On appeal from Hudson County Court, Law Division (Workmen's Compensation).
Smalley, Proctor and Haneman. Haneman, J.s.c.
The appellant employer, Real Estate Management, Inc., appeals herein from a judgment entered in the Hudson County Court against it relative to two petitions filed by Rose Atamanik, one in her individual capacity, and the second as administratrix of Max Atamanik, for compensation resulting from injuries sustained by the said Max Atamanik on February 26, 1945, allegedly arising out of and in the course of his employment. One petition seeks the payment of necessary medical bills, etc., during the said Max Atamanik's lifetime, and the other seeks compensation for the dependent widow because of his death.
Rose Atamanik, individually and as administratrix of the estate of Max Atamanik, cross-appeals from said judgment for the reasons that (1) the award was not predicated upon "wages received at the time of the injury"; (2) it made no allowance for interest on payments withheld for temporary disability; (3) the attorney was denied the right to be heard upon the allowance of attorney's fees; (4) the fee allowed the attorney for services rendered before the Workmen's Compensation Bureau and before the Hudson County Court was not reasonable; (5) the sum of $250 for funeral expenses was not allowed, and (6) the motion to open the amended judgment of November 7, 1951 was denied.
The facts in connection herewith are as follows:
Max Atamanik had been employed by Real Estate Management, Inc. for upwards of 15 years prior to his death, as a general porter. Part of his duties was to distribute toilet paper to the various lavatories in the building in which he worked. On February 26, 1945 he was taken to the eighth floor of said building in an elevator, operated by one Joseph Zorowski, with a box of toilet paper. Some 15 minutes later, the elevator operator, as a result of being summoned to the seventh floor by a female employee of one of the offices located in said building on said floor, discovered the said Max Atamanik lying at the foot of a walled-in stairway leading from the seventh to the eighth floor, with the upset box in which he had been carrying the toilet paper, and rolls of said toilet paper, scattered about in the vicinity. In answer to Zorowski's question, "What's the matter?" the said Max Atamanik replied that he had slipped on the stairway. Thereafter the elevator operator lifted him up and sought the aid of the building superintendent, Joseph Aliano. The said superintendent summoned a doctor and produced a chair upon which he sat the porter. An ambulance arrived and removed the decedent to a hospital.
The medical testimony discloses that the said Max Atamanik suffered from an inter-trochanter peri-fracture of the right femur right below the neck. The immediate cause of his death was a complicating pneumonia, and the more remote causes of his death were a toxemia which arose out of a large bedsore that was present during most of the time he was in the hospital. He was dehydrated and the inter-trochanteric fracture was operated on, and subsequently thereto he developed an osteomyelitis at the site of the fracture.
The said Zorowski testified that he had seen Max Atamanik every day during the period of three years that the former had been employed as an elevator operator and had never known him to experience a dizzy spell. He classified him as a "tough man" who * * * "could do anything."
At the time of the original hearing, Joseph Aliano, the manager of the building, as petitioner's witness, testified that when he spoke to Max Atamanik at the location at which the latter was found, and asked him what was wrong, the latter replied, "I am dizzy." This testimony was given on July 29, 1948. For some reason the matter was then continued to July 6, 1949, when Joseph Aliano was called as a witness for Real Estate Management, Inc. He then testified that Max Atamanik said, "I had a dizzy spell and fell." Both Zorowski and Aliano admitted that the decedent was in agony up to the time he was removed to the ambulance and seemed unable to move without assistance.
The sole question involved on the appeal of Real Estate Management, Inc. is whether the injury sustained by Max Atamanik arose out of and in the course of his employment. The appellant contends that the primary cause of the accident was the dizzy spell suffered by the said Max Atamanik upon the stairs, and hence not compensable. The appellant objects to the admission of the statement made by the said Max Atamanik to Joseph Zorowski as to the cause of the accident. If admissible at all, this statement must be part of the res gestae. Appellant strenuously argues that the lapse of time (15 minutes) intervening between the delivery of the decedent to the eighth floor and the discovery of the decedent on the seventh floor is too lengthy to permit the statement to be considered a part of the res gestae. It is to be remembered that the maximum elapsed time was 15 minutes, during which the decedent was not seen by any witness. The decedent had apparently discharged the duties required of him on the eighth floor and then had proceeded down the ...