Calicchio v. Jersey City Stock Yards Co.

• Citation: 125 N.J.L. 112,14 A.2d 465
• Decision Date: 11 January 1940
• Docket Number: No. 208.,208.
• Parties: CALICCHIO v. JERSEY CITY STOCK YARDS CO.
• Court: United States State Supreme Court (New Jersey)

14 A.2d 465

125 N.J.L. 112

CALICCHIO

v. JERSEY CITY STOCK YARDS CO.

No. 208.

Supreme Court of New Jersey.

Jan. 11, 1940.

Proceeding under the Workmen's Compensation Law by Ermina Calicchio, petitioner, for the death of her husband, opposed by the Jersey City Stock Yards Company employer. Compensation was awarded by the Workmen's Compensation Bureau, 17 N.J.Misc. 16, 3 A.2d 438, and the judgment of the bureau was affirmed by the court of common pleas. On rule to show cause why certiorari should not be allowed, and on certiorari.

Writ allowed and, pursuant to stipulation of counsel, cause determined as if it were before the Supreme Court on the return of the writ, and certiorari dismissed.

Argued May term, 1940, before BROGAN, C. J., and PARKER and PERSKIE, JJ.

John L. Ridley, of Jersey City, for prosecutor.

Milton, McNulty & Augelli, of Jersey City (Joseph Keane, of Jersey City, of counsel), for respondent.

PERSKIE, Justice.

This is a workmen's compensation case. The issues for us to determine are whether an accident suffered by decedent, Emilio Calicchio, husband of respondent, on February 22, 1937, arose out of and in the course of his employment and whether that accident caused his death.

We learn from the record that decedent worked for some 14 years in the Jersey City Stockyards where he acted as janitor, performed general laboring work, and tended and fed live stock. On September 11, 1935 decedent was gored by a wild bull and received compensation for injuries so sustained for a period of two weeks and two days. Thereafter, on February 22, 1937 while at work opening a gate, decedent ran a rusty nail into his hand for which he first received treatment in the form of tetanus antitoxin injections. There was evidence before the Bureau to the effect that decedent's hand was bandaged for about a month, and that within 15 or 20 days after the bandages were removed watery sores, known as blebs, appeared on his back. These sores later spread to his chest and arms and even to the inside of his mouth. As time progressed his condition grew steadily worse. On November 29, 1937 he was removed to the Jersey City Medical Center where on January 17, 1938 he died, admittedly as a result of a rare skin disease known as "pemphigus."

Decedent's widow filed a petition for compensation alleging that she, her 24 year old son and her 25 year old daughter were dependents and that the accident happened on or about "September 11, 1935 and November 25, 1937" when decedent was gored by a wild bull. Subsequently an amended petition was filed alleging that the accident occurred on "September 11, 1935, and November 25, 1937, and on or about February 22, 1937." In describing the nature of the accident and how it happened the amended petition for compensation averred that "the decedent was stampeded and gored by a bull, and was later injured, while at work, when a rusty nail punctured his left hand."

At the hearing before the Bureau counsel stipulated the amount of decedent's wages and agreed that the widow alone should be considered as a dependent. After hearing the evidence, the referee in the Bureau entered a determination of facts and rule for judgment wherein it was stated "that the wound sustained by decedent on February 22, 1937 could be the proximate cause of the resulting pemphigus." (Italics supplied.) Compensation was awarded for 300 weeks at $10 a week.

An appeal was taken to the Hudson County Court of Common Pleas where on February 8, 1940 a judgment was entered affirming the judgment of the Bureau. The judgment was based not upon the premise that the wound sustained by decedent on February 22, 1937 could be the proximate cause of the resulting pemphigus but rather it was based upon the premise that the proofs afford a sufficient basis for the rational inference that the wound sustained on February 22, 1937 caused the death.

Prosecutor then obtained a rule to show cause why certiorari should not issue to review the judgment of the Pleas and counsel stipulated that if the writ be granted, the cause be disposed of as though it were before us on the return thereto rather than on application therefor. Since we are satisfied of the existence of a fairly debatable question as to whether the accident on February 22, 1937 caused the disease which produced death, we treat the cause accordingly.

The applicable law is settled. To prove a compensable accident the petitioner's burden is to show that the employment was one of the contributing causes without which the accident could not have happened and that the accident was one of the contributing causes without which the injury or death would not have resulted. Ciocca v. National Sugar Refining Co. of N. J, 124 N.J.L. 329, 12 A.2d 130. It is not enough to prove that the injury or death "could have been" the result of an accident. Azarowicz v. Metropolitan Beef Co., 118 N.J.L. 89, 90, 191 A. 483. To sustain a recovery the proofs must support the basis for the rational inference that the accident caused the injuries or death. Cf. Nardone v. Public Service &c. Co., 113 N.J.L. 540, 174 A. 745.

In light of the erroneous reason upon which the Bureau based its result the question presents itself whether the Court of Common Pleas should have remitted the cause to the Bureau so that the Bureau might make the specific finding and determination it was required to make under the issues, proofs and law applicable thereto. It unquestionably had the power to do so. Jayson v. Pennsylvania R. R. Co., 101 N.T.L. 159, 163, 127 A. 169; Ruoff v. Blasi, 117 N.J.L. 47, 51, 186 A. 581; Rubeo v. Arthur McMullen Co., 117 N.J.L. 574, 580, 189 A. 662. Our duty, "either by reason of the general language of the certiorari act [N.J.S.A. 2:81-8] or the language of the compensation act "N.J.S.A. 34:15-66], or both ["independently] * * * to review questions of fact as well as of law" (Rubeo v. Arthur McMullen Co. supra, 117 N.J.L. at page 577, 189 A. at page 663 and cases there cited), in nowise lessens or negatives the duty of the lower tribunals to make specific findings and determinations of the facts and law under the issues, proofs and applicable law in each workmen's compensation case. The Court of Common Picas having failed to exercise its powers to remand the cause to the Bureau, shall we exercise our recognized power to do so? Patton v. American Oil Co., 181 A. 651, 13 N.J.Misc. 825, affirmed 116 N.J.L. 382, 185 A. 35. The answer to that question depends upon the particular circumstances of each case and, upon that premise, our answer, in the instant case, is in the negative.

It is well to bear in mind, as was pointed out by Mr. Justice Parker for this court in Sweigard v. Richards, 118 N.J.L. 394, 395, 193 A. 188, and cases there cited, that an appeal under the workmen's compensation act, N.J.S.A. 34:15-66, is decided by the judge of the Common Pleas court "exclusively on the transcript of the record and testimony." The appeal is a proceeding de novo, "providing 'a new mind for the consideration of the testimony adduced.'" It is also well to bear in mind that what the writ brings up for review in the case at bar is, as we have already seen, the "judicial action of the court of common pleas." See second paragraph in Dreyfus v. Lutz Co., 142 A. 433, 6 N.J.Misc. 608, affirmed 106 N.J.L. 566, 146 A. 913. While the record of the Bureau, pursuant to the writ, is properly made a part of the return, its function is to aid in the determination of the challenged propriety of the "judicial action" here under review.

If this were the type of a case in which the Court of Common Pleas affirmed the finding of the Bureau, and nothing more, it might well come within the ban of the cases which hold that under such circumstances the affirmance by the Court of Common Pleas does not cure the failure of the Bureau to make the specific finding and determination that it is required to make. Cf. Patton v. American Oil Co., 181 A. 651, 13 N.J.Misc. 825, at page 826, and cases there cited. But this is not such a case. Here, the judge...