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Franck v. Armour & Co.

Decided: July 22, 1952.


McGeehan, Jayne and Goldmann. The opinion of the court was delivered by McGeehan, S.j.a.d.


John E. Franck sought workmen's compensation benefits under R.S. 34:15-12(x), as amended L. 1945, c. 74, ยง 5, for what is commonly known as a five-point hernia, as distinguished from a traumatic hernia. His petition was dismissed in the Division of Workmen's Compensation and on appeal the Bergen County Court affirmed.

The statute in effect at the time (above) provided that a non-traumatic hernia was not compensable unless the employee established by preponderant proof

"that the hernia was immediately caused by such sudden effort or severe strain that, first, the descent of the hernia immediately followed the cause; second, that there was severe pain in the hernial region; third, that there was such prostration that the employee

was compelled to cease work immediately; fourth, that the above facts were of such severity that the same was noticed by the claimant and communicated to the employer within twenty-four hours after the occurrence of the hernia * * *; fifth, that there was such physical distress that the attendance of a licensed physician was required within twenty-four hours after the occurrence of the hernia."

Franck was employed to drive a truck and to deliver meats, and he worked without any helper. His testimony was that on February 13, 1950, at about 2:30 P.M., he arrived in a 1 1/2-ton Ford truck at the Grand Union store in Tenafly to make a delivery of four cases of pork, each case weighing about 115 pounds, and a few small pieces of meat. He picked up the first case of pork, put it on his shoulder, and as he turned toward the store, he slipped on the snow and slush on the ground. He fell on his buttocks and the case of pork fell on him, striking him in the stomach on the right side and knocking the wind out of him. He sat there for two or three minutes, and when he tried to get up he felt a sharp pain in his side. On rubbing his side he felt "a little bit of a lump." After he arose, he walked about for five to eight minutes, then picked up the case which he had dropped and carried it into the store, which was about 20 feet distant. He completed the delivery, but felt a sharp pain each time he picked up a case. From the Grand Union store, he drove about three and one-half miles to another store, where he delivered 50 cases of dog food, each case weighing 55 pounds, but in this delivery he merely pushed the cases from the front of the truck to the rear and an employee of the customer took off the cases. Next, he travelled about three-quarters of a mile and delivered two lambs, each weighing 38 pounds, carrying them about ten feet from the curbstone to the store. He then drove his truck to the company's garage, arriving there about 4:15 P.M. Closing time was 4 P.M. and all the other employees had already gone home. In connection with his driving of the truck after the accident, he said: "When I put my foot on the brake I would had to lift my foot up with my hands like I couldn't lift it up with its own

power." He reported back to work about seven o'clock on the following morning, and shortly thereafter saw Mr. Zock, the company manager, and told him about the accident on the previous afternoon. Following Mr. Zock's instructions, he went directly to see Dr. Finke, the company doctor. Dr. Finke examined him at 9:15 A.M. and told him he was ruptured.

Dr. Finke, a witness for the employer, testified that he examined Franck at 9:15 A.M. on February 14 and found a "right inguinal hernia with a definite mass there" and so informed the employer. In answer to a hypothetical question embodying the facts contained in Franck's testimony, he stated that the hernia he found on February 14 was causally related with the accident of February 13.

The entire defense consisted of an attempt to discredit Franck's testimony by the contents of two statements given by him; one to Dr. Finke at the time of the examination of February 14 and the other to a company investigator on February 27, two weeks after the accident.

The statement taken by Dr. Finke reads:

"On February 13, 1950, about 2:30 in the afternoon he was delivering pork weighing about 115 pounds, when he slipped on the snow and struck his buttocks. Soon after lifting another box he felt a pain in the right groin. He did not think same was severe at the time. He went on to Englewood, New Jersey, and finished up his work and went home. The pain in the groin at this time was not severe. The next morning he got up to go to work when he felt pain in the right groin and noticed he had a mass in the ...

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