Black v. Mahoney Troast Const. Co.

• Decision Date: 10 February 1961
• Docket Number: No. A--831,A--831
• Citation: 65 N.J.Super. 397,168 A.2d 62
• Parties: Ellen BLACK, Petitioner-Respondent, v. MAHONEY TROAST CONSTRUCTION CO., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 397

65 N.J.Super. 397

168 A.2d 62

Ellen BLACK, Petitioner-Respondent, v. MAHONEY TROAST CONSTRUCTION CO., Respondent-Appellant.

No. A--831.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 19, 1960.

Decided Feb. 10, 1961.

Isidor Kalisch, Newark, for respondent-appellant.

Seymour B. Jacobs, Newark, for petitioner-respondent (David Roskein, Newark, attorney; Jacob L. Balk, Newark, of counsel).

Before Judges GOLDMANN, FOLEY and MINTZ.

The opinion of the court was delivered by

FOLEY, J.A.D.

The Workmen's Compensation Division denied petitioner, widow of an employee of respondent, recovery of death benefits provided by the Workmen's Compensation Act. R.S. 34:15--7, N.J.S.A. The County Court reversed, awarded judgment to the petitioner, and respondent appeals.

The sole question presented is whether the death was causally related to the employment. The scope of our review, of course, requires that we weigh the evidence to determine whether a compensable accident was proved, paying due respect to the views expressed on both facts and law by the Division and the County Court. Russo v. United States Trucking Corp., 26 N.J. 430, 435, 140 A.2d 206 (1958).

On July 16, 1958 shortly after 5:00 p.m. decedent, James Black, age 57, regularly employed by respondent during the hours of 4:00 p.m. to midnight as a guard or watchman was found lying on the floor of a store premises which was under construction by respondent. He was taken by ambulance to the Hackensack Memorial Hospital where he died on July 19, 1958. Concededly decedent had been in poor health for many years. While in service during World War II he sustained a double hernia. Subsequent efforts to repair it were unsuccessful and, as a result, his ordinary physical efforts were severely handicapped. He also suffered from chronic bronchitis of long standing which caused him to cough incessantly. About two years before his death he became afflicted with headaches of more or less constant recurrence. These increased in intensity during the last two weeks of his life. For 'five or seven' years he had complained to his wife of chest pains. These also worsened toward the end.

On July 16, 1958 he left for work at 3:00 p.m. as usual. It was a hot day. The temperature was then 87 degress and the relative humidity 60 per cent. As was his custom, he drove to a gasoline station near the construction project which he guarded, arriving at about 3:30 p.m. According to witnesses he then appeared to be 'his usual self.' After a brief conversation with employees at the station, he went to a trailer which served as a company office, and there awaited the commencement of his work day.

A soda dispensing machine was maintained in the gasoline station which was patronized by mechanics working on the construction project. It was customary for them to take the soda to their work and to leave empty soda bottles in various parts of the building. Evidently it was part of decedent's work routine to gather these bottles in 'groups' in the course of his rounds. Subsequently they would be picked up by William Westervelt, the owner or manager of the gasoline station.

On the day in question Westervelt went to the building at about 5:30 p.m. to gather the empty bottles. Upon his arrival he found decedent lying on the floor unconscious. The groups of bottles had not been assembled. Westervelt returned immediately to the station, told a friend, Bernard Kauffmann, of decedent's plight and telephoned for an ambulance, and for the police. Kauffmann, meanwhile, ran to the building and attempted to revive decedent with a wet towel. He appeared to be unconscious but when Kauffmann spoke to him 'he opened up his eyes and he said he fell' and that 'he was carrying some bottles and dropped them.' Police Officer Michael D. Bellew arrived on the scene shortly thereafter. He testified that he found decedent conscious and that he conversed with him but could not recall what was said. There was some variance in the recollections of Westervelt, Kauffmann and Bellew with reference to the number, and the condition of soda bottles which were on the floor area immediately surrounding decedent. Westervelt testified that he did not then recall that there were any bottles, but that there might have been one or two, since he had previously given a written statement to this effect. Kauffmann recalled that there were a 'couple' of bottles, one broken. Bellew thought that there were two unbroken 'Coke' bottles and some 'portions of broken bottles' in front of Black's feet 'a few feet away.' Although the fact is of no determinative consequence, we think it a reasonable deduction that in accordance with his daily routine decedent was carrying one or two empty soda bottles at the time he was stricken.

The cause of decedent's death was not in essential dispute. Dr. Donald E. Brown, director of laboratories of the Hackensack Hospital, performed an autopsy of decedent's body at the Hackensack Hospital Morgue shortly after death occurred. He testified that the death had resulted from the softening of an area of the brain, brought about by a shutting off of the blood supply thereto, which was the product of an embolus emanating from the chronically diseased heart. The Post mortem examination also disclosed an interstitial hemorrhage in the brain. There was some divergence of opinion between Dr. Saul Lieb, who testified for petitioner, and Dr. Brown and Dr. Yaguda, who testified for respondent, as to whether this had occurred immediately prior to or simultaneously with decedent's collapse on July 16, or whether it was a terminal incident. Dr. Lieb took the position that it was associated with decedent's work efforts; respondent's doctors said that the time of its occurrence was purely conjectural. However this may be, the medical witnesses were in agreement that the primary cause of death was a syndrome of progressive, pre-existing idiopathic diseases which culminated in the cerebrovascular incident described by Dr. Brown. The central issue, therefore, was not the precise nature of the morbid condition which caused decedent to collapse on July 16, and which subsequently resulted in his death, but rather, whether decedent's employment contributed to his demise.

The burden is on a petitioner to establish that he suffered an Accident arising out of and in the course of the employment. In a case of one suffering from a pre-existing disease which is potentially fatal, and death ensues, it is presumed that the death is the result of natural physiological causes, and the onus is on the claimant to prove by a preponderance of probabilities that the employment was a contributing cause of same. Ciuba v. Irvington Varnish and Insulator Co., 27 N.J. 127, 141 A.2d 761 (1958). A preponderance of probabilities may be established by circumstantial evidence which need not have the attribute of certainty, yet must evoke a presumption well founded in reason and logic, as distinguished from guess or conjecture. Ibid. However 'accident' and 'employment' are not synonymous. Ibid. Thus, it is encumbent upon plaintiff to prove, circumstantially or otherwise, an event or happening Beyond the mere employment itself. Lohndorf v. Peper Bros. Paint Co., 134 N.J.L. 156, 46 A.2d 439 (Sup.Ct.1946). See also Ciuba, supra; Jacobs v. Kaplan, 56 N.J.Super. 157, 152 A.2d 145 (App.Div.1959).

Petitioner relied entirely upon the opinion of Dr. Lieb to establish a contributory causal connection between the employment and the death. This opinion was given in response to a hypothetical question which included an assumption that decedent while making his rounds:

'stooped over on several occasions in order to pick up bottles, and that while either in the act of stooping down to pick up a bottle or while straightening out after picking up a bottle or immediately thereafter while carrying the bottles to the depository where Mr. Westervelt could pick them up, something happened to him which caused him to fall to the ground unconscious * * *.'

As we have already noted, we think there was sufficient evidence in the case to justify the inference that at the time decedent fell he was carrying soda bottles, which he had probably picked up from the floor. But the same cannot be said of the factual conclusion that it was reasonably inferable from the proof that the decedent had stooped 'several' times or that he was stricken while so doing or as he was 'straightening out.' The only suggestion that the 'stooping' was directly proved (and even this did not furnish a basis for relating it to decedent's collapse as definitively as the hypothetical question implied) was contained in the history given by decedent's widow to the Hackensack Hospital authorities that the patient while 'bending over to pick an object off the ground' collapsed. Plainly this hearsay statement was not legal evidence of the fact sought to be proved. Person v. Firemen's Insurance Co., 126 N.J.L. 330, 333, 19 A.2d 452 (Sup.Ct.1941), affirmed 127 N.J.L. 229, 21 A.2d 736 (E. & A. 1941). Nor in our judgment was the quoted portion of the hypothesis supported by proven circumstances of sufficient cogency to lead a reasonably cautious mind to the conclusion that the decedent had 'stooped several' times and had collapsed...