Lipscombe v. Loizeaux Lumber Co., A--116
| Citation | 12 N.J.Super. 276,79 A.2d 483 |
| Decision Date | 20 March 1951 |
| Docket Number | No. A--116,A--116 |
| Parties | LIPSCOMBE v. LOIZEAUX LUMBER CO. |
| Court | New Jersey Superior Court — Appellate Division |
Thomas J. Brett, Newark, argued the cause for the appellant (O'Brien, Brett & O'Brien, Newark, attorneys).
Mario Turtur, Elizabeth, argued the cause for the respondent and cross-appellant.
Before Judges McGEEHAN, JAYNE, and WM. J. BRENNAN, Jr.
The opinion of the court was delivered by
JAYNE, J.A.D.
In consequence of the present appeal and cross-appeal we undertake a studious consideration of the judgment of the Union County Court entered on October 6, 1950, by which the petitioner, Garnett B. Lipscombe, was granted an award of workmen's compensation.
On June 25, 1948, the Workmen's Compensation Bureau of the Department of Labor received the claim petition in which the petitioner alleged that on November 5, 1947, he sustained an accident arising out of and in the course of his employment in the mill of J. D. Loizeaux Lumber Company at Plainfield in which he incurred a bodily injury necessitating the amputation of his right leg. On January 15, 1949, he presented an amended claim petition asserting that the injuries suffered in the accident had also required the amputation of his left leg. Chronologically the former amputation occurred on May 28, 1948; the latter on December 28, 1948.
The transcript of the proceedings before the deputy director occupies 489 pages. On March 14, 1950, the deputy director resolved that the petition should be dismissed and judgment was accordingly entered in favor of the respondent. We observe that at the outset of the hearing counsel for the respondent admitted the alleged employment and the occurrence of the accident on or about November 5, 1947, in the course of the employment.
On appeal the Union County Court manifestly after an exhaustive examination of the evidence determined that compensation should be allowed for the loss of the left leg and that the cause should be remanded to the Bureau to fix the compensation, fees, and allowances. Judgment was in due course entered in the County Court in accordance with the decision. Both parties criticize the judgment, the respondent declaring that the dismissal of the petition by the Bureau should have been affirmed, and the petitioner by his cross-appeal contending that the loss of both legs resulted from the injuries sustained by the petitioner in the accident.
Obviously the field of controversy embraces primarily the nature and character of the accident, the quality of the injuries actually sustained by the petitioner, and the causative relationship, if any, between the injury or injuries and the loss of one or both of the petitioner's lower limbs.
Elaborate recitations of the divergent, conflicting, and contradictory evidence appear in the deputy director's determination of facts and in the opinion of the county judge. A recomposition here will not be serviceable to the litigants or their counsel.
Our independent consideration of all of the evidence discloses reasonable justification for many of the findings in which the deputy director and the county judge concurred, such as the inadequacy of preponderant evidence that the great toe of the right foot suffered any injury in the accident, the counterpoise of the evidence relating to the alleged fracture, the absence of complaint and of any objective indication of trauma in that area at the time of the accident and during the period of treatment by Dr. Doggett.
In the existing state of the evidence the two conclusions that the petitioner failed to carry the burden of proving that the accident was a precipitating cause of the loss of the right leg do not appear to be mistaken.
The complicating factual element of the present case is the logically permissive deduction that the blood circulation to the petitioner's feet was found immediately following the accident to be noticeably impeded by arteriosclerosis. Symptoms of such condition had been discovered as early as March 1941, thus supplying some reason to believe that there was a circulatory disease preexisting the accident. Vide, however, Marshall v. C. F. Mueller Co., 135 N.J.L. 75, 50 A.2d 158 (S...
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Jensen v. Wilhelms Const. Co.
...828 (1949); McGowan v. Peter Doelger Brewing Co., 10 N.J.Super. 276, 282, 77 A.2d 46 (App.Div.1950); Lipscombe v. Loizeaux Lumber Co., 12 N.J.Super. 276, 280, 79 A.2d 483 (App.Div.1951). 'While this court will not exercise its discretionary power under Rule 3:81--13 (cf. Rules 1:2--20 and 4......
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Gaeta v. Scott Paper Co.
...reverse unless satisfied from our examination of the record that the interests of justice so require. Lipscombe v. Loizeaux Lumber Co., 12 N.J.Super. 276, 79 A.2d 483 (App.Div.1951). It has long been recognized that the trial judge has the distinct advantage of the personal observation of t......