Engelmann v. Dispatch.
| Decision Date | 23 July 1947 |
| Citation | 54 A.2d 184 |
| Parties | ENGELMANN v. HUDSON DISPATCH. |
| Court | New Jersey Court of Common Pleas |
OPINION TEXT STARTS HERE
Appeal from Workmen's Compensation Bureau.
Proceeding under the Workmen's Compensation Act of Charles J. Engelmann, employee, opposed by Hudson Dispatch, a corporation, employer. From an order of the Workmen's Compensation Bureau, the employee appeals.
Order in accordance with opinion.
Otis & Kilkenny, of West New York, for petitioner-appellant.
Kalisch & Kalisch, of Newark, for respondent-appellee.
Petitioner was employed as a linotype machinist in respondent's printing plant. The accident, which occurred December 21, 1945, is described in the claim petition as follows: The resulting injury is alleged to be the rupture of a peptic ulcer, upon which an operation was performed a few hours following the accident, confining petitioner to a hospital for about four and one-half weeks. He returned to his work on April 5, 1946. Respondent denies accidental injury as alleged and also denies any resultant disability.
The finding in the Bureau was that petitioner failed to prove his claim by a preponderance of the evidence, and the Deputy Commissioner recites as additional support of the conclusion reached the opportunity he had to observe the several witnesses. Respondent makes the latter feature of the proceeding below a special point of argument here. We do not overlook the application of the principle in general, but in a procedure of trial de novo on the record, that is without sight or sound of the witnesses, undiscriminating adherence to it would constitute the first trier also the final judge.
There are definite factors of proof in this record that must be analyzed and appraised. What we regard as the body of established fact from which the occurrence of an accidental injury may be deduced as a reasonable probability is, together with our passing comment thereon, as follows: Petitioner had been in respondent's employ for nineteen years, doing the same kind of work. The task that engaged him at the time of the alleged mishap was one that he performed ordinarily ten or twenty times a night. Notwithstanding a long illness from intestinal ulcers the record reveals no prior loss of time by reason thereof. His hours of employment began at 6:15 P.M. and on the evening in question he had carried on his duties without apparent difficulty of any kind until the accident in question, which occurred about 9:30 P.M. He was then engaged in removing a magazine weighing about 78 pounds from a linotype machine to a rack, carrying or swinging it the intervening distance of 5 to 10 feet. In the immediate juncture of that operation he was heard to utter a profane ejaculation of anguish, at the same time exhibiting in the expression of his face unmistakeable evidence of extreme pain. Upon the instant and in response to an inquiry by one who had come to his help petitioner said the magazine had slipped. Respondent complains of the insufficiency of this declaration as evidence of the happening, on the ground that it includes nothing about a striking in the stomach, but it is the brevity of the utterance that gives assurance of its spontaneity, an essential criterion of res gestae. Petitioner's testimony in this connection is ‘I felt the magazine slip * * * and pulled it toward my stomach, and the part that extends about a half inch to an inch on each side where that hook catches this magazine, that is what hit me in the stomach;’ and the Deputy Commissioner notes on the record that petitioner ‘makes a sudden gesture of coming down and bends over and rapidly grabs with his hand towards his stomach.’ We see no divergence between the contemporaneous utterance and this testimony; the only thing added by way of amplification is the telling of what it was that the slipping caused to happen and how. The failure to tell these details in the immediate juncture of the event should be clearly understandable on plainly natural grounds. A co-worker came to petitioner's assistance to the extent at least of placing the magazine on, or of shoving it back into, the rack. He says ‘After I pushed him out of the way I took over.’ Petitioner testifies that when he was struck ‘I felt that terrific pain * * * I sat down and doubled up.’ This pain was unlike anything he had previously felt in what may be called the normal course of his illness. The accident occurred, as stated, about 9:30 P.M., and five minutes thereafter petitioner reported it, he says, to his foreman and asked permission to go home, which was not then given. Throughout the remainder of the night petitioner continued to be disabled, except for a minor repair job he was asked to do and which he made special effort to perform. At 10:40 P.M. he vomited and saw evidences of blood. This also he reported to the foreman and again asked for permission to leave, which was again denied, at least in part for the reason soon to be noted. These reportings by petitioner the foreman admits, save that he denies there was mention of an ‘accident’ in the first report, and as to the mention of blood in the report of the vomiting, he says he may have forgotten that detail though he does not think so. The foreman does, however, describe the petitioner's appearance on the occasions when the latter spoke to him as ‘terrible;’ and he feared petitioner would collapse in the street if permitted to leave for home. From the foreman's testimony that prior to petitioner's first report the latter had been doing his work in the usual way we infer that the foreman, while thus observing petitioner, had not noticed any arresting aspect of illness, and we find nothing to explain the suddenness of its startling appearance apart from the...
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