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Auten v. Johnston

Decided: April 13, 1935.

BERTHA E. AUTEN, PROSECUTRIX,
v.
VICTOR W. JOHNSTON AND ELIZABETH T. JOHNSTON, RESPONDENTS



On certiorari.

For the prosecutor, Russell Fleming and Edwin Joseph O'Brien.

For the respondents, William M. McConnell and David S. Bingham.

Before Justices Heher and Perskie.

Heher

The opinion of the court was delivered by

HEHER, J. The primary inquiry is whether prosecutrix suffered injury by an accident which arose out of and in the course of her employment as a domestic servant in the home of the respondents. This question was resolved in the affirmative by the compensation bureau, and in the negative by the Sussex Court of Common Pleas.

These are the circumstances: Concededly, prosecutrix was the victim of a mishap which arose out of and in the course of her employment on April 13th, 1933. While she was engaged in baking potatoes in the kitchen of respondents' summer home on Lake Mohawk, in the city of Sparta, there was an "explosion" in the oven of the gas stove used for the purpose. According to prosecutrix, it was of such force as to violently propel her a distance of four feet across the kitchen to a wall, where the back of her head came in contact with a window facing. These, so she testified, were the immediate

manifestations of injury. "I noticed a slight injury to my eyes, the vision was blurred and I could not see. My hair was burnt and my eyebrows and my eyelashes were burnt off and I had a burn on my left arm." Her injuries were not immediately disabling; and, believing that the consequences would not be serious, she continued at her employment until June 12th, 1933, when a medical examination disclosed a bilateral detachment of the retina.

It is not questioned that an accident occurred. There was a sufficient manifestation of the unusual occurrence in the kitchen to attract the attention of Mrs. Johnston, who was elsewhere in the house. She heard "a slight noise" in the kitchen; she entered and found the plaintiff laughing. The latter explained that "the stove blew out;" she said her eyebrows were singed. The next morning prosecutrix told Mrs. Johnston that her eyebrows were "singed; they feel kind of funny."

The inquiry remains, was the disabling physical condition related to the employment in the statutory sense -- was there a causal connection between it and the accident which thus befell prosecutrix? The Common Pleas judge held that prosecutrix had not sustained the burden of proof in this regard; and in this he fell into error.

There is no evidence that prosecutrix was conscious of an affection of the eyes before the occurrence in question; nor is there any basis in the proofs for the conclusion that prior thereto she was afflicted with a disease of the eyes, or any physical ailment related thereto. She testified, and there was no contradiction, that she was then in "perfect" health, and that her eyes were normal. It is undeniable that thereafter there were manifestations of eye trouble. The condition was progressive. This physical impairment was observed by respondents; and Mr. Johnston, in the early part of June, insisted that a consultation be had with his family physician. He chided prosecutrix for not bringing "this to my ...


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