Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D. Freund, J.A.D. (dissenting).
Respondent company appeals from a judgment of the Morris County Court affirming an award by the Workmen's Compensation Division.
This matter has been twice before our Supreme Court, sub nom. Gilligan v. International Paper Co. , 21 N.J. 557 (1956), 24 N.J. 230 (1957), and on each occasion was remanded for the taking of further proof.
The facts are fully detailed in the prior opinions in the Supreme Court. No need will be served by a further detailed factual recital. We adopt and incorporate by reference such factual background set forth in the Supreme Court opinion. It suffices, for purposes of the present appeal, to repeat that petitioner seeks compensation for the death of Walter W. Gilligan, who, on June 25, 1953, was found unconscious at his place of employment and subsequently, on July 28, 1953, died from the results of a ruptured congenital mycotic cerebral aneurysm. Petitioner is decedent's widow, since remarried. She originally contended that her husband's death was the direct result of a coughing spell caused by the inhalation of dust which arose from the performance of the duties of his employment while loading a starch adhesive machine with the contents of heavy bags of cornstarch, borax and flake caustics. There was no eyewitness to decedent's collapse. The sole testimony linking the employment to decedent's collapse and demise came from Dr. Stellar, a physician who treated decedent at St. Joseph's Hospital. In that connection the Supreme Court said (24 N.J. at page 235):
"There still remains, however, the troublesome issue of whether the appellant has satisfactorily carried the burden of establishing that the decedent had actually inhaled dust which had induced coughing and which in turn had brought on the rupture of the cerebral aneurysm."
And again (24 N.J. at page 238):
"The St. Joseph's Hospital record expressly set forth in Dr. Stellar's handwriting, that there had been a sudden onset 36 hours
ago when coughing dust at place of work,' but we do not know where Dr. Stellar received his information or the attendant circumstances. His direct examination indicated that he had obtained it from the decedent, but his cross-examination indicated that it may well have come from other sources. It seems to us that this important issue should not be permitted to remain in doubt; it may be clarified by having the Division take additional testimony and make appropriate findings thereon. Dr. Stellar should be carefully examined as to the source of his information and the circumstances under which it was received, and the parties should have full opportunity to introduce before the Division any additional testimony which may shed further light as to whether there was a causal connection between the decedent's work and his collapse at the respondent's plant on the morning of June 25, 1953."
As a result of the remand, additional testimony was taken before the Workmen's Compensation Division. The Deputy Director found, after hearing the testimony, that Dr. Stellar received the history in question from decedent. He made the following formal finding:
"The petitioner's husband was in the employ of the respondent on June 26, 1953, on which date he sustained personal injury as the result of an accident arising out of and in the course of his employment, and died as the result of said accident on July 28, 1953. The accident and injury occurred as follows:
'While working on a starch machine, inhaled dust from the ingredients used in said starch machine, which dust caused a coughing spell, and deceased sustained a ruptured aneurysm.'"
Upon appeal the County Court affirmed.
At the hearing of the case under the remand petitioner sought to establish an alternative theory for the decedent's collapse -- that it was due to the physical exertion of lifting the heavy bags. For this purpose she posed a hypothetical question to Dr. Stellar and sought thereby the physician's opinion on the probability that the rupture of the aneurysm resulted from decedent's physical exertion attendant upon the loading of the mixing machine with the bags of cornstarch, borax and caustic; the carrying of the empty starch bags to a baler, the baling of them; and the cleaning of the platform with a broom. Respondent objected to the question on the ground that it presented a new theory and
one outside the scope of the remand. The Deputy Director, however, permitted Dr. Stellar to answer. Petitioner now urges this theory as an additional ground for recovery.
Respondent urges, inter alia , that (1) the testimony does not sustain the hypothesis that the decedent died as a result of coughing dust at his place of work; (2) the remand limited the proof to petitioner's original theory; and (3) in any event the testimony does not sustain the alternative hypothesis proffered that the decedent died as a result of exertion attendant upon the discharge of the duties of his employment.
Petitioner's primary hypothesis in the prior hearing and appeals, as well as in the present matter, is that the dust which arose from the component materials of the mix during the prosecution of decedent's assigned duties caused him to cough and the coughing induced a rupture of the aneurysm which, eventually, caused his death. This is essentially what the Deputy Director found after the present hearing. He said this, in the colloquy which followed the presentation of the case:
"* * * from the proof then submitted in this record now, through the testimony of Dr. Stellar and the hospital records itself and of the conclusions the Doctor drew therefrom as to the way it had been made up as I have already gone over, I will find that there was a coughing episode immediately preceding the decedent's collapse. And we have in the record evidence as to the dusty nature of the materials he handled, that was put in before, which I think would be a logical cause for this coughing episode, and of course, therewith establishment of his employment as the cause of his death."
The sole proof relied upon to link the accident to the employment, upon the basis of the alleged coughing episode, is the testimony of Dr. Stellar. He testified, not from his personal knowledge of the cause for decedent's condition, but from a memorandum which he wrote into
the hospital records and in which is summarized a statement allegedly made by the deceased to him. Testimony such as this is admittedly hearsay. If, however, the proffered proof satisfies the tests of trustworthiness and necessity, it may be admissible in evidence under the so-called exceptions to the hearsay rule, either as a part of the res gestae, Gilligan v. International Paper Co., supra (24 N.J. at pages 236-237) and cases there cited, or as information given a treating physician by his patient which is relevant to the physician's diagnosis or treatment, Gilligan, supra (24 N.J. at page 237); Bober v. Independent Plating Corporation , 28 N.J. 160 (1958). Such statements, to be admissible at all, must come from the mouth of the patient. State v. Gedicke , 43 N.J.L. 86 (Sup. Ct. 1881); Consolidated Traction Co. v. Lambertson , 60 N.J.L. 452 (E. & A. 1897).
The problem which confronted petitioner on the prior hearing was that it had not been established that the decedent was the source of Dr. Stellar's information incorporated by him into the reference in the hospital records to the coughing of dust. That problem remains with her on the present state of the case.
Recall, that on June 25, at about 8:00 o'clock A.M. decedent was found unconscious on the floor at his employer's plant, about 25 feet from the machine at which he had been working. He was taken immediately to All Souls Hospital at Morristown where he was attended by a Dr. Breuder. He remained unconscious and on June 26, the day following, he was transferred by ambulance to St. Joseph's Hospital at Paterson. He was admitted to St. Joseph's at about 1:00 o'clock P.M. While there decedent was under the care of Dr. Stellar, who was his treating physician. Dr. Stellar had no independent recollection of the matters which transpired during the progress of decedent's case. His testimony is based upon the written history of the case which he used and relied upon, not for the purpose of refreshing his recollection of the events, but,
as a memorial of what actually occurred during his superintendency of the case.
The pertinent sections of the case history, which is in the form of the hospital record, were written by Dr. Stellar and two nurses who attended decedent on June 26th. The "Personal History" sheet is entirely in Dr. Stellar's handwriting. It has two columns. One section of the first column is headed "Chief Complaint," etc. The other column on the same sheet is headed "Past History," etc. Under the "Chief Complaint" column appears the following:
"Referred by transfer from All Soul's Hosp. on subarachnoid hemorrhage.
Sudden onset 36 hours ago when coughing dust at place of work, of coma.
Bloody spinal fluid found at All Soul's.
Incontinent, comatose but thrashing about, moving all limbs, opening eyes at times since admission here."
The second and fourth sentences are the key to the case. Dr. Stellar testified that he arrived at the hospital and first saw the decedent at about 4:00 o'clock P.M. He deduces this fact from the "remarks" written by one of the nurses on another sheet of the hospital record entitled "Nurse's Record." He reasons also that the decedent gave him the "coughing dust" statement, not at about 4:00 o'clock P.M. because the patient was then "* * * barely able to respond to his name and could barely move around. But within an hour or two thereafter [when] he was able to talk coherently * * *." For this conclusion he relied, not on his contemporaneous writings or upon his recollection of the fact, but upon a note in the nurses' record which indicates that at about 6:30 o'clock P.M. the patient responded to a question asked of him by the nurse. He reasons, too, that the decedent was the person who gave him this vital information because the writing in the "Personal History" sheet does not disclose that it came from someone other than the decedent, which, he testified, would be noted there if such were the case. It is conceded, however,
that the sentences which surround the pertinent one were not given by the decedent and there is no source note for those statements. The writing under the "Past History" column of that same sheet discloses that the information on past history came from the widow of decedent. However, the doctor has no independent recollection of the source of that information or the time when it was given. He could not say whether it preceded or succeeded his receipt of the information reflected under "Chief Complaint." The doctor has no independent recollection of the time when decedent first regained consciousness or how soon thereafter it was that he saw decedent, nor does the hospital record disclose that he saw decedent on June 26 after about 4:00 o'clock P.M. The important cross-examination of the doctor follows:
"Q. The fact that the hospital record in the personal history does not say from whom the source of the chief complaint aspect of the history -- * * *
Q. (continuing) causes you to believe that you got that history from the decedent, isn't that so?
The Witness: I would answer that by saying that I am testifying from the hospital record because of the fact that it is four plus years and I cannot recall the details, so that I am using the hospital record and which includes your reading from it.
Q. At the present time you have no recollection of from whom you got that history? A. No, I can't recall it as a memory.
Q. I believe you testified on direct examination one of the reasons, at least, that you believe now that the history came from the decedent was that under the chief complaint portion of P-3, under personal history, there was no notation that it came from anybody else, isn't that so? A. That's right.
Q. Now, was there anything else upon P-3 which strengthens your recollection or in any way affects your recollection as to the source ...