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Tracey v. South River Lumber Co.

Decided: February 19, 1943.

STEVEN TRACEY, PETITIONER-DEFENDANT,
v.
SOUTH RIVER LUMBER COMPANY, RESPONDENT-PROSECUTOR



On rule to show cause why writ of certiorari should not issue.

For the prosecutor, George S. Applegate, Jr., and Francis M. Seaman.

For the defendant, Daniel L. Golden and Russell Fleming.

Before Justices Case, Donges and Colie.

Donges

The opinion of the court was delivered by

DONGES, J. This case brings up for review a judgment of the Middlesex County Court of Common Pleas affirming a determination of the Workmen's Compensation Bureau which awarded compensation to the petitioner-defendant for disability resulting from an accident alleged to have arisen out of and in the course of his employment by the prosecutor. Counsel have stipulated that, if the court determine a writ should issue, then the matter should be dealt with as if a writ had issued and the merits be decided.

Petitioner, who was sixty-six years of age, was employed as a handy man in and about the lumber yard of the prosecutor

at South River. His testimony was to the effect that his duties consisted of loading trucks, carrying lumber, painting and pulling spikes from lumber. The claim of the petitioner was that in the afternoon of July 26th, 1941, while engaged in loading lumber on a truck, he felt faint; he "wobbled up and down because he couldn't see;" he tried to get up but fell down; he called for help. The description of the accident contained in the claim petition is as follows: "I collapsed while loading a large piece of lumber on the truck and did not know what happened afterwards." He was taken home and later in the afternoon was found by his daughter-in-law lying on a cot in the yard of his home.

The medical testimony is clear that petitioner suffered a cerebral hemorrhage which caused partial paralysis.

The controversy centers around the question of whether or not the condition of the petitioner is the result of an accident which occurred in the course of his employment. The petitioner testified, as stated, that he was stricken whilst engaged in the laborious work of loading lumber on a truck on a hot day. There is no corroboration of his testimony other than that of his daughter-in-law who, of course, had no knowledge of the incident which occurred at the place of employment. The attending physician testified that work of the type petitioner said he was doing, namely loading a lumber truck, was sufficiently laborious to have produced the hemorrhage from which petitioner was suffering.

On behalf of the prosecutor there is a flat denial of any such occurrence as petitioner claims took place. Max Morris, operator of the lumber yard, testified that petitioner's duties consisted of raking the yard, taking care of a stove and feeding a dog, for which he was paid $6 a week. Morris testified that on the day of the alleged accident he loaded his truck with lumber in the morning. He was assisted by an employee named Joe Shuberda but was not assisted by the petitioner. He testified that he left the lumber yard with his truck before twelve o'clock and did not return until after four o'clock and that there was no truck ...


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