In certiorari. Beerman v. Public Service, &c., 15 N.J. Mis. R. 318; 191 A. 297; 16 N.J. Mis. R. 11; 197 A. 57.
For the petitioner-prosecutor, Abram A. Lebson.
For the respondent-defendant, Henry H. Fryling and William H. Speer (William F. Vosseller, of counsel).
Before Brogan, Chief Justice, and Justices Donges and Porter.
BROGAN, CHIEF JUSTICE. Certiorari was allowed in this case to review a judgment of the Bergen County Pleas, reversing a judgment of the Compensation Bureau which awarded compensation to Mary Beerman, the widow of a deceased employe of the respondent. It is beyond dispute that Henry Beerman, the employe, died from cancer (lympho-sarcoma). The claim petition stated that the employe met with injury by accident that arose out of and in the course of the employment. The injury consisted of an alleged straining of the recti and lumbar muscles as a result of attempting to prevent a large bus wheel from falling. The two tribunals which passed on the questions involved arrived at directly opposite judgments on the facts. Whether they are in conflict or accord makes no difference in this court since it is our duty under the statute (R.S. 2:81-8) to determine the law and the facts independently of the finding thereon by the lower courts. (Cf. Anderson v. Federal Shipbuilding and Drydock Co., 118 N.J.L. 55, and cases cited therein.)
Two questions are argued in the prosecutor's brief -- (a) Did the prosecutor prove injury by accident on the stated occasion? (b) Did the prosecutor sustain the burden of proving that death was due to the injuries suffered through the accident either as a direct or as a contributing cause by aggravating an existing condition?
The decedent was twenty-four years old at the time of the occurrence, weighing one hundred and eighty pounds, with no appearance of illness. He worked at night as a repair man at the garage of the respondent in Cresskill, Bergen county, New Jersey. When he came home on the morning of September 23d, 1935, he complained to his wife, saying, "I strained my gut," and that he had pains across his back. He consulted Dr. Mark M. Kroll, a physician of his own choosing, and later, on the advice of Dr. Kroll, went to see Dr. Protzman, who is on the medical staff of the respondent employer. Thereafter he worked intermittently, but on October 5th, entered the Englewood Hospital where he remained until he died on November 4th. At the time of his death his weight had dwindled to approximately one hundred pounds.
A fellow employe testified that on September 22d, while the decedent was at work on one of respondent's buses, he noticed him in a squatting position under a bus, apparently working at the clutch, and the decedent, in answer to the witness' question as to what was the matter with him, said, "I don't know. My stomach hurts -- just putting this thing up here." About an hour later decedent was observed lying down in the bus; at that time Beerman repeated that he had "hurt his gut" working on the bus and that his back hurt him a little. The foreman's book carried an "accident report" of the fact that the decedent claimed to have been hurt. There is conflict as to the date of the injury but, in our view, that is immaterial. The question of notice is not seriously disputed.
The death report, after autopsy, showed that the principal cause of death was cancer and that the "contributory cause of importance, not related to principal cause, is accidental sprain of recti and lumbar muscles, September 29th, 1935."
We turn to the main fact issue.
Dr. Kroll, to whom the decedent went first for treatment, testified that he had diagnosed the trouble as "acute myositis of traumatic origin" which is a doctor's way of saying that there was severe inflammation of the stomach muscles brought about by force externally applied. He frankly admitted, in the light of subsequent developments, especially the autopsy, that this diagnosis was incorrect; that after treating Beerman he sent the patient, an employe of the transport company, to Dr. Protzman, the company's doctor. Dr. Protzman testified that when he saw Mr. Beerman he treated him by heat applications and "strapped up" his back. He treated the employe until October 5th, but on October 7th, upon calling at Mr. Beerman's home and finding him unable to move, he advised that he be taken to the hospital, which was done on October 10th. Mr. Beerman died on November 4th. It was Dr. Protzman's opinion prior to the autopsy that the accidental sprain was the cause of death.
In this case all the medical testimony agreed, particularly after the autopsy, that the death was due ...