For the prosecutor, Herbert R. Baer.
For the respondents, Franklin J. McGlynn.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. 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. The compensation bureau ruled that the burden of proof had not been sustained.
These are the circumstances: On October 27th, 1928, Michael Novick was employed by prosecutor as a yardman
in the coal yards maintained by it at Caldwell, New Jersey. 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 25th, 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., 3 N.J. Mis. R. 451; 128 A. 598; affirmed, 102 N.J.L. 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
co-laborer (he had been employed by prosecutor for seventeen years), testified that on the day in question he saw Michael using the wrench in an endeavor to open the coal car door. He was but a few feet away. He observed 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 perceived 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 ...