Lohndorf v. Peper Bros. Paint Co.

• Decision Date: 11 April 1946
• Docket Number: No. 231.,231.
• Parties: LOHNDORF v. PEPER BROS. PAINT CO.
• Court: New Jersey Supreme Court

134 N.J.L. 156

46 A.2d 439

LOHNDORF

v.PEPER BROS. PAINT CO.

No. 231.

Supreme Court of New Jersey.

April 11, 1946.

Proceeding under the Workmen's Compensation Act by Mary Lohndorf, claimant, opposed by Peper Bros. Paint Company, employer. From a judgment of the Court of Common Pleas, 44 A.2d 402, 23 N.J.Misc. 328, reversing a determination and ruling for judgment of the Workmen's Compensation Bureau and awarding compensation, the employer brings certiorari.

Judgment of the Court of Common Pleas reversed resulting in reinstatement and affirmance of determination and rule for judgment of Workmen's Compensation Bureau.

January term, 1946, before PARKER and OLIPHANT, JJ.

Cox & Walburg, of Newark (Arthur F. Mead, of Newark, of counsel), for prosecutor.

Ward & Levinthal, of Paterson (Maurice Levinthal, of Paterson, of counsel), for respondent.

OLIPHANT, Justice.

This is a workman's compensation case, R.S. 34:15-7 et seq., N.J.S.A. The appeal, by certiorari, is from a judgment of the Passaic County Court of Common Pleas, which judgment reversed a determination and rule for judgment of the Workmen's Compensation Bureau and awarded compensation to respondent. It therefore becomes our duty to appraise the evidence and determine the facts. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 6 A.2d 213.

The question presented is whether the respondent has sustained the burden of proving that the coronary occlusion which resulted in decedent's death was the result of an accident arising out of and in the course of his employment.

We find the facts to be as follows: Joseph Lohndorf, a man fifty-nine years of age, died on August 27, 1944, at 3:00 A.M. at his home. He had been employed by prosecutor for one and a half years as manager of its paint store in Paterson and, as such, he worked six days a week from 8:00 A.M. to about 7:00 P.M. He waited on customers and generally took care of the store. It had shelving on the side where merchandise was displayed, the heavier paint cans being on the floor and lower shelves, the lighter ones on the upper shelves, which were reached by using an eight foot ladder. The cans and containers ranged in weight from ten to one hundred pounds and roofing material weighed from fifty-five to sixty-five pounds. Decedent had a part time helper and a truck driver was also employed.

The claim petition sets forth an accident as having happened on August 23, 1944 in the early afternoon. Decedent had a heart attack at that time while standing by a counter, doing nothing and following no unusual exertion. Another attack was experienced by him later that afternoon and again on the following day. On Friday afternoon, August 25th, decedent suffered another attack after moving some cans of paint from a low hand truck to the floor. When these various seizures took place decedent had shortness of breath and pain in his left shoulder. He would exclaim ‘I can't breathe.’ On the following day, Saturday, about 4:00 P.M., he had another attack concerning which there is no evidence of anything unusual occurring or of any particular exertion except that it was a busy day and he had been waiting on customers. He often complained of feeling very tired, and most of the attacks occurred without evidence of prior effect or strain. After the attack on Saturday afternoon he kept on working until closing time about 7:30, when he in company with his helper went to a tavern next door to the store, where Lohndorf took some seltzer water after which he went on a bus to his home. He arrived there after 9:00 o'clock, and was pale and sick looking. He ate a meal after which he had bad pains in his chest and back. He rested on a couch, the pains continuing, and about 3:00 A.M. went to relieve himself at the sink and fell back dead. He had been having heart attacks from as early as July, 1944 and no claim is made that any of these were caused by an employment accident. The attacks prior to the last one were those of coronary insufficiency or angina pectoris while the fatal one was coronary artery occlusion with thrombosis. He had been afflicted with coronary sclerosis. No autopsy was performed.

Three Medical witnesses appeared on behalf of the respondent. Dr. Cohen in response to a hypothetical question containing no facts of unusual occurrences, events or undue exertion except the one of lifting cans of merchandise from the hand truck to the floor on August 25th and using the ladder to wait on customers, said the work he had been doing from August 23rd on contributed to his death, that physical work was contra-indicated. Of course, it should be noted that deceased had been doing similar work for a year and a half. The same hypothetical question was propounded to Dr. Budd, who testified that in his opinion decedent by continuing work instead of resting aggravated his condition and this brought about his eventual death. He further said that many cases of coronary sclerosis died without effort or strain, even...