Margolies v. Crawford Clothes, A--134

• Citation: 24 N.J.Super. 598,95 A.2d 413
• Decision Date: 16 February 1953
• Docket Number: No. A--134,A--134
• Parties: MARGOLIES v. CRAWFORD CLOTHES. . Heard
• Court: New Jersey Superior Court – Appellate Division

Page 598

24 N.J.Super. 598

95 A.2d 413

MARGOLIES v. CRAWFORD CLOTHES.

No. A--134.

Superior Court of New Jersey, Appellate Division.

Heard Feb. 16, 1953.

Decided Feb. 27, 1953.

Isadore Rabinowitz, Paterson, argued the cause for petitioner-appellant (Edward H. Saltzman, Paterson, attorney).

Thomas J. Brett, Newark, argued the cause for respondent-respondent (O'Brien, Brett & O'Brien, Newark, attorneys).

Before Judges EASTWOOD, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.C.C. (temporarily assigned).

Appellant suffered a heart attack and sought workmen's compensation therefor. There was no dispute in the County Court that the attack arose out of and during the course of his employment with respondent. The crucial issue presented was whether it was produced by 'accident' within the contemplation of the Workmen's Compensation Act. In the Department of Labor the deputy director found that such accident had been established; the County Court found to the contrary on his independent study of the record.

The present test of an accident in this type case is whether or not the heart attack was caused by an unusual or excessive exertion or strain which occurred during the course of, and as an incident of, the employment. Franklin v. U.S. Bronze Powder Works, 6 N.J.Super. 320, 71 A.2d 226 (App.Div.1950), certification denied, 4 N.J. 460, 73 A.2d 294 (1950); Seiken v. Todd Dry Dock, 2 N.J. 469, 67 A.2d 131 (1949); Grassgreen v. Ridgeley Sportswear, 2 N.J.Super. 62, 64 A.2d 616 (App.Div.1949); Lohndorf v. Peper Bros. Paint Co., 135 N.J.L. 352, 52 A.2d 61 (E. & A.1947).

Margolies had been in respondent's employ as a clothing salesman for a number of years. He worked on a salary and commission.

It appears that at irregular intervals the salesmen moved various parts and kinds of the stock about the store. Approximately four times a year seasonal changes made necessary a more substantial shifting of stock, undoubtedly in order to accommodate the public demand for different styles of clothing.

On January 16, 1951 Margolies was directed by his superior to shift several hundred heavy overcoats from their position on racks in the store to racks in a store-room which was 25 to 50 feet away. This meant sorting the coats according to size and model as well as carrying them from one place to the other.

The racks were about six feet high and because Margolies is five feet, five and one-half inches tall it was necessary for him to lift the coats down from and up to a point over his head. According to Margolies the coats weighed around seven to nine pounds each (although the employer's witness said the weight was five pounds).

On previous occasions two salesmen were assigned to do the work. Each would carry three or four or, at most, five overcoats at a time until the task was completed. On this occasion, work began in the neighborhood of 9:40 A.M. and, except possibly for a very short period, Margolies was given no assistance. Never before had he been required to move such a large number of coats alone.

Appellant testified that he was conscious of the fact that commissions were earned only when he was on the floor acting in his capacity as salesman. As the result he undertook to carry seven or eight and sometimes ten coats at one time in order to complete the task as quickly as possible. This meant carrying from 35 to 50 pounds, if respondent's witness' estimate is accepted, or from 49 to 90 pounds, if Margolies' estimate is used. It was necessary to extend his arms further than usual in order to accommodate the additional garments; overcoats were more cumbersome to handle than other merchandise because they were heavier and longer.

His attitude toward the task was:

'The work had to be done. I wanted to get down on the floor. My way of living is my selling, and that work had to be done.'

In any event, he worked steadily, stopping only once or twice to smoke a cigarett. About one o'clock, when perhaps three-fourths of the coats had been transferred, he felt nauseous, weak, and he started to perspire. After resting for five minutes he resumed work. One load was shifted and just as he got the second batch in his arms he experienced severe pain across the upper chest and extending down his arms to...