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Glanton v. Shafto

Decided: February 16, 1945.


On certiorari to the Monmouth County Court of Common Pleas.

For the prosecutor, Durand, Ivins & Carton (Robert V. Carton, of counsel).

For the defendant, Joseph F. Mattice.

Before Justices Parker and Colie.


The opinion of the court was delivered by

COLIE, J. Certiorari was allowed to review a judgment of the Monmouth County Court of Common Pleas awarding temporary and permanent disability, together with incidental expenses unnecessary to enumerate, to Charles Glanton. The judgment of the Common Pleas was, in effect, an affirmance of a prior award rendered by the Workmen's Compensation Bureau.

The questions which we are called upon to decide are whether petitioner proved that his disability was due to the alleged accident; whether petitioner on December 8th, 1941, sustained an accident arising out of and in the course of his employment and whether petitioner gave the notice required by the statute or, in the alternative, the respondent-employer had actual notice within the prescribed ninety days. Thus it will be seen that the question is one of fact, and our duty is to examine the record, appraise the proofs and determine the fact questions, bearing in mind that while we will not lightly disturb the findings of fact of the lower tribunals, nevertheless we will correct the error where the lower tribunals have found the facts incorrectly. American Cyanamid Co. v. Bortos, 131 N.J.L. 339; affirmed, 132 Id. 327, and cases therein referred to. We therefore proceed to an examination of the proofs.

Charles Glanton was, in December, 1941, employed as handyman and helper in the garage of Joseph A. Shafto. On December 8th, 1941, when "heading up" drums containing fifty gallons of alcohol, the crucial incident took place. Parenthetically, we point out that "heading up" means rolling the drums into the desired place and then standing them on end by raising the other end. It does not mean lifting the drums clear of the floor. While so engaged, he said "I choked right up and my vein came out. * * * I couldn't swallow." He stopped work, sat down and drank a coca-cola, telling the head mechanic "I got something. It might be indigestion the way I choked up." He continued working until about the middle of January, 1942. Then, after talking with his employer, he went to Dr. Samuel Edelson who immediately ordered him to the hospital. Dr. Edelson's deposition reads,

inter alia, that he recalled no history of strain nor did he recall questioning the patient as to strain. Glanton, however, testified that he told Dr. Edelson that while "heading up" drums, the trouble came on him. After spending some nine days in Fitkin Memorial Hospital under observation, he left and tried to resume work but when he "bent over or something that vein come out" and so Dr. Edelson readmitted him to the hospital where he remained for two weeks. Subsequently in July, 1942, the medical staff of Fitkin Memorial referred Glanton to Dr. Charles P. Bailey, a chest surgeon connected with Hahnemann Hospital in Philadelphia. After some ten days at Hahnemann Hospital he was referred back to Fitkin Memorial to undergo a series of bismuth injections for a syphilitic condition preparatory to undergoing an exploratory operation by Dr. Bailey. In October, 1940, more than a year prior to the incident involving the drums of alcohol, Glanton had had occasion to call upon Dr. Joseph G. Villapiano because of pains in the right side of the chest and head, coughs and night sweats. Dr. Villapiano examined by fluoroscope and found that the mediastinum was enlarged on the right side, and there was some cloudiness in the right upper chest near the mediastinum. His diagnosis in 1940 was "myofascitis of the pectoral muscles on the right side and mediastinitis." Mediastinitis is an inflammation of the cell tissue lining the area in the middle of the chest between the pleurae. In October, 1942, Glanton was readmitted to Hahnemann Hospital where Dr. Bailey operated. Following the operation, Dr. Bailey's diagnosis was "thrombosis strain involving the superior vena cava and the azygos vein." The same diagnosis was made by Dr. Oscar V. Batson, professor of anatomy at the medical school of the University of Pennsylvania.

To a hypothetical question as to whether Glanton's present condition was due to the happening on December 8th, 1941, Dr. Bailey answered "I think it is." Dr. Batson said that he would definitely state that the present condition and the incident of December 8th, 1941, was causally related. (The record reads "casually related" but we assume this to be an inadvertent error and moreover the assumption does no harm to prosecutor in view of our findings.)

On behalf of the prosecutor, Dr. A. Wilbur Duryee, a specialist in diseases involving the blood vessels outside of the heart, and Dr. Louis Albright, a specialist in cardiovascular diseases, both gave their opinions that there was no causal connection between the ...

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