For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor and Hall. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The plaintiff's decedent, Raymond Dudley, died of a heart attack while an employee of the defendant company. The plaintiff, his widow, instituted an action in tort for wrongful death, and also filed a petition under the Workmen's Compensation Act. The question now presented is whether in the circumstances an action in tort lies, or whether the Workmen's Compensation Act extends its exclusive benefits to the plaintiff for her husband's death, thus barring her action at law.
The testimony for the plaintiff in her tort action revealed the following: Raymond Dudley, 43 years of age, was employed as a truck driver by the defendant Victor Lynn Lines, Inc. For several days prior to February 23, 1955 Dudley was suffering from a cold. When he reported to work at the defendant's terminal in Kearny, New Jersey, on the morning of the 23rd, he complained of his cold to John Funke, the defendant's assistant terminal manager, and requested to be assigned to a route in New Jersey. He had already been assigned, however, to a routine run with a refrigerator truck to the Merchants Refrigerating Company in lower Manhattan, New York City. At the time, Dudley made no complaint to Funke of serious illness or incapacity to perform his ordinary work.
Traffic being heavy, the trip to Manhattan took almost two hours, until about 10:45 A.M. Dudley drove and was accompanied by a helper, Robert Ventura, aged 18. During the trip, Dudley complained to Ventura of not feeling well, but he seemed to Ventura to be functioning normally. Upon
reaching the New York destination, Dudley entered the office of the Merchants Company, where he remained for about 15 minutes. He then emerged and drove his truck around the block a few times, found a parking space at the loading dock, and parked.
At about 11:25 A.M. Dudley again complained to Ventura that he was not feeling well. His arms were stiff, he was sweating and his nose was running. He asked Ventura to call the defendant's terminal and report that he was sick. At about 11:30 A.M. Ventura called and told Funke that Dudley was sick and wanted a relief driver. Ventura testified that Funke "said as soon as he could he would send somebody, he would send them over, and in the meantime for him to sit in the cab and for me to take care of everything, start unloading." Ventura further testified that a few minutes after making the call, he saw Dudley walking around the truck staggering as if he were drunk. Dudley said he had never felt that way before. He sat in the cab of the truck, sweating, and Ventura began to unload. Later Dudley took a short walk.
After a while, Dudley requested Ventura to call the plaintiff, his wife, to ask that she have her brother come to New York and pick him up. The call was made at about 12:15, but the plaintiff was unable to reach her brother. At about 12:30 she called Funke. She testified:
"I told him I had a call from Ray's helper and that Ray was sick and that he wanted me to get my brother, and then I couldn't get my brother so Mr. Funke said he had heard that Ray was sick in New York but for me not to worry and he would get in touch and I call him back later."
At about 1:00 the plaintiff again called Funke. She testified:
"He told me he got in touch with New York -- I don't know with whom -- and that Ray was feeling a little better and he would send help out and get a doctor and for me not to worry, there was a truck somewhere, I don't know, and for me to stay home in case there be another call and not to worry, that they get a doctor."
After his lunch, Ventura continued unloading the truck until 2:00 or 2:30. During that time he was occasionally able to see Dudley in the cab. He looked worse. He was sweating, coughing and spitting, and was restless; "one minute he was lying down and the next minute he was sitting up." But Dudley at no time asked Ventura for aid or medical attention. Sometime between 2:00 and 2:30, Ventura was informed that Dudley had fallen from the cab. An ambulance was called. It arrived at about 2:30 and Dudley was pronounced dead.
A relief driver arrived from the defendant's terminal at 3:00. No doctor had ever been called by Funke. It was only when the plaintiff again called Funke at 4:30 that she was told of her husband's death.
The plaintiff's tort action was instituted in the Superior Court, Law Division, under the New York Decedent Estate Law. (McKinney's Consolidated Laws of New York, c. 13 § 130.) In her complaint she alleged that the defendant negligently failed to furnish medical aid to her deceased husband in his emergent condition, in violation of the "humane instincts" doctrine. She also alleged that the defendant negligently failed to furnish medical aid to her deceased husband which it assumed to furnish. The defendant's answer denied negligence, asserted that Dudley had been guilty of contributory negligence, and also alleged that Dudley's death arose out of and in the course of his employment and was therefore compensable solely under the Workmen's Compensation Act.
At the trial, the testimony for the plaintiff revealed the circumstances of Dudley's death as described above. The plaintiff also introduced expert medical testimony to the effect that the onset of Dudley's heart attack was at about 11:30 A.M., and that it was not work-connected, and that prompt medical aid would probably have prevented his death.
It was assumed below and here that as the alleged tort occurred in New York, the law of that state controlled the negligence action. In the absence of evidence of the law
of New York, the trial judge properly assumed that it was the same as the common law in New Jersey.
At the end of the plaintiff's case, the defendant moved for a judgment of dismissal on the grounds that the action was cognizable only under the Workmen's Compensation Act, and that the plaintiff had not proved either that the defendant negligently failed to satisfy its duty to render or procure emergency medical treatment for Dudley, or that the defendant negligently failed to supply medical aid it had voluntarily assumed to supply.
The trial judge granted the defendant's motion, stating that the Workmen's Compensation Act did not bar the action, but holding that the plaintiff had failed to prove that the defendant had acted negligently. On appeal, the Appellate Division held that Dudley's heart attack was not work-connected, and therefore his death was not within the compensation act. It agreed with the trial court that the plaintiff had not proved that the defendant had negligently failed to provide emergency medical treatment. It reversed the judgment below, however, on the ground that a jury question was presented whether Dudley's death ...