Bernstein Furniture Co. v. Kelly

• Citation: 177 A. 554
• Decision Date: 18 March 1935
• Docket Number: No. 238.,238.
• Parties: BERNSTEIN FURNITURE CO. v. KELLY.
• Court: United States State Supreme Court (New Jersey)

177 A. 554

BERNSTEIN FURNITURE CO.

v. KELLY.

No. 238.

Supreme Court of New Jersey.

March 18, 1935.

Proceeding under the Workmen's Compensation Act by Isabella Kelly for the death of her common-law husband, Walter Brooks, claimant, opposed by Bernstein Furniture Company, employer. Judgment awarding compensation to claimant, and the employer brings certiorari.

Writ dismissed.

See, also, 172 A. 41, 12 N. J. Misc. 395. Argued October term, 1934, before TRENCHARD, HEHER, and PERSKIE, JJ.

Collins & Corbin, of Jersey City (Edward A. Markley and Charles W. Broadhurst, both of Jersey City, of counsel), for prosecutor.

David Roskein, of. Newark (John A. Laird, of Newark, of counsel), for respondent.

PERSKIE, Justice.

This is a workman's compensation case. The question involved is the usual one: Was there a compensable accident within the intendment of the act? The bureau held that there was not The Essex county court of common pleas (Walter D. Van Riper, Judge) held that there was and reversed the findings of the bureau. Query: Which is right?

The proofs disclosed that the deceased, Walter Brooks, was employed by respondent for about six months prior to his death. For the first five months he worked as a porter; the last month he worked as a helper in his employer's warehouse, moving, lifting, and delivering furniture.

On August 14, 1930, a hot day, decedent and another employee (driver of truck) set out to deliver a three-piece set of furniture, consisting of two arm chairs and a settee. The former weighed between 95 and 125 pounds, and the latter between 225 and 250 pounds. Upon reaching their destination each carried up a chair to the purchaser's apartment— which was on the fourth floor of the apartment house building—and immediately thereafter they both carried up the settee. It was a difficult task. It appears that decedent was breathing heavily, i. e. "breathing pretty strong," and was apparently under a strain: "he was winded." When they reached the top floor he gave "what sounded like a deep sigh." They then proceeded to place the settee in the room as directed by the purchaser. Just as the settee was finally placed, decedent slumped as though he intended to sit on the window sill. He was eased in his fall, as he slid down to the floor. He did not strike his head or body as he fell because of the aid he received. He was carried out on the porch. A doctor was called, but the employee died without saying a word, before the doctor arrived.

The following day an autopsy was performed. It failed to disclose that the death was in any wise caused as a result of an accident or trauma. As a result of the autopsy it was determined, however, that the cause of death was chronic aortitis (a heart condition of long standing) brought on by syphilis. In other words, it was a case of chronic syphilitic aortitis.

The proof for petitioner, who incidentally was decedent's common-law wife (they were separated at the time of his death) and mother of his child, disclosed that decedent's heart condition was such that he could, without any exertion, suddenly drop dead; that such death could occur while he was in bed, sitting in a chair or walking, or doing nothing at all. But petitioner's physician also testified that there was a direct relationship between the work that deceased was doing, the exertion thereof, and his death; the theory thereof being that, even with the diseased condition of the heart and coronary arteries which were furnishing a diminished supply of nourishment thereto, there was, from the supply they did give, a certain reserve power which had to be used up before the heart stopped beating. It was the thought of his doctor that if decedent had not been doing the particular work herein stated he would not have used up this reserve power at that particular time. Whether decedent would have used it up the next day, or the next week, or two weeks later, he would not say. Dr. Berardinelli testified for prosecutor, in substance, that the deceased had a very bad heart of long standing, due to syphilis; and that there was nothing to indicate that the death of decedent was caused as a result of any accident or trauma, and that his condition was "possibly" aggravated by the work that he did do.

The bureau, as already stated, concluded that no accident had been proved. The common pleas court, however, held that the deceased did sustain an accident and that the accident arose out of and in the course of decedent's employment by the respondent, prosecutor herein. That the decedent had a bad or chronic heart condition of long standing is not in dispute. The common pleas court further held that, under the proofs of the instant case, the chronic condition of decedent's heart was aggravated by overwork and unusual exertion; that the lifting and carrying of the...