Marston v. Curtiss Wright Corporation

• Decision Date: 15 December 1948
• Citation: Marston v. Curtiss Wright Corporation, 1 N.J.Super. 107, 62 A.2d 696 (N.J. Super. App. Div. 1948)
• Docket Number: A--35.
• Parties: EDITH E. MARSTON, PETITIONER-RESPONDENT, v. CURTISS WRIGHT CORPORATION, RESPONDENT-APPELLANT
• Court: New Jersey Superior Court — Appellate Division

62 A.2d 696

MARSTON

v.CURTISS WRIGHT CORPORATION.

No. A-35.

Superior Court of New JerseyAppellate Division, Part A.

Dec. 15, 1948.

Syllabus by the Court.

1. The requirement of notice embodied in the Workmen's Compensation Act is not applicable where the employer has actual knowledge of the occurrence of the injury. Here the court found that the employer corporation had actual knowledge of the occurrence of the injury in view of the fact that its foreman had observed all of the known facts pertaining to the occurrence of the injury, signed a statement with respect thereto and notified the first aid unit of the employer and that the local Chief of Police had been called to the employer's plant and had arranged for removal of the decedent's body therefrom by the County Medical Examiner's Office.

2. A petitioner claiming that the decedent employee had fallen while engaged in his work and that his fall had resulted in a fractured skull causing death, need only establish that the claimed conclusion from the facts is a probable or a more probable hypothesis with reference to the possibility of other hypotheses. Here the court sustained an award of compensation where a janitor's body was found in a corridor of his employer's building under circumstances which led to the conclusion that while engaged in his work as janitor he had slipped on a highly polished corridor floor and that his fall resulted in a fractured skull causing his death.

Appeal from Court of Common Pleas, Essex County; Dallas Flanagan, Judge.

Proceeding under the Workmen's Compensation Act by Edith E. Marston, opposed by the Curtiss Wright Corporation. From a judgment awarding compensation, the employer appeals.

Affirmed.

Before JACOBS, Senior Judge, and EASTWOOD and BIGELOW, JJ.

John W. Taylor, of Newark, for appellant.

William P. Braun, of Newark (Henry F. Hoey, Jr., of Newark, of counsel), for appellee.

JACOBS, Senior Judge.

This matter is before the court pursuant to a writ of certiorari issued by the former Supreme Court, 137 N.J.L. 540, 61 A.2d 6, to review a judgment of the Court of Common Pleas reversing the Workmen's Compensation Bureau and awarding compensation to plaintiff, the widow of Edwin Marston.

On March 1, 1945, decedent Edwin Marston was in the employ of appellant, Curtiss Wright Corporation, as a janitor. At about 10:40 p.m. his foreman, Mr. Morris, observed him in the performance of his duties at his employer's plant using a pail and water and washing partitions with a cloth. Approximately 25 minutes thereafter he found him lying on the third floor corridor, his head in a pool of blood and still bleeding, the pail filled partly with water, a small puddle of water near the pail, and drops of water near his feet. Immediately nearby was an open door to the janitors' closet which contained a sink and supplies available for their use. He described the corridor floor as ‘tile linoleum’ and stated that it had been waxed. He called the plant's first aid unit and then left and later in the month signed a statement with respect to the occurrence, which was produced by the Corporation during the hearing before the Workmen's Compensation Bureau.

Shortly thereafter, the Chief of Police of Caldwell, who had received a telephone call from the plant, arrived and observed substantially the same conditions described above. He stated that the floor appeared ‘highly polished’ and ‘as if it had been mopped’. The general foreman of the Corporation testified that the floors in the building ‘are, as a general rule, mopped and then buffed with a buffing machine. The floor had been waxed approximately six months before.’ The Chief of Police further testified that when he arrived the only other person about was a plant guard and that he called the County Medical Examiner's Office which arranged for the removal of the decedent's body. Dr. Beling, Assistant Medical Examiner of Essex County, testified that he performed an autopsy and found that the decedent had died from a fractured skull. The death certificate signed by Dr. Beling described the immediate cause of death as ‘Accidental fall while at work-Fracture of skull-Subdural hemorrhage’.

The Court of Common Pleas, in reversing the Bureau and awarding compensation to plaintiff, found that the decedent, while engaged in the performance of the duties of his employment, fell and sustained a fracture of the skull with subdural hemorrhage and that his death was the result of an accident arising out of and in the course of his employment. The appellant, in seeking to reverse the action of the Pleas, urges, first, that it had no notice or knowledge of the injury within the requirement of R.S. 34:15-17, N.J.S.A. We are satisfied that this point is without merit. The Act provides for notice to the employer ‘unless the employer shall have actual knowledge of the occurrence of the injury.’ As stated in General Cable Corp. v. Levins, Err. & App.1940, 124 N.J.L. 223, 227, 11 A.2d 61, 63, this means ‘in fairness to the employer, that there be brought home to him the occurrence of an injury suffered by an employee.’ That here the occurrence of the injury was amply brought home to the employer Corporation is evident from the attendant circumstances including the foreman's observance of all of the known facts pertaining to the occurrence of the injury and his signed statement with respect...