to the form of the question, but on other grounds; and in making an effort, by asking supplemental questions, to meet the objection, the mind of counsel seems to have been diverted by the interruptions— with instances of which the record is replete — and the question went unanswered.

It was proved that, except for an occasional and ineffectual endeavor to use a rake in his own dooryard, petitioner, in fact, has done no work since July, 1937; and that he has since always been under the eyes of his wife or his child, or, when the one was at work and the other in school, in the care of his mother. The evidence is that at irregular intervals since the operation of 1932, petitioner has suffered from epileptic seizures; that at times they have been frequent, occurring weekly or every two weeks; that they once disappeared for six months together, and then suddenly recurring, appeared with their former frequency; and that their visitation is intermittent, with no fixity of timé periods.

Testifying in September, 1937, petitioner’s wife said that the last seizure at that time had occurred in the preceding May. All of respondent’s witnesses assumed in their testimony in December that petitioner had suffered no convulsions since May, and condition their estimate of his disability on that assumption. They all assumed more — that the epileptic spells were progressively decreasing, and would ultimately disappear.

What was- petitioner’s general physical condition at the closing of the proofs in December, 1937 ? At that time — five and a half years after the removal of the tumor from his brain — he still had a partially paralyzed face, limited motion in his right shoulder, numbness in his right hand (both front and back), tremulous fingers, a dragging right leg, a “residual” paralysis of the right side, a tremulous tongue diverting to the right, a hesitant speech, understandable only with an effort on his part and painstaking attentiveness on the part of his listeners, and at times (as appears in his own recorded testimony in the case) a strange structure of sentence.

There has been some improvement in him since the three or four month period immediately after his operation. His right arm then hung limp, now there is motion there, although, as all the doctors find, “limited and restricted;”' the paralysis on the whole of his right side — the body and the upper and lower limb — seems somewhat less severe now than then; with mutual effort, his speech is intelligible now.

But he cannot use a pen; in September, 1937, he was still unable to write.

If, with epileptic convulsions appearing at times and on occasions which no one can foresee, he could obtain employment and keep it, at what can he work F Dr. Finke, who said that “he can probably do something,” found himself at a loss to say what it is. The three doctors, who ignoring in their computations his epileptic seizures, estimated his permanent disability at forty per cent., offered no suggestion.

Economically and industrially considered, he is of as little utility now as in 1932.

Kespondent’s doctors expected some further improvement. Their optimism is valueless unless rooted in the proofs. I have searched the record for support of it, and am obliged to conclude that the prophecy of future betterment rests on nothing but sheer conjecture and bare surmise, and to agree with the deputy commissioner, who observed the petitioner, both on the hearings of 1932-1933 and of 1936-1938, that within the meaning of the Workmen’s Compensation act, petitioner’s disability is permanent and total.