Azarowicz v. Metro. Beef Co.

• Decision Date: 17 April 1937
• Docket Number: No. 209.,209.
• Citation: 191 A. 483
• Parties: AZAROWICZ v. METROPOLITAN BEEF CO.
• Court: New Jersey Supreme Court

191 A. 483

AZAROWICZ

v. METROPOLITAN BEEF CO.

No. 209.

Supreme Court of New Jersey.

April 17, 1937.

Proceeding under the Workmen's Compensation Act by Cyprian Azarowicz, against the Metropolitan Beef Company. To review a judgment granting an award to petitioner, the Metropolitan Beef Company brings certiorari.

Writ dismissed.

Argued January term, 1937, before BROGAN, C. J., and CASE and PERSKIE, JJ.

Cox & Walburg, of Newark (Arthur F. Mead, of Newark, of counsel), for prosecutor. Herman M. Wilson, of Newark (David Sarbone, of Newark, of counsel), for respondent.

PERSKIE, Justice.

In this workmen's compensation case, the fact that the employee suffered injuries arising out of and in the course of the employment is not challenged. It is the extent of the injuries claimed by employee and thus the percentage of the total disability allowed him that is contested.

The petitioner, 59 years of age, was employed by the prosecutor as a butcher and salesman. As part of his work he helped deliver beef sold; in so doing he was obliged to and did carry beef weighing 100 to 130 pounds to prosecutor's truck in which it was delivered to the customer. He had worked continuously for the prosecutor for about ten months prior to the accident, at the wage of $25 a week, and prior thereto had worked for another beef concern for about three years.

On February 8, 1933, while carrying a loin of beef weighing about 60 pounds from another beef house to the truck, in the course of his employment, he was struck by an automobile. As a result thereof, he claimed that he sustained "a fracture of the left ankle"; "internal injuries" and "nervous shock." In addition thereto he claimed, and this is the real controversy, that he also sustained a heart condition, myocarditis. This claim was made to rest on two grounds: First, that it was the direct result of trauma, of having been struck by the automobile; or second, that the accident set in motion or aggravated the pre-existing heart condition.

On the other hand, prosecutor contended below, as it contends here, that the heart condition could not have been the result of trauma, nor did the accident aggravate the pre-existing condition thereof. Its claim is that while petitioner was in the hospital he developed either a "cold," "grippe," or "influenza," and although he fully recovered from that illness in a few days, nevertheless, that attack "brought about a decompensation of the heart during the period of the attack and subsequently the heart adjusted itself and came back to the chronic condition that always existed."

Each party offered proof in support of its contention. It is elementary that petitioner was obliged to do more than show that the injuries sustained "could have been" the result of the accident. Jacques Wolfe & Co. v. Piplin, 183 A. 187, 14 NJ. Misc. 146. He was obliged to show that the injuries for which he claimed compensation were in fact caused by the accident. That proof, however, may be direct, circumstantial, or presumptive, i. e., based on proper deducible inferences or both. Nardone v. Public Service, etc., Co., 113 N.J.Law, 540, 174 A. 745; Armstrong v. Union County Trust Co., 186 A: 522, 14 NJ. Misc. 648, affirmed 117 N.J.Law, 423, 189 A. 138. Thus it has been repeatedly held that, in the absence of direct proof, the best proof, probability and not certainty is the test as to whether an injury resulted from an accident arising out of and in the court of the employment. Auten v. Johnston, 115 N.J.Law, 71, 178 A. 187; Jackson v. Delaware, Lackawanna & Western Railroad Co., 11 N.J. Law, 487, 170 A. 22; Hercules Powder Co. v. Nieratko, 113 N.J.Law, 195, 173 A. 606, affirmed 114 N.J.Law, 254, 176 A. 198; Belyus v. Wilkinson, Gaddis Co., 115 N.J. Law, 43, 178 A. 181, affirmed 116 N.J.Law, 92, 182 A. 873.

The proper and legal proofs adduced for the petitioner show, among other things, that he was always a hard-working man; that during his ten months of employment by prosecutor he continually did hard work and did not lose one hour of employment; that prior to his employment by prosecutor he had worked for another beef concern for about three years and during that period of employment he lost but one day's work and this because of a cold; that he successfully passed examinations (although the extent thereof is challenged) about every six months, the last one so passed was in June of 1932, required by the local health authorities for a "food handlers" permit which he was required to obtain and no abnormal heart signs were disclosed in any of these examinations; and that neither he nor his wife ever noticed any symptoms indicative of heart or any trouble.

In addition, petitioner offered medical proof. These experts examined him physically. One, a cardiologist of many years' experience, also made a fluroscopic examination, took an X-ray film of his chest and made an electrocardiagram. All of these experts testified, in substance, and there is no objection to the form of the questions propounded to them, that trauma not only could cause but did cause the myocarditis suffered by petitioner,...