Moleski v. Bohen

• Citation: 58 A.2d 849
• Parties: MOLESKI v. BOHEN et al.
• Decision Date: 12 May 1948
• Court: New Jersey Court of Common Pleas

58 A.2d 849

MOLESKI

v.BOHEN et al.

Court of Common Pleas of New Jersey, Hudson County.

May 12, 1948.

Proceedings under the Workmen's Compensation Act by Eleanor Moleski for compensation for death of her husband, opposed by Morris Bohen and another, trading as William Zalkin. The claim was dismissed, and the petitioner appealed.

Compensation awarded.

Archie Elkins, of Jersey City, for petitioner-appellant.

Harkavy & Lieb, of Newark, for respondents-appellees.

DREWEN, Judge.

Petitioner claims an award for the death of her husband. He was 37 years of age and had been in respondent's employ for approximately ten years, minus time spent in the military service. His work was that of driving respondents' delivery truck, loading and delivering large quantities of various building materials. That decedent's death occurred in the course of his employment is admitted. The issue turns on whether it resulted from an accident arising out of the employment.

He died on May 29, 1947, at about 6:30 P.M., his working day having begun at 7:50 A.M. He had just left his truck in front of a customer's dwelling and ascended the porch steps to inquire of the householder about a place for the deposit of the goods to be delivered. He had rung the bell and while awaiting the response dropped dead on the proch.

We do not see how it could be fairly doubted that the man had had a hard, laborious day; an unusually hard day according to the testimony of witnesses on both sides, testimony that remains unchallenged. To begin with, the heat was extraordinarily oppressive. The official records in evidence show that at 8 A.M. it was 76, at 12 M. it was 83, at 1 P.M. 85 and that between 4 and 6 P.M. it slowly receded from 85 to 78. Apart from this abstract record, the degree of human reaction to the weather is shown by the testimony of decedent's foreman, who describes the day as ‘very, very hot.’ Respondents' witness Rudat says: ‘It was almost a record temperature,’ and witnesses on both sides describe decedent while at work as sweating ‘quite a bit.’

The day's succession of tasks, culminating in the final collapse, is shown as follows: Beginning at 7:50 A.M. decedent helped to load a truck with bags of cement weighing about 94 lbs. each. At 8:30 A.M. he left respondents' yard with a load of cement in bags intended for four or five deliveries, these requiring the carrying of cement from the trucks to the delivery premises. At 10 A.M. he returned to the yard and he, with another, transferred 80 bags of material weighing about 100 lbs. each from one truck to another, which was later driven by decedent for the delivery of the load. After making the delivery he drove to the yard of a concern referred to as Tompkins Brothers and helped in the loading on his truck, by hand, of a ‘couple of hundred bricks.’ He returned to the yard at about 12:30 and spent the next forty minutes or so at lunch. At approximately 1 o'clock he left the yard with a load for delivery consisting of ten bundles of sheet rock weighing about 95 lbs. each, 30 joists and several bags of plaster weighing about 100 lbs. each. At 3 P.M. while on the road with this material one of the truck tires went flat and he laid up for about two hours waiting for the mechanic and necessary equipment. During this interval decedent and his helper ‘waited in the shade,’ except that decedent aided the mechanic in removing the disabled wheel and putting the new one in place. Each of these operations required the lifting of the wheel, weighing about 80 or 90 pounds, from the ground, a distance of about 1 inch. After the making of this repair decedent returned to the yard at about 4 P.M. He immediately drove out another truck laden with approximately five tons of material, to be disposed of in five deliveries. It was while waiting on the porch, as already shown, in anticipation of the fifth delivery that decedent died.

The four deliveries already made required numerous trips from the truck to a garage or cellar or other place of deposit, all at various distances from the truck, and frequently with objects weighing singly or in the aggregate almost 100 lbs. per trip. Some of the carrying and pulling decedent did alone and some of it with the help of the purchaser. He climbed on and off his truck. He walked up and down the steps of terraces and porches, and at least one, at seemingly two, cellars. His helper had to remain on the truck so as to hand the goods down, the truck had been loaded so high. As decedent's foreman testified, ‘It was all heavy stuff.’ The making of the four trips required the handing of large, heavy and awkwardly shaped pieces which on one occasion had to be, with difficulty, maneuvered into a cellar. The difficulty mentioned is described in detail by the witness McCardle to whom the particular goods were delivered. The witness Clements, to whom the second delivery was made, said that he and decedent made eight trips into the cellar with sheet rock and that ‘the job was too heavy for one man.’ That the work was unusually arduous and heavy is further shown by the testimony of decedent's foreman that ‘it was a very hard day's work, * * * unusually hard;’ that ‘there was an accumulation of orders for sheet rock,’ which accounted for the extraordinary amount of such material handled that day. And the witness Bohen, one of the respondents, says that because of the ‘heaviness of the work’ it was necessary that day to supply decedent with a helper. But the helper was not assigned until after lunch, when decedent left the yard at one o'clock. It should be noted too that respondents in their brief expressly concede ‘that the work that day was extra heavy,’ though urging that the presence of the helper reduced decedent's work to normal. The avoidance begs the question. Plainly the difference here between a helper and no helper is the difference between the difficult and the impossible. The proofs show with picturesque clarity how the height of the five-ton load made it imperative that there be an extra man. And how much of the five tons of building material had already been lifted and carried or dragged from the truck when only the last delivery had yet to be made does not precisely appear, but it is indubitable in the circumstances that it was the greater portion by far.

Now, in the course of the five deliveries and toward the end of the day, decedent manifested, according to the proofs in petitioner's case, certain definite cardiac symptoms. Respondent denies there were antecedent symptoms, and upon the one factual issue thus resulting the ultimate outcome depends. It will be seen that the theories of the medical experts finally are not in disagreement, but that all alike, in the last analysis, are shown to be for or against the claim of causal relation, depending upon whether the positive or negative contention prevails in this matter of the symptoms.

What are the proofs? Petitioner's case shows by the testimony of Krosn, the helper on the truck, that after decedent had made the third delivery he was ‘all in,’ was sweating and blue in the face and started to breathe heavily; that at the same time he held his hand over his chest and complained of severe pain. After resting ten or fifteen minutes he said he was ‘all right,’ climbed back on the truck and drove to the place of the fourth delivery, where the aforementioned difficulty was had in getting the goods into the cellar. Upon the completion of this delivery decedent again complained of severe pain in the chest and again breathed heavily. The blueness returned to his face, and before climbing back on the truck he remained standing beside it for about five minutes, then remarking: ‘All right, we can go. This is the last stop we have to finish and we can go home.’ The drive between the fourth and fifth deliveries was a matter of a few blocks, and during it, according to the helper, decedent's breathing was very heavy all the time. Upon arriving at the last place of delivery decedent left his truck and walked slowly up the steps to the porch. It was here, in the manner already described, that he fell and died. It should be added that when the foreman, Slomovitz, saw decedent at about four o'clock in the afternoon the latter was ‘sort of poofed out. He was like gray, tired.’ Respecting the testimony of Krosn, respondent relies for contradiction mainly on the witnesses Rudat and McCardle, the persons by whom the goods were received at the third and fourth places of delivery and who rendered decedent some help. It was Rudat, it should be remembered, who received the goods at the third stop, where decedent is described as showing the symptoms after completing the delivery and returning to the truck, and where he stood beside the truck several minutes before driving off. Rudat's testimony,...