Slayback Van Order Co. v. Eiben

• Decision Date: 27 March 1935
• Docket Number: No. 205.,205.
• Citation: 177 A. 671
• Parties: SLAYBACK VAN ORDER CO. v. EIBEN et al.
• Court: New Jersey Supreme Court

177 A. 671

SLAYBACK VAN ORDER CO.

v. EIBEN et al.

No. 205.

Supreme Court of New Jersey.

March 27, 1935.

Proceeding under the Workmen's Compensation Act by Mary Novick, for whom Michael Eiben, administrator of the estate of Mary Novick, deceased, was later substituted, for the death of deceased's husband, Michael Novick, claimant, opposed by the Slayback Van Order Company, employer. From a judgment of the court of common pleas in and for the county of Essex awarding claimant compensation, the employer brings certiorari. Judgment affirmed.

Argued October term, 1934, before HEHER and PERSKIE, JJ.

Herbert R. Baer, of Newark, for prosecutor.

Franklin J. McGlynn, of Newark, for respondents.

HEHER, Justice.

The decisive question here is whether the death of Michael Novick, the husband of Eiben's intestate, was the result of an accident which arose out of and in the course of his employment with prosecutor. It was resolved in the affirmative in the Essex common pleas, and compensation was awarded under the Workmen's Compensation Act. Pamph. L. 1911, p. 134, as amended (Comp. St. Supp. 1924, § **236—1 et seq., Comp. St. Supp. 1930, § **236—11 et seq.). The Compensation Bureau ruled that the burden of proof had not been sustained.

These are the circumstances: On October 27, 1928, Michael Novick was emp'oyed by prosecutor as a yardman in the coal yards maintained by it at Caldwell, N. J. He was required to unload coal from cars delivered to his employer's railroad siding. It is claimed that, on the day named, while engaged in opening a door of a coal car by means of a large wrench, the instrument accidentally slipped from its position, and struck his face below the right eye, causing a pin-point laceration; and that this became the portal of entry for the streptococcus germ, which, in turn, produced facial erysipelas in the course of time, and death on November 16th following. On February 25, 1929, his widow, Mary, filed a petition for compensation in the bureau. The determination there was that, while Michael was the victim of an accident which arose out of and in the course of his employment, the petitioner "failed to sustain the burden of proof in establishing that death was due to traumatic erysipelas by means of the germ entering at the point of the laceration under the right eye." There was a further finding, under the doctrine laid down in Atchison v. Colgate & Co., 128 A. 598, 3 N. J. Misc. 451, affirmed 102 N. J. Law, 425, 131 A. 921, that the employer "has met the burden required of it and has affirmatively proven that death was caused by idiopathic erysipelas, the germ of which was contracted through some infected part of the inner nose." The petitioner thereupon appealed. During the pendency of the appeal she remarried and shortly thereafter died. Her surviving husband, Eiben, was appointed administrator of her estate, and in that capacity was substituted as a party for the deceased petitioner.

The court of common pleas concluded that the fatal disease was the result of the induction of the germ through the facial laceration caused by the blow of the wrench, and that the accident was therefore the "proximate and contributing cause of death." The employer thereupon sued out this certiorari.

The first insistence of prosecutor is that "there was no proof that the decedent sustained an accident arising out of and in the course of his employment." This claim is without substance. One Cheko, decedent's stepson and also a colaborer (he had been employed by prosecutor for seventeen years), testified that on the day in question he observed Michael using the wrench in an endeavor to open the coal car door. He was but a few feet away. He perceived Michael holding "his hand over his right eye." This was a few moments after Michael "started to turn the wrench." He remained in this position—the right hand over his right eye—"probably two or three minutes, maybe more." The witness promptly went to Michael's assistance, and, using the wrench, opened the car door. While he was so engaged, Michael "stood there and hold (sic) his eye." When they quit work for the day, the witness observed a discoloration underneath the right eye; and he noticed, when decedent reported for work the next day, that it was "still black"; and that there was a "very little cut—just like a little bit penknife, just like a little scratch," in that region. Decedent continued at work, but the witness noted a daily aggravation of his facial condition. He testified that the deceased made the following explanatory statement to him:

"When he started to turn the wrench I happened to look the other way; I turn back; I ask him what is the matter. He said to me— * * *

"Q. What did Mike say to you during that day, if anything? A. All I seen when holding his hand over his eye I ask him what is the matter and he said, 'I got hit with the wrench.'

"Q. When did he say that? A. When we was dumping the car of coal.

"Q. What was he doing when he said it? A. Then after he got the wrench in his one hand and he hold the other hand the eye."

It is a logical inference that this conversation occurred immediately after the witness went to Novick's assistance.

Prosecutor maintains that the evidence relating to the statement or declaration claimed to have been made by decedent was essentially hearsay, and incompetent, as not within one of the exceptions to the rule excluding such evidence as untrustworthy. If the premise be correct, the evidence is inadmissible. Helminsky v. Ford Motor Company, 111 N. J. Law, 369, 168 A. 420. It remains to consider whether it was a declaration admissible as part of the res gesta?. A declaration is within this rule when it is "concomitant with the main fact under consideration, and is so connected with it as to illustrate its character." Where it is merely narrative of a past occurrence, it is not receivable as proof of the character of the occurrence. Blackman v. West Jersey & Seashore R. Co., 68 N. J. Law, 1, 52 A. 370.

Is this declaration a mere narrative of a past occurrence? We incline to the view that it is much more than that. It was exclamatory in character—the undesigned incident or emanation of the accident. It has the unquestioned element of spontaneity. The res gestæ includes those circumstances which are the undesigned incidents of a particular litigated act. They may be separated from the act by a lapse of time more or less appreciable, and may consist of remarks of anyone concerned, whether participant or bystander. They may comprise things left undone as well as things done. They must be the necessary incidents of the litigated act in the sense that they are part of the immediate preparations for, or emanations of, such act, and are not produced by the calculated policy of the actors. State v. Doro, 103 N. J. Law, 88, 93, 134 A. 611; State v. Kane, 77 N. J. Law, 244, 72 A. 39; Trenton Passenger Railway Co. v. Cooper, 60 N. J. Law, 219, 37 A. 730, 38 L. R. A. 637, 64 Am. St. Rep. 592; Hunter v. State, 40 N. J. Law, 495; Donnelly v. State, 26 N. J. Law, 601.

While Cheko's testimony leaves one in doubt as to the period intervening between the time of the alleged accident and the declaration, the case is yet within the principle. As pointed out in State v. Doro, supra, the lapse of time more or less appreciable is not, in itself, a conclusive criterion of admissibility. In an action upon a policy of insurance against personal injury by accident, the declaration of the deceased insured to his wife, upon his return to their bedroom during the night (he had left it but a short time before), that he had "fallen down the [back] stairs and almost killed himself," was held to be admissible. Travelers' Insurance Co. v. Mosley 8 Wall. (75 U. S.) 397, 411, 19 L. Ed. 437. This case declares the underlying considerations for the rule in question: "To bring such declarations within this principle, generally, they must be contemporaneous with the main fact to which they relate. * * * In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. To reject the verbal fact would not infrequently have the same effect as to strike out the controlling member from a sentence, or the controlling sentence from its context. * * * Here the principal fact is the bodily injury. The res gestœ are the statements of the...