For the petitioner-respondent, Felcone & Felcone (Michael Felcone).
For the defendant-prosecutor, W. Holt Apgar.
Before Justices Case and Bodine.
The opinion of the court was delivered by
CASE, J. We review a judgment of the Mercer Common Pleas affirming a determination of the workmen's compensation bureau which found for the present respondent in a proceeding to recover, under the Workmen's Compensation act, for the death of her husband.
Respondent's decedent, Dominick Furferi, in prosecutor's employ, was engaged in removing railroad ties from a car at the barracks yard of the railroad company in Trenton to a convenient storage space adjacent thereto. As Furferi, with three of his fellow workmen, and the use of a double set of tongs, was lifting a railroad tie, he experienced a sharp abdominal pain. He reported to his foreman that he was "sick in the stomach." Later in the day he ceased work and went to a physician. The trouble was not immediately diagnosed. Three days later he was operated upon, and it was found that an old rupture had become incarcerated and strangulated, that the intestine had become gangrenous for twelve inches on each side of the strangulation, was perforated and had permitted fecal matter to ooze into the abdominal cavity, producing peritonitis and, on the day of the operation, death. The cause of death was strangulated hernia and peritonitis due to the free bowel movement into the abdominal cavity.
The questions are: First, may compensation be granted as on an aggravation of an existing hernia without complying with paragraph 11 (x) of the Workmen's Compensation act? 2 Cum. Supp. Comp. Stat., ch. 93, p. 3872; Pamph. L. 1919, p. 201. Second, was the decedent on August 15th, 1933, engaged in interstate transportation?
The claim as filed charged that the injury was an original strangulated inguinal hernia. That ground for compensation was abandoned. Indeed the court below found that the facts of the case did not sustain a recovery under the hernia section (chapter 93, Pamph. L. 1919, p. 204, amended chapter 49, Pamph. L. 1923; 2 Cum. Supp. Comp. Stat., p. 3874) of the statute. Petitioner, however, orally amended her claim in the course of the hearing to ground in the allegation
that the decedent "suffered an aggravation of an existing hernia, which became incarcerated and subsequently strangulated." Compensation was allowed under the provisions of the statute relative to general accidents, and upon the ground that the accident had resulted in the protruding and consequent strangulation and infection of the bowel because of an existing hernia.
The only New Jersey cases relied upon to sustain that theory of recovery are New York Switch and Crossing Co. v. Mullenbach, 92 N.J.L. 254, and Graves v. Burns, Lane and Richardson, 10 N.J. Mis. R. 667. It is worth while to regard closely the sequence in time and thought of the Mullenbach case and the hernia statute. The decision was rendered May 3d, 1918, and found the employer liable for compensation where the workman had strained the muscles of his back aggravating two hernias, resulting in an operation, post-operative pneumonia and death. At that time the statute was silent on the subject of hernia; but at the next legislative session was passed chapter 93 of the Pamph. L. 1919, supra, which added to section 11 of the act the following clause:
"(x) Hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident. Where there is real traumatic hernia resulting from the application of force directly to the abdominal wall, either puncturing or tearing the wall, compensation will be allowed. All other cases will be considered as either congenital or of slow development and not compensable, being a disease rather than an accidental injury; unless conclusive proof is offered that the hernia was immediately caused by such sudden effort or severe strain that, first, the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employe was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer ...