Marotta v. Fabi

• Decision Date: 11 September 1935
• Docket Number: No. 216.,216.
• Citation: 180 A. 545
• Parties: MAROTTA v. FABI.
• Court: New Jersey Supreme Court

180 A. 545

MAROTTA

v. FABI.

No. 216.

Supreme Court of New Jersey.

Sept. 11, 1935.

Proceeding under the Workmen's Compensation Act by Anthonino Marotta, employee, for injuries, opposed by Joseph Fabi, employer. From a judgment of the Court of Common Pleas reversing the judgment of the bureau, which had dismissed employee's petition, and awarding compensation, the employer brings certiorari.

Judgment of the Court of Common Pleas affirmed.

Argued May term, 1935, before PARKER, CASE, and BODINE, JJ.

Samuel Levinson, of Atlantic City, for prosecutor.

Louis M. Mallin, of Atlantic City, for petitioner.

PER CURIAM.

This is a workmen's compensation case. The deputy commissioner dismissed the petition. On appeal, the Atlantic common pleas reversed, and awarded compensation. The employer sued out the present writ.

Apart from technical questions of costs and counsel fee, the dispute is solely on weight and sufficiency of evidence as to the occurrence of an accident on May 9, 1934. The other elements of recovery are not challenged. The history of the case is that petitioner worked for defendant, a contractor, as a concrete finisher, and in December, 1933, sustained a more or less severe sprain of the right hand and wrist, which caused him to stop work and undergo treatment by the employer's physician. For this he received compensation. Ultimately he returned to work, and claimed to have sprained the same hand and wrist a second time on May 9 because of some unusual effort. He was again examined by the same physician, and without formal petition filed, there appears to have been an informal hearing of some kind on May 31, 1934, before Referee Monroe, who reported in writing to the deputy commissioner that he had "dismissed the claim due to the fact that there did not seem to be an accident involved." What evidence there was before the referee is not shown in the printed book. If petitioner made any statements before the referee that were inconsistent with his testimony before the commissioner, there is no evidence of such statements. On cross-examination petitioner was asked what Monroe had said to him, and respondent's counsel, not getting the answer that he expected, announced his intention of producing Mr. Monroe, but that was never done. It does not seem to be claimed that the "sprain" of May 9 claimed by petitioner was not an accident. A somewhat similar situation was presented to us in the case of Van Meter v. Morehouse, 179 A. 678, 13 N. J. Misc....