For the prosecutor, George G. Tartar.
For the defendant, Edwin Joseph O'Brien.
Before Justice Donges, sitting alone.
DONGES, J. This case is before me on a rule to show cause why a writ of certiorari should not issue to review a judgment of the Salem County Court of Common Pleas in a workman's compensation case. It has been stipulated that, if I concluded a writ should issue, the case should be considered by me upon the merits as if a writ had been allowed. This has been done.
The workmen's compensation bureau allowed compensation to the prosecutor for the death of her husband, Frank S. Richter, as the result of an accident alleged to have arisen out of and in the course of his employment by the defendant. Richter died on February 6th, 1934, of lobar pneumonia which prosecutor contends he contracted as the result of exposure in a cold, damp, unheated building where he worked approximately
from twelve-thirty P.M. to three-thirty P.M., on January 26th, 1934. The testimony was that the building in which he and a fellow workman, Nash, worked on this day was a concrete storage building, without windows, with floor of dirt, in part at least, and with an opening in the wall, designed to permit the operation of a conveyor belt which was no longer operated, through which opening the elements could enter. The evidence was that the building was damp and was colder than the outside; Nash estimated about fifteen degrees colder and a test conducted by defendant's employes in March, 1934, showed a temperature 2.2 degrees colder than outdoors. Nash testified that on the day in question he went outside several times to get warm.
Decedent suffered from a cold for several days before he spent the three hours in the storage building. He came to work on the following day, but on returning home called his physician and was found to have pneumonia, from which he died ten days later.
The bureau found that decedent had been subjected to exposure of such nature as to meet the requirements in cases of this character for the awarding of compensation. The Common Pleas Court held "it appears from the testimony that persons attached to the carpenter shop were sent to work in the press-plate shop; that decedent had been there on other occasions and that on the day of the alleged 'accident' petitioner was accompanied by one other carpenter. Therefore, the employment of the decedent did not subject him to any greater exposure than that to which persons generally in his locality were exposed."
With this conclusion I am unable to agree. In Kauffeld v. G.F. Pfund & Sons, 97 N.J.L. 335; 116 A. 487, it is stated:
"The rule is that, when the employment brings a greater exposure than that to which persons generally in that locality are exposed, injury or death resulting therefrom, such injury or death does arise out of the employment."
Clearly such a situation is shown by the uncontradicted testimony in the instant case. It is not ...