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Fagan v. City of Newark

Decided: February 14, 1963.

KATHERINE H. FAGAN, PETITIONER-APPELLANT,
v.
CITY OF NEWARK, RESPONDENT-RESPONDENT



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

[78 NJSuper Page 297] This case presents the question whether the death from heart attack of a Newark fireman is

proven to have been causally related to his employment so as to justify an award of workmen's compensation. Recovery was allowed in the Division of Workmen's Compensation, but reversed on appeal by the Essex County Court. Important questions of evidence law are presented for consideration.

Decedent Thomas A. Fagan, aged 62 at the time of his death on July 1, 1959, had been a fireman with the City of Newark for many years. For the last six years he had been assigned to a "special services supply company" having the function of delivery of supplies and apparatus to other companies. Older men were generally assigned to this company as it was not ordinarily involved directly in fire-fighting.

On June 29, 1959 Fagan and a co-worker, Bishof, were serving together and alone on the night shift for the stint from 6 P.M. to 8 A.M. About the time the men came to work there was a phone call requesting delivery of a fire extinguisher to Company No. 8. Bishof loaded the fully charged CO[2] extinguisher, weighing about 48 or 49 pounds, on a light delivery truck, along with an eight-pound tarpaulin destined for another company. Fagan drove off to make the deliveries at about 6:05 or 6:10 P.M. and returned about 6:30 or 6:35 P.M. Bishof testified that on return Fagan "was very flushed in the face, and he told me he felt dizzy, and ill, and had hurt himself lifting the CO[2] out of the truck, he told me." Respondent objected after the statement, the latter part of which was not responsive to the question, was completed, but the judge of compensation ruled: "I will allow it." This answer was amplified on cross-examination to indicate Fagan said "he hurt his arm and shoulder and felt dizzy * * * and he was going to lie down." Fagan went up to lie down on a firehouse bed, and when Bishof next saw him, about 10 P.M., he was "resting, asleep, and he was breathing very heavily." During the night he heard Fagan moaning from time to time. When Bishof looked at him in the morning he appeared to be "flushed"; he "didn't look like he usually looked."

When the men reported for work on June 29 Fagan looked "very good" to Bishof. "He was his own jovial self."

Bishof testified that, being the younger man, he usually did the heavier work when he teamed with Fagan on night duty. However, Fagan had on occasion delivered fire extinguishers previously.

Bishof testified it was his duty to record what Fagan had told him when he returned from the delivery in question in a company ledger or "log," and that he did so on this occasion. Chief Kelly of the special services supply company produced the log and read an entry therefrom recorded as made Monday, June 29, 1959, reading: "Fireman Fagan reported that he injured his left shoulder and arm lifting a CO[2] from body of truck. Also that he felt dizzy and was going to lay down for a while." Kelly identified the writing as made by Bishof. He explained: "This is an entry made in the journal, anything happens, and deliveries made, anything unusual that happens." Anyone on duty at the time is required to make such entries. There was no objection to this proof when adduced.

Fireman Leblein, acting captain of Company No. 8 when Fagan delivered the extinguisher, testified that when he noticed Fagan, the extinguisher had already been left on the company floor, at a point about 25 feet from the parked truck. No one had assisted Fagan, none of the other firemen being on the floor at the time. The tailgate of the truck was up, its floor about five feet from the ground. As Fagan left, Leblein asked him, "How do you feel, Harp?" and the response was, "Not so hot." Leblein testified that when Fagan made deliveries to his company the men "always helped him." The explanation, "because we knew he was sick," was stricken by the judge of compensation. There was some other testimony tending to indicate that firemen at companies to which Fagan delivered equipment generally assisted him to unload, inferably because of his age or infirmity.

Fagan's wife, petitioner below, testified that when he returned home at 10 A.M. on June 30 he was nauseous, his face was flushed, and he was having trouble breathing. He ate

no lunch, and complained all day of chest pains and difficulty in breathing. When the symptoms continued, his son took him to the doctor in the evening. He was brought home, the pain increasing and extending into his arm. At 6 A.M. the next morning he fell out of bed. An ambulance physician pronounced him dead shortly thereafter.

Mrs. Fagan testified that Fagan had suffered a heart attack in August 1958. A hospital record of the 1958 episode noted a history of "'clutching' pain in chest on exertion recently," and "severe pain in chest" the evening of admission to the hospital while watching "T.V. fights." The final diagnosis in the hospital record under signature of Dr. Barnert was "myocardial infarction due to arteriosclerotic coronary thrombosis."

Dr. Barnert testified he treated Fagan for a coronary thrombosis sustained in August 1958, and saw him at intervals thereafter. He examined Fagan on the evening of June 30, 1959. There were complaints of chest pain, vomiting and sweating during the day. An electrocardiograph was taken, indicating "a very slightly impaired blood flow to the heart." This showed little change from previous electrocardiographs taken in October 1958 and January 1959 indicating some heart damage, but "nothing active." The doctor advised Fagan to go to the hospital, but he refused. Dr. Barnert's diagnosis on the evening of June 30, 1959 was "myocardial ischemia." The doctor certified the cause of death on the official death certificate as: "Myocardial infarction; arteriosclerotic heart disease." On cross-examination, Dr. Barnert said Fagan gave him no "history of any accident." Mrs. Fagan and her son also testified Fagan had said nothing to them about an accident at work.

Dr. Saul Lieb, a specialist in internal medicine, gave an opinion, based upon a hypothetical question incorporating the substance of the foregoing testimony, including Fagan's statement to Bishof as to hurting his arm and shoulder, that Fagan's death was "related to his work as a fireman." That the witness meant causal relation is clearly indicated by the

explanation he gave for his answer. He said that the effort expended in lifting a 48-49 pound extinguisher from a 5-foot high panel truck and carrying it a distance of 25 feet

"was a competent producing cause initiating the onset of the attack of acute coronary insufficiency when it was superimposed on a preexisting condition of arteriosclerotic heart disease * * *. Considering the subsequent events, it would be my opinion what he considered an injury to the left arm and shoulder and dizziness was actually an indication to him of the onset of the attack of an acute coronary insufficiency. Thereafter the facts in the hypothetical question are those that would indicate there was progression of this attack of acute coronary insufficiency as indicated by the fact that he was found to be breathing hard, looked flushed and thereafter his condition deteriorated the following day as he had to rub his chest and had trouble breathing. He felt nauseous and had to sit by the window until he finally went to Dr. Barnett [ sic ] who found evidence of myocardial ischemia such as found in coronary insufficiency and that his condition progressed until he died the following morning from a myocardial infarction. It is my opinion this attack of acute coronary insufficiency progressed so that it culminated in acute myocardial infarction that caused his death."

Dr. Jack S. York, an internist, also testifying on the basis of a hypothetical question, was called by respondent, and gave an opinion that there was no "causal relationship" between Fagan's occupation and his death. However, the question excluded any mention of the incident concerning the delivery of the fire extinguisher, specifically the statement alleged to have been made by Fagan to Bishof when returning from the delivery mission, or of the sharp difference in Fagan's appearance and condition immediately before and after that mission. But when the facts as to the extinguisher episode and the statement to Bishof were added to the hypothesis on cross-examination and an opinion as to causal relationship requested, Dr. York said:

"I think it is very difficult to say. I think an individual who has mentioned angina as this man, according to the hypothetical question, would not describe an anginal syndrome which might cause pain in the left arm and shoulder as an injury because the characteristic thing about angina is, once the pattern is established of the individual's characterization of pain and the localization of pain so that,

with the history, he had suffered angina before [ sic ]. The only thing I can assume from that is that it was a different type of pain than one would expect from coronary artery involvement or angina."

Upon the hypothesis being further expanded to include the continuity of the symptoms of distress during the night of June 29 and the next day, the doctor said: "Well, the only thing I could state from those additional facts is that the symptoms he presented at 10:00 o'clock the next morning when he came home of nausea and shortness of breath could be associated to his cardiac condition but in essence it does not change my opinion." The doctor ventured the opinion that Fagan "may have pulled a little ligament in his left shoulder and an individual can get flushed from that."

The judge of compensation found, essentially, that the statement said to have been made by Fagan to Bishof was in fact made and was true; that the symptoms described were probably thought by Fagan to have been accidental but were actually anginal and a precursor of the attack the decedent experienced soon thereafter; that it was not customary for Fagan to lift or carry fire extinguishers, but for others to do this for him. He found the hypothesis of probability of causal connection between the decedent's work and the heart accident to have been satisfactorily established.

The Essex County Court on appeal denied credence to Bishof's testimony. While conceding admissibility of the testimony as to Fagan's report to Bishof on the theory of res gestae , the court was "not satisfied that the report was actually made." Particular significance was found in the facts that Fagan told no one else of the "accident" and that Bishof sought no medical aid for Fagan. The testimony as to the past practice of helping Fagan unload was deemed largely "tailored" to a desired result. The court did not refer to the entry in the company log.

From the briefs and argument before us the following issues emerge: (1) was the testimony as to Fagan's statement to Bishof admissible under the res gestae doctrine; (2) was the entry in the company log competent proof of the truth of

the facts recited therein under the Uniform Business Records as Evidence Act, N.J.S. 2A:82-34 to 37; (3) if issues (1) and (2), or either, are answered in the affirmative, is it probable on the whole case (a) that Fagan actually made the indicated complaints to Bishof, and (b) that the work episode was a material factor in causing, contributing to, or accelerating the heart episode and Fagan's consequent death?

Preliminarily, we voice our concurrence with the County Court in its view that the proof of a complaint by Fagan to Bishof of having hurt his arm and shoulder and being ill is basic to petitioner's claim. Without this evidence, the mere fact of delivery by Fagan of a fire extinguisher between the time he left the supply company and returned a half-hour later would not, although considered with the other proofs, in our judgment generate sufficient probative force to justify a conclusion of probable causal relationship between employment and death. Thus, establishment of the competency of either the testimony of Bishof or the log entry is a sine qua non of the claim here contested, both factually and legally. Andricsak v. National Fireproofing Corp. , 3 N.J. 466, 471 (1950); Gilligan v. International Paper Co. , 24 N.J. 230, 236 (1957).

I.

The only facet of the lump-concept " res gestae " pertinent here is that denominated "spontaneous exclamations," 6 Wigmore on Evidence (3 d ed. 1940), § 1745, p. 131 et seq. , sometimes classified as "excited utterances," McCormick, Evidence (1954), § 272, p. 578, et seq.; Andricsak v. National Fireproofing Corp., supra; Atamanik v. Real Estate Management, Inc. , 21 N.J. Super. 357 (App. Div. 1952), and cases cited; Carter v. Public Service Coord. Transport , 47 N.J. Super. 379 (App. Div. 1957). There have been ...


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