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Mieri v. Metafield Inc.

Decided: May 13, 1941.

FRANK DI MIERI, PETITIONER-DEFENDANT IN CERTIORARI,
v.
METAFIELD, INC., RESPONDENT-PROSECUTOR IN CERTIORARI



On certiorari from the Middlesex County Court of Common Pleas.

For the petitioner-defendant, Fleming & Potter.

For the respondent-prosecutor, John W. Taylor (Everitt Rhinehart, of counsel).

Before Brogan, Chief Justice, and Justices Parker and Perskie.

Brogan

BROGAN, CHIEF JUSTICE. This is a compensation case and brings up the judgment and the record in the Middlesex County Pleas in the return to the writ. The petitioner for compensation was successful in the Bureau and on appeal the award was affirmed in the Pleas. The issue is whether the inguinal hernia that made itself manifest on April 22d, 1940, and which necessitated a surgical operation upon the petitioner on the following day, was compensable under the statute. The issue here is one of fact. This particular disability, i.e., hernia, has had special attention at the hands of the legislature and the cases of hernia that are compensable are carefully delineated and delimited in the Workmen's Compensation Act. The statutory provision (R.S. 34:15-12) is as follows:

"Inguinal hernia is a disease which ordinarily develops gradually, being very rarely the result of an accident. Where there is a 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 plain 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 within twenty-four hours after the occurrence of the hernia (days when the business is not in operation, such as Sundays, Saturdays or holidays shall be excluded from this twenty-four hour period); fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia * * *."

It is not claimed in this case that the hernia in question is "a real traumatic hernia resulting from the application of force directly to the abdominal wall" for which compensation [126 NJL Page 486] will be allowed. Other than this class of traumatic hernia all other cases of hernia are not compensable unless "conclusive proof" of the five particular elements mentioned in the statute, supra, be supplied. That petitioner suffered a hernia is admitted. The employer claims it is not compensable because the proof is not sufficient to meet the requirements of the statute, supra; but rather that the hernia is one that developed gradually. The petitioner claims that it is compensable and that he has shown by conclusive proof that the five concomitant incidents, indispensable under the statute, were present. That brings us to the pith of this case, i.e., whether petitioner has proved the five elements by "conclusive proof." What norm or quality of proof satisfies the legislative standard of "conclusive proof?" The term has not been construed or defined in any of our cases. It was decided in Prino v. Austin Co., 121 N.J.L. 518, that the standard of "conclusive proof" as regards one element of hernia, i.e., prostration, was not met. The authority of that case is not in point. The second syllabus at the head of the opinion is broader than the opinion itself. The usual sources for definition -- legal dictionaries and the like -- furnish little help. Of course, they define the term "conclusive proof" in general; but an abstract definition is often inept when, as here, we are required to give effect to a word or phrase in its reasonable relationship to the statutory text. It applies not to proof generally in compensation cases but only to those based on hernia that was not caused by the application of traumatic force to the abdominal wall. It might be said that the requirement is that the "conclusive proof" should be so strong as to admit of only one determination; or by contrast that it is proof reasonably sufficient to lead to a conclusion. Some authorities believe that the term "conclusive evidence" is synonymous with "incontrovertible evidence," 23 C.J. 8, i.e., evidence so strong as to overbear all other in the case to the contrary. It is also suggested that the term means "uncontradictable," therefore controlling proof. We do not think the legislature had such a harsh and inflexible standard in mind when it called for "conclusive proof" on this type of case; for if such proof were required, i.e., uncontroverted or

incontrovertible, a petitioner would find it almost impossible to meet this standard. It is hard to imagine a case where the party to be charged could not controvert the petitioner's testimony on at least one of the five statutory requirements and this, if uncontroverted proof be necessary to succeed, would be fatal to the petitioner in almost all cases. Certainly that is not what the legislature intended in this field of the law, generally regarded as beneficent to the employe.

We think, first, that the statute, in this class of compensation case, contemplates degree of proof. We think, further, that the statutory phrase should be construed to mean such proof that the fact finder, after hearing the testimony in support of the claim and contrasting and weighing it with that produced to rebut it, is clearly of the view that the claim has been sustained by evidence that is convincing in character. The petitioner must prove that the hernia is the immediate result (Cf. Borodaeff v. Province, &c., 109 N.J.L. 25; affirmed, 110 Id. 20) of a sudden effort or strain and the proof of the five requirements must be such as will reasonably negative the inference or conclusion that it was congenital or of slow development or caused by disease rather than an untoward incident (Compare Borodaeff v. Province, &c., supra; McBride Co., &c., v. Kuehn, 11 N.J. Mis. R. 764; 168 A. 64; Sussick v. Glen Alden Coal, &c., (a Pennsylvania case), 165 Id. 658). Consequently it is unimportant whether the conclusive proof required by the statute is challenged or not -- that it be contradicted or not -- so long as it leaves the mind of the fact finder convinced that the hernia resulted not from disease or congenital weakness but immediately from sudden strain or effort in the course of the employment. So the qualifying word "conclusive," as used in the statute, supra, is not to be regarded in a sense that imports to it a quality that will not tolerate challenge or contradiction; but rather in its ordinary sense that the proof is convincing and such that it justifies a conclusion that the statutory requirements of such case were proved. A rigid, inflexible construction of the phrase would require a norm or quality of proof, the equivalent of moral certitude. Such construction we cannot reconcile with the development of the

law of evidence on the civil side in this state or elsewhere. The construction we have placed upon the legislative expression, we think, is in accord with the legislative intention. We now proceed to examine the case on the facts and the law.

The petitioner testified that on the afternoon of April 22d, 1940, he was carrying a box which contained metal pieces. He had got the box from the "cage" where the unfinished work in the plant was kept, walked about sixty feet to his work bench "and in reaching from one bench to the other to lay my work down my foot slipped out and I dropped the box and I experienced a tearing of the tissues down in the groin." He said that he was prostrated; that he had severe pain; that he tried to work but could not and that he immediately examined the affected part and discovered the hernial lump. He reported the matter to his superiors -- first, the assistant foreman, and then the general manager, and was sent by the latter to Dr. Forney who advised an operation which was done the following day. The proof as regards pain, prostration, the severity of the case, reporting to the employer, and such physical distress as to require the attendance of a licensed physician was not controverted and satisfied the requirements of the statute, supra, as to the second, third, fourth and fifth points particularly set out therein. Petitioner's statement as to the happening was confirmed by two fellow employes who saw him bend over, slip, drop the box, "grab his side, turn white, complain of pain and inability to work," &c. The testimony of the general manager, Mr. Gorsline, confirmed the petitioner's statement to this extent -- that on the afternoon of April 22d, 1940, the employe complained of the appearance of a hernial lump; that he looked "white as a ...


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