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Kardos v. American Smelting and Refining Co.

Decided: October 30, 1944.

DENNIS KARDOS, PROSECUTOR,
v.
AMERICAN SMELTING AND REFINING CO., RESPONDENT



On writ of certiorari.

For the prosecutor, John A. Laird and David Roskein.

For the respondent, Seaman & Seaman (Joseph J. Seaman).

Before Justices Case, Bodine and Porter.

Case

The opinion of the court was delivered by

CASE, J. This is a workman's compensation case. The employer produced no proofs. It moved for an award in its favor at the close of petitioner's case. The Bureau determined that the petitioner had sustained the material allegations of his petition by the preponderance of the evidence, that as a result of exposure to drafts and water incident to the employment on or about February 8th, 1941, the petitioner contracted pneumonia with ensuing temporary and partial permanent disability and that the exposure constituted an accident arising out of and in the course of the employment. The employer appealed to the Court of Common Pleas of the County of Middlesex. That court reversed. In doing so it conceded that the petitioner contracted pneumonia "by reason of his exposure to the drafts, heat and water, in the course of his employment" but nevertheless determined that there was nothing extraordinary or unusual about the conditions, that the petitioner had not sustained the burden of proof necessary to bring him within the application of the rule stated in Richter v. Du Pont, 118 N.J.L. 404, and that he had not suffered an injury arising out of and in the course of the employment. The rule referred to was stated thus in the Richter case:

"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."

There was proof introduced by the petitioner sufficient to sustain a factual finding as follows: During the first week in February, 1941, petitioner suffered from a common cold because of which he went to his foreman, told the latter of the ailment, got a "pass" to the plant physician, went to the physician, and received from the physician a prescription for the treatment of the cold. Petitioner continued at his work until February 8th, 1941. The work was that of furnace man's helper. It was performed in a drafty building, and it subjected the petitioner to exposure to intense heat from a smelting furnace carrying a high temperature at times reaching 1,200 degrees, alternating with cold drafts upon his

sweating body, and occasionally to the wetting of clothes and feet from the spraying of water on the metal molds. On Saturday, February 8th, petitioner's cold, aggravated by those conditions, developed into pneumonia. He reported to his foreman that he was sick and at the quitting hour went home and to bed. On Monday the plant physician, summoned by a friend of petitioner's family, called on and saw the petitioner, but the latter was already under treatment by his own doctor, and so continued. On May 3d, 1941, on a diagnosis of bilateral tuberculous pleurisy with effusion, acute tonsillitis and catarrhal conjunctivitis, petitioner was admitted to the Roosevelt Hospital, the county tuberculosis institution, at Metuchen, where he remained as a county indigent patient until May 14th, 1942. The fact is however that petitioner did not have, and did not contract, tuberculosis. On October 24th, 1942, petitioner again went to work, not with his former employer, but as a guard at the Carteret Ordinance Motor Reception Park.

On that showing we find that the exposure to alternating extreme heat and chilling cold, and to the intermittent wetting of clothes and feet, was a contributing cause of the pneumonia from which the petitioner suffered, and that those plant conditions constituted a greater exposure than that to which persons generally in the locality were subjected. The case is thus brought within the application of Richter v. Du Pont, supra; affirmed, 119 N.J.L. 427, and Ciocca v. National Sugar Refining Co., 124 Id. 329. We do not understand that the "locality" mentioned in the rule is limited to the interior of the plant or to any particular part of the plant where petitioner was employed. Such demarcation would scarcely serve to distinguish the hazards of the employment from the hazards general to the locality. It is not contended, and could not well be, that persons generally in that locality were exposed to the conditions which we have described. The employer chose to leave the proofs as the petitioner presented them; and inasmuch as the plant conditions are thereby shown to have been a factor in causing the pneumonic condition within the purview of the Ciocca case, and pneumonia induced by the peculiar conditions of the place of work becomes an

injury within the holding in the Richter case, we are brought to the conclusion that the petitioner did suffer an injury arising from and in the course of his employment and that the disability sued for ...


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