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Seiken v. Todd Dry Dock Inc.

Decided: June 30, 1949.

JACOB GEORGE SEIKEN, PETITIONER-RESPONDENT,
v.
TODD DRY DOCK, INC., RESPONDENT-APPELLANT



On certification to the Appellate Division of the Superior Court.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For affirmance -- Justice Heher. The opinion of the court was delivered by Ackerson, J.

Ackerson

This is a workmen's compensation case. The plaintiff, Jacob George Seiken, filed a claim petition for an alleged injury sustained during his employment with defendant, Todd Dry Dock, Inc. The Workmen's Compensation Bureau dismissed the claim but the Hudson County Court of Common Pleas reversed and awarded petitioner temporary and permanent total disability compensation plus counsel fees.

From this judgment, certiorari to the former Supreme Court was granted on the appellant's application. On September 15, 1948, the cause was automatically transferred to the Appellate Division of the Superior Court, pursuant to the requirements of the new constitution, and has been certified by the new Supreme Court on its own motion as part

of a program of clearing the Appellate dockets before the summer recess, and will be disposed of here as though argued in the Appellate Division.

The meritorious question at issue is whether the petitioner, Jacob George Seiken (known to his fellow workers as George), suffered a compensable injury of traumatic origin by virtue of an "accident arising out of and in the course of his employment" in defendant's shipyard on November 25, 1944. If so the other issues to be considered are whether the employer, Todd Dry Dock, Inc., received timely notice or knowledge thereof as required by law; whether or not permanent disability resulted therefrom, and if it did, the nature and extent of same; and lastly whether the lower court's allowance of counsel fees was excessive.

The factual background may be summarized as follows:

Petitioner, sometimes hereinafter referred to as George, was first employed as a laborer in appellant's shipyard located in Hoboken, in March of 1943 at the age of 34. In this capacity, he did heavy maintenance work in and about the yard and piers keeping them clear of scrap iron and other debris which came from the ships, and unloading keel blocks, pipe, carbide, etc., from freight cars and the like, so that trucks could go down to unload and reload the ships. A few months later, he was made a temporary "snapper" (foreman), and placed in charge of a gang of from six to eight men doing this type of heavy labor in the course of which he was required to work along with them.

The yard itself was divided into two sections. The new yard in the north end was in charge of a permanent snapper named Tony Scarnechia; and the old yard in the south portion in charge of Fred Zahn, also a snapper. Over them in a supervisory capacity was one John F. McGlew. Petitioner normally worked in the north end under Scarnechia, although occasionally he would work in the south yard when assigned there by McGlew.

On the day of the alleged accident, November 25, 1944, petitioner testified that he started his regular work at 7 A.M. with a crew of six men. With two of the men he went on

Pier D, in the south yard under the supervision of Fred Zahn, to remove some scrap iron and other debris that had accumulated there. This work was routine in character and expected of him in the usual performance of his duties. When asked to relate what happened he said that around 9:30 or 10 o'clock that morning he and a co-worker on Pier D were lifting a piece of scrap metal weighing between two hundred and two hundred and fifty pounds on to a baggage truck, and just as he was lifting it petitioner suffered a pain across his heart and in the chest area accompanied by shortness of breath. He said that he then walked to the snapper's locker room, assisted by one of the men in his gang, and there rested his head on a table and collapsed. That a few moments later, Tony Scarnechia came in and seeing petitioner's condition summoned aid from the plant dispensary. A nurse responded and administered first aid after which George was taken to the ...


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