McAllister v. Board of Ed., Town of Kearny

• Decision Date: 23 May 1963
• Docket Number: No. A--370,A--370
• Citation: 79 N.J.Super. 249,191 A.2d 212
• Parties: Dolores McALLISTER, Petitioner-Appellee and Appellant and Cross-Respondent, v. BOARD OF EDUCATION, TOWN OF KEARNY, Respondent-Appellant and Respondent and Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 249

79 N.J.Super. 249

191 A.2d 212

Dolores McALLISTER, Petitioner-Appellee and Appellant and Cross-Respondent, v. BOARD OF EDUCATION, TOWN OF KEARNY, Respondent-Appellant and Respondent and Cross-Appellant.

No. A--370.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 24, 1962.

Reargued March 18, 1963.

Decided May 23, 1963.

Henry G. Morgan, Newark, for Bd. of Education at original argument (Schneider, Lustabader & Morgan, Newark, attorneys).

Robert J. C. McCoid, Newark, for Bd. of Education at reargument (Schneider, Lustbader & Morgan, Newark, attorneys).

Aaron Gordon, Jersey City, for Dolores McAllister.

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

In this workmen's compensation case Mrs. McAllister, widow of Charles McAllister and mother of his three dependent children, appeals from that portion of the judgment of the County Court which determined that the amount of compensation for his death was governed by the statute which existed at the time of the accident, and not by the statute, which fixed a higher rate, in force when he died. The Board of Education of the Town of Kearny (Kearny) cross-appeals, claiming that the death was not work-connected. After the first argument in this case, we withheld decision pending the determination of Schiffres v. Kittatinny Lodge, Inc., 39 N.J. 139, 188 A.2d 1 (1963), which appeared to involve substantially similar issues. Upon receipt of the opinion in Schiffres, we called for reargument in the light thereof.

The decedent had been employed by Kearny as head custodian of one of its schools for 24 years when, on October 25, 1952, he fell 10 to 14 feet from a ladder to the floor of the boiler room and was seriously injured. On May 15, 1955 the Division adjudged that he had sustained three fractured ribs, punctured pleura, and contusion, displacement and damage of the heart. The heart damage consisted of right bundle branch block, left ventricle hypertrophy and congestive heart failure. At that time the Division concluded that he was totally and permanently disabled, but it found that 25% Of his disability was due to pre-existing arteriosclerosis and arthritic changes in his elbow. The Division did not say how much of the pre-existing disability was due to each of the two conditions separately, but it did find as a fact that neither condition was aggravated or affected by the accident. The Division consequently awarded him 75% Of total permanent.

Prior to the accident McAllister had worked steadily. After the accident he never worked again. He was treated by his family doctor, Dr. Kook, from the date of the accident until his death. Dr. Kook examined him periodically, the last time being September 18, 1957. McAllister died Octobor 12, 1957. Dr. Kook testified that his diagnosis of severe myocardial damage with right bundle branch block, left ventricular hypertrophy, and congestive heart failure remained constant through his last examination; although he had not taken electrocardiograms after the award of the Division on May 15, 1955, he could tell from the symptomology that the condition was getting worse, and he anticipated the occurrence of McAllister's death at any time.

On October 12, 1957, almost exactly five years after the fall from the ladder, McAllister received a telephone call, about 1 A.M., that Mrs. McAllister was in a tavern with another man. He went to the tavern where he found his wife and the other man; there was a scene; he collapsed in the tavern about 1:45 A.M., and died a few minutes later.

Kearny's brief states its position as follows: the injury sustained as a result of the 1952 fall was essentially healed; the condition of arteriosclerotic heart disease which pre-existed the 1952 fall got progressively worse; the 'traumatic emotional experience,' superimposed upon the arteriosclerosis, killed him; and petitioner is therefore not entitled to recover. Schiffres v. Kittatinny Lodge, Inc., supra. Kearny appears to concede, as it must under Hagerman v. Lewis Lumber Co., 13 N.J. 315, 99 A.2d 513 (1953), that Mrs. McAllister is entitled to an award if the heart injury caused by the 1952 accident had not healed, and the 'traumatic emotional experience,' superimposed upon that injury, caused the death.

The Division and the County Court found that the 1952 heart injury had not healed; that, on the contrary, it had grown progessively worse, and that the 'traumatic emotional experience' was merely the trigger that killed him. We have examined the evidence in the manner required by Russo v. United States Trucking Corp., 26 N.J. 430, 140 A.2d 206 (1958), and have come to the same conclusion. It seems to us that the case falls within Hagerman v. Lewis Lumber Co., supra, and not within Schiffres v. Kittatinny Lodge, supra.

In addition to Dr. Kook, petitioner called Dr. Saul Lieb. He had examined McAllister prior to the 1955 hearing in the Division. On the basis of that examination and a hypothetical question, Dr. Lieb attributed McAllister's death to the 1952 heart injury. He said McAllister's 'condition deteriorated progressively, as evidenced by the observations of Dr. Kook, and his death * * * in my opinion represent(ed) the end result of that cardiovascular deterioration.' In his opinion the underlying arteriosclerosis had little to do with the end result, even granting that (because McAllister was five years older) it probably had advanced somewhat beyond what it was in 1952.

Kearny attacks the validity and the competence of Dr. Lieb's opinion on the ground that the hypothetical question propounded to him failed to include the fact that Exhibit P--4, offered by petitioner to prove the fact of death, gave the cause of death as 'Arteriosclerotic Heart Dis.' There is no substance in this attack.

To begin with, even if Exhibit P--4 were Prima facie evidence that the death was due to arteriosclerosis, it would not be conclusive upon petitioner, or bar her from proving that the death was due to other causes. A fortiori where, as here, there is proof that the death was due to other causes, the cause stated in the death certificate did not have to be included in the hypothetical question posed by petitioner to Dr. Lieb. Peer v. Newark, 71 N.J.Super. 12, 21, 176 A.2d 249 (App.Div.1961), certification denied 36 N.J. 300, 177 A.2d 342 (1962); Daggett v. North Jersey St. Ry Co., 75 N.J.L. 630, 637, 68 A. 179 (E. & A. 1907).

Furthermore, Exhibit P--4 does not purport to be a copy of the entire original death certificate. It is a paper, signed by Rose L. Gibb, Registrar of Vital Statistics in Kearny, which says: 'This is to Certify that the following is correctly copied from a record of Death in my office,' followed by decedent's name, place and date of death, marital condition, occupation, and the above quoted cause of death.

We need not pause to determine whether any of the contents of such an abbreviation of a death certificate may 'be received as Prima facie evidence of the facts therein stated,' under N.J.S. 2A:82--12, N.J.S.A. It is sufficient for present purposes to say it was not competent evidence of the cause of death.

R.S. 26:6--8, N.J.S.A. provides:

'In the execution of a death certificate, the personal particulars shall be obtained from the person best qualified to supply them. The death and last sickness particulars shall be supplied by the attending physician, or if there be no attending physician, by the county physician, or coroner. * * * Each informant shall certify to the particulars supplied by him by signing his name below the list of items furnished.'

'(I)t is only the death certificate made in accordance with law that is Prima facie evidence of the facts stated.' Aitken v. John Hancock Mutual Life Ins. Co., 124 N.J.L. 58, 10 A.2d 745 (E. & A. 1940); Magnuson v. Peterson, Inc., 132 N.J.L. 243, 247, 39 A.2d 644 (Sup.Ct.1944). See also Talbott v. Wooster, 61 N.J.Super. 221, 160 A.2d 313 (Law Div.1960). Exhibit P--4 contained no indication of the source of the information as to the cause of death, or that the original certificate had been signed by any of the persons mentioned in R.S. 26:6--8, N.J.S.A. Therefore it was not Prima facie evidence of the cause of death.

Dr. Applebaum, who had also examined McAllister prior to the 1955 hearing in the Division, testified that in his opinion the death was due to the progress of the arteriosclerosis. However, the judge of compensation, after hearing and seeing the witnesses, accepted the testimony of petitioner's medical witnesses in preference to that of Dr. Applebaum, and the County Court did likewise. We perceive no reason to differ. We hold, therefore, that petitioner and her children are entitled to an award.

That brings us to the question whether the award should be based on L.1956, c. 141, § 3, N.J.S.A. 34:15--13 in effect at the time of McAllister's death (as the judge of compensation held) or on the lesser rate fixed by the statute in force at the time of the accident (as the County Court held).

The parties agree that the only two New Jersey cases which have decided this question are Ermola v. Hudson Paint & Varnish Co., 70 N.J.Super. 76, 174 A.2d 759 (Essex Cty.Ct.1961), which held that the statute in force on the date of the injury governs, and Goldmann v. Johanna Farms, Inc., 61 N.J.Super. 138, 160 A.2d 197 (Mercer Cty.Ct.1960), which concluded that it is the statute in force at the date of death which governs. We shall occasionally refer to these holdings as the Ermola rule and the Goldmann rule.

We must first determine whether L.1956, c. 141, itself indicates that the Legislature intended it to apply only to accidents happening after its enactment. Cf. Chambers v. Toohey, 187 A. 49, 14 N.J.Misc. 780 (Sup.Ct.1936).

Kearny argues that a statute must be construed prospectively unless it expressly provides otherwise, and, since this statute did not provide that it was to cover deaths due to...