For the petitioner-defendant, Robert H. Wall (Edward A. Markley and Patrick F. McDevitt, of counsel).
For the respondent-prosecutor, James J. Skeffington (Walter A. Beers, of counsel).
Before Justices Case, Bodine and Porter.
The opinion of the court was delivered by
PORTER, J. This case is before us on certiorari to review a judgment of the Hudson County Court of Common Pleas in a compensation issue. The workman, John Magnuson, was employed as a carpenter by George Peterson, Inc., the respondent, and while so employed suffered from general septicemia and cellulitis due to streptococcus infection from which he died about six days after being stricken. He left a widow and two small children.
It is claimed that he was involved in two accidents which arose out of and in the course of his employment. Claim petitions were filed in the Workmen's Compensation Bureau
for each alleged accident. The first petition claimed that on March 31st, 1939, he fell and received an injury to his left shoulder. This accident was reported to the employer, and medical treatment was furnished by it. The injury was a minor one, and the deceased lost no time from work. The Bureau dismissed this petition, and that disposition is not questioned. The second petition claimed an accident on May 18th, 1939, in which it was alleged that Magnuson "got a sliver in his arm which was injured in an accident on March 31st, 1939. Infection resulted in his death." He died on May 24th, 1939. Two questions are in dispute on this claim, first, whether in fact such an accident occurred and second, whether it was reported to the employer or came to its knowledge within the statutory period of ninety days. R.S. 34:15-17. The Deputy Compensation Commissioner who heard the case concluded in a careful review of the testimony that the petitioner had not sustained the burden of proof of an accident or of notice to the employer. In his findings he summarized the testimony as follows:
"The evidence presented was that of the widow and mother, who testified that the petitioner did have this injury to the shoulder, of which there seems to be no question, and on May 19th, the petitioner was complaining of his shoulder. On May 20th, they noted a small pimple on the decedent's elbow, which became infected. From the death certificate and the medical proof, I am satisfied that the death was the result of this infection, causing a virulent steptococcus germ, which caused the petitioner's death.
"The issue in this case is whether this condition was the result of an accident arising out of and in the course of his employment, and I have taken testimony on that point and have carefully considered it.
"From the evidence I am forced to find that the petitioner has not sustained the burden of proving that this infection was the result of an accident in his employment. The entire record is barren of any evidence of an accident wherein the petitioner got a splinter in his elbow. We have the testimony of one Flocksen (Flodstrom), who ...