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Andricsak v. National Fireproofing Corp.

Decided: January 9, 1950.

CECELIA ANDRICSAK, PETITIONER-RESPONDENT,
v.
NATIONAL FIREPROOFING CORP., RESPONDENT-PETITIONER



On certification to the Superior Court, Appellate Division, whose opinion is reported in 4 N.J. Super. 220.

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

Oliphant

This is a workmen's compensation case in which, on petition by the respondent, certification was granted by this Court to the Appellate Division, under Rule 1:5-2(a).

Petitioner's decedent, George Andricsak, was employed by the appellant as a fireman. His work was performed alone in a tunnel below ground. In tending the fires he used a clinker bar about 7 1/2 feet long and weighing between 30 and 40 pounds. A fellow employee of decedent testified that on March 11, 1947, decedent showed him one of his testicles which was enlarged to about the size of a grapefruit and was black and blue, and that decedent told him "that he hit the bar there." Another fellow employee testified that on March 11th decedent was limping and that he showed him the condition of his testicle.

On the same day decedent reported to his superior, a Mr. Harris, that he had sustained an injury and requested an authorization for medical treatment which was given him and which read in part, "Please render bearer, George Andricsak,

such medical and surgical treatment as may be necessary for injury received March 11, 1947. Subject to Workmen's Compensation Act."

Dr. McCormick, the treating physician to whom decedent was sent by the employer, testified decedent told him "that he was hit on the scrotum by an iron bar" * * * "he was hit at the plant." On the advice of the physician decedent was admitted to a hospital, was operated upon the following day for a hydrocele and died two days later.

Compensation was awarded the petitioner in the Bureau, on appeal that judgment was reversed by the Middlesex County Court and on further appeal that judgment was reversed by the Appellate Division. We granted certification on our own motion.

The sole question for our determination is whether or not an award of compensation may be predicated upon proofs which consist solely of hearsay testimony based upon declarations of a decedent to fellow employees and to an attending physician.

The Appellate Division grounded its opinion on the res gestoe doctrine as exemplified in Hunter v. State, 40 N.J.L. 495, 538 (E. & A. 1878), and as discussed in Robertson v. Hackensack Trust Co., 1 N.J. 304 (Sup. Ct. 1949). It held the declarations were properly admissible and that an accident within the meaning of the statute was thereby established. This was error.

The rationale of those cases does not permit, on the facts of the instant case, the introduction of decedent's statements as part of the res gestoe. While the time elapsing between the act and the declaration is not of itself the controlling feature, the act must be so naturally and strongly connected as to impress upon the statement the element of truth; the declaration must be made without any element of artificiality; it must be made naturally and not too distant in point of time so that by its very quality and texture it tends to disclose the truth.

Here the evidence seems clear that any injury to decedent's scrotum was received, not on ...


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