Wartell v. McGarrity

• Decision Date: 21 September 1942
• Parties: WARTELL v. McGARRITY.
• Court: New Jersey Supreme Court

29 A.2d 408

20 N.J.Misc. 497

WARTELL

v. McGARRITY.

New Jersey Department of Labor—Workmen's Compensation Bureau.

Sept. 21, 1942.

Proceeding under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq., by Harry Wartell, claimant, to recover compensation for death of his wife Catherine Wartell, employee, opposed by John J. McGarrity, employer.

Judgment for claimant.

Boyle & Archer, and Frederick P. Greiner, all of Camden, for petitioner.

Ralph N. Kellam, of Camden, for respondent.

SPAIR, Deputy Commissioner.

It is alleged in the claim petition that Catherine Wartell, wife of the petitioner, was in the employ of the respondent on April 13, 1941, at the Log Cabin Lodge, Medford, New Jersey, as head waitress, that on that day, while walking through the dining room in the course of her duties, the said Catherine Wartell slipped and fell on the floor, injuring her hip, and that as a result thereof she died on June 22, 1941. It is further alleged that the petitioner, husband of the said Catherine Wartell, was dependent upon the said Catherine Wartell at the time of the accident or death. The petition also sets forth that petitioner, by reason of defective vision, has been unable to pursue his occupation of men's tailoring for the past seventeen years, and that up to the time of the aforementioned accident he was wholly supported during that period by the decedent.

The answer of the respondent denies that the petitioner was dependent upon the deceased at the time of the accident or death.

It was agreed that the decedent, Catherine Wartell, was in the employ of the respondent on April 13, 1941; that on that day she sustained an accident arising out of and in the course of her employment with the respondent; that as a result of the accident the said Catherine Wartell died on June 22, 1941; that the respondent had due knowledge of the occurrence of the injury; that decedent worked four days a week, was paid $4.50 per day, but in view of the provisions of the Workmen's Compensation Act, N.J S.A. 34:15-1 et seq., the compensation rate must be based on wages of $4.50 a day, a minimum five-day week, or $22.50 per week.

It was further agreed that the medical expenses incident to the treatment of the said Catherine Wartell, because of the accident, were paid by the insurance carrier of the respondent, and, in addition, respondent's insurance carrier paid temporary disability for a period of nine weeks, at the rate of $10 per week; and that the funeral expenses amounting to $283 were paid by the petitioner.

The petitioner, Harry Wartell, according to his testimony, was married to the decedent, Catherine Wartell, on April 6th, 1913, in Windsor, Canada; he continued to live with the decedent until her death; at the time of the death they were residing at 7113 Louise Road, Philadelphia, West Oak Lane, to which place they moved in the year 1926; prior to their residence in Philadelphia, they resided at Canton, Ohio. During their residence in Canton, Ohio, petitioner's occupation of tailoring included selling, altering men's clothes. Petitioner stated that the work required him to distinguish different shades of material, different weaves and designs, that it was necessary to use a needle, tape measure, and piece of chalk, that because of the condition of his eyes, he "couldn't see things right," that he got confused on the patterns, that it was difficult for him to distinguish colors, and that he was unable to thread a needle. It also appears from his testimony that in the year 1926 his employer went into bankruptcy, that thereafter petitioner and his wife moved to Philadelphia, and from that time on he did no more work. The decedent was continuously employed thereafter. She had two employers, N. Snellenberg & Co. and the respondent, John J. McGarrity, who conducted a restaurant and hotel at Medford Lakes, New Jersey. Petitioner stated that his wife's weekly earnings ran from $35 to $60, that during the entire time they resided in Philadelphia the decedent supported the petitioner. She furnished board, room, clothing, spending money, medical attention, and, in fact, everything that was needed by the petitioner. The petitioner stated that the cost of his maintenance approximated $21 a week, that these expenses were paid by the decedent out of her earnings; that they had one daughter, Grace Wartell, who is now 28 years of age. Petitioner stated that because of his eyes, he cannot read a newspaper, he does not read books. Petitioner also stated that the condition of his eyes has gotten gradually worse through the years, from the year 1926 to the year 1942.

Petitioner is 58 years of age, and the decedent, at the time of her death, was 52 years of age.

The petitioner further testified that while he and the decedent lived in Philadelphia, he performed the necessary household duties that had to be performed in the home.

Miss Grace Wartell, daughter of the petitioner and the decedent, testified that she has always resided with her mother and father; that she recalled the occasion when the family moved to the City of Philadelphia, approximately in the year 1926; that, to her knowledge, her father has not been gainfully employed since they moved to Philadelphia, and that her mother was gainfully employed during that time, that she was employed at N. Snellenberg & Co. and the Log Cabin Lodge, Medford Lakes. She further stated that her mother averaged from $35 to $60 a week, depending on tips. This witness further stated that she is presently self-supporting, and has been for some time, to wit, since the year 1934. Before that time her mother paid all the living expenses and other expenses for the members of the family. After this witness started her employment she paid the sum of $8 a week board to her mother. She stated she never contributed to the support of her father, and that while her mother was out working her father took care of the home, and that, to her knowledge, her mother completely supported her father.

Grace Wartell further testified that her father worked while they lived in Canton, Ohio, that he was not employed after they moved to Philadelphia, and that her father did the work around the house after they moved to Philadelphia.

The respondent produced Dr. James S. Shipman, who testified that he examined the petitioner on March 20th, 1942. The doctor stated that the petitioner's vision was taken with the glasses he was wearing, that his vision in the right eye, with correction, was six over twenty-one, or approximately 75% of normal; vision with the glasses he was wearing, in the left eye, was six over twelve, or approximately 90% of normal. The doctor stated: "We attempted to refract him, roughly, to improve his vision, and with a change in his glass his vision in the right eye was improved to six over fifteen, or 80% of normal and his vision in the left eye was...