For the prosecutor, Autenrieth & Wortendyke (Reynier J. Wortendyke, Jr., of counsel).
For the respondent, Quinn & Doremus (Vincent J. McCue, of counsel).
Before Justices Bodine, Perskie and Porter.
The opinion of the court was delivered by
PERSKIE, J. The single question requiring decision, on the facts of this workmen's compensation case, is whether respondent's decedent died because of gas asphyxiation, as respondent claims, or because of a coronary thrombosis, as prosecutor claims.
Edgar Morris Pierce, the decedent, was a man of 50 years of age. He was employed as a gas fitter by the Jersey Central Power and Light Company, prosecutor here and respondent below. On December 2d, 1938, between 11:00 and 11:30 o'clock in the forenoon, while in the course of his employment, he donned a gas mask, and after a fellow workman assisted him in adjusting it, he entered a hole four feet square by three and one-half feet deep for the purpose of catching the thread of a new fitting on a gas main. According to the testimony of the fellow employee, the decedent came out of the hole in a minute or a minute and a half after he entered it. When he was about twenty feet from the hole, and without removing the mask, the employee testified that decedent said, "Everything is all right and the fitting is cut straight, too." Decedent then took off the mask and immediately reeled. He was pronounced dead at 12:50 P.M.
Respondent, petitioner below, filed a claim petition on January 7th, 1939, in which she stated that the "cause of death was asphyxiation by gas." Prosecutor answered that "no accident occurred" -- and that death was due to "natural" and not to "traumatic causes" which "did not arise out of decedent's employment," that is, he died from heart disease. At the hearings, testimony was introduced by prosecutor to show that a blood clot was found in decedent's coronary artery during a post mortem autopsy. Prosecutor also introduced testimony to show that a specimen of blood taken from decedent at the autopsy contained less than the ordinary lethal dose of carbon monoxide.
The Workmen's Compensation Bureau found that the post mortem autopsy "revealed the presence of a thrombus and that a laboratory analysis of the blood taken from the decedent's body indicated a presence of carbon monoxide in a quantity too small to have possibly caused the death." Accordingly, an order was filed on July 12th, 1940, dismissing the claim petition. On appeal to the Monmouth County Court of Common Pleas, Judge Giordano, after reviewing and analyzing the testimony, concluded that the evidence "preponderates in favor of the conclusion that decedent met his death from carbon monoxide poisoning arising out of and in the course of his employment." Therefore, the order of the Bureau was reversed and compensation was awarded to respondent. On prosecutor's application the writ of certiorari was granted. It now becomes our duty to examine the evidence and to determine whether respondent has established, by a preponderance of probabilities, that the employment was one of the controlling causes without which the death would not have happened. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533; 6 A.2d 213; Calicchio v. Jersey City Stock Yards Co., 125 N.J.L. 112; 14 A.2d 465. In our consideration of the facts which prosecutor has produced to sustain its defense, by which defense it seeks to avoid liability for a cause for which it is not responsible, we must bear in mind that the burden of proof is upon the prosecutor-employer -- "to show such cause." Atchinson v. Colgate & Co., 3 N.J. Mis. R. 451, 452; 128 A. 598; affirmed, 102 N.J.L. 425; 131 A. 921. We turn to the proofs.
Dr. Pons, called by prosecutor, and Dr. Featherstone, director of prosecutor's medical department, were both present at the autopsy. Each testified that the clot was an ante mortem one. Dr. Pons, however, on cross-examination, pointed out that a post mortem clot "would be soft and * * * could be removed very easily without being attached to the blood vessel wall." He admitted, moreover, that the clot here in question was a "fresh clot," that it "was not organized" but was "soft and rubbery and reddish" and was "of very recent origin."
Although Dr. Hartman, the county physician, testified that the "cause of death was thrombosis of the descending left coronary artery," he also stated that the clot was a fresh one and that there were "no damaged muscles around where the clot showed." His inability to recall his discussion with the other doctors and his apparent lack of knowledge of the nature of blood ...