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Szumski v. Dale Boat Yards Inc.

Decided: January 23, 1967.

MABEL SZUMSKI, PETITIONER-APPELLANT,
v.
DALE BOAT YARDS, INC., RESPONDENT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.

Proctor

This is a workmen's compensation case. The Division of Workmen's Compensation determined that it had jurisdiction to hear the claim and awarded dependency benefits to petitioner for the death of her husband. The County Court on its de novo review reached the same conclusions. The Appellate Division reversed the award on two grounds: (1) the Division lacked jurisdiction of the subject matter, and (2) the causal connection between decedent's work and his death was not established by a preponderance of the evidence. Szumski v. Dale Boat Yards, Inc., 90 N.J. Super. 86 (App. Div. 1966). We granted certification. 46 N.J. 426 (1966).

The decedent, Anthony Szumski, was employed by respondent Dale Boat Yards, Inc., a corporation engaged in the maintenance, repair, storage and sale of pleasure boats with a principal location at Bay Head, New Jersey. Decedent reported to work daily at the Bay Head yard. He worked as a general "all around man" doing mechanical repairs, painting, and occasional duties pertaining to the delivery of boats. Except for the summer season all of his work was performed on land. During the summer about ten per cent of his time was spent on the water in connection with the repair or delivery of pleasure craft, and the remaining 90 per cent was spent on land.

On July 26, 1958 decedent was assigned to aid in the delivery of a 26-foot pleasure boat. The boat was in the water at Atlantic Highlands, and decedent was to assist in the loading of the boat onto a trailer for trucking to Bay Head and transshipment from there to Chicago by train. The cradle on the trailer bed was too small for the boat. After telephoning respondent in Bay Head for instructions, decedent and Milton Dunham and Frank Bartilotti, two friends of the owner of the boat, had the boat put back in the water without its

canopy. They planned to run it around Sandy Hook to Bay Head, a distance of some 35 miles.

The three men began the trip shortly after noon. About one and one-half hours later, at a point off Long Branch, the engine stopped. Decedent, a mechanic, tried to get the engine to start. At first he was assisted by one of the other men trying the electric starter, and later he worked alone. To do this he removed the hatch which covered the engine and lay on his stomach with his head and hands in the hold working on the engine. He continued to work on the engine for an extended period of time, roughly 30 minutes to an hour. The engine would fire up and run for a few seconds but failed to catch.

The temperature that afternoon was approximately 85 degree, and in Dunham's words it was "a very humid day." Bartilotti called the day "hot and muggy." Decedent was sweating profusely and asked Dunham for a rag to wipe the perspiration from his face. Bartilotti also noticed the perspiration on decedent.

Decedent complained to Dunham that he was not feeling well and went to lie down on the deck next to Bartilotti. About 20 minutes later Bartilotti observed that decedent was gasping, turning colors, stretching out his hands, and had a heavy discharge of mucus.

About 5:00 P.M. the Coast Guard came to the aid of the disabled boat and towed it ashore at Long Branch. Dr. Jacob Goldberg, the city physician of Long Branch, was called. He examined Szumski and noticed a cherry-red color of the face and an odor of gasoline fumes from the mouth. He pronounced Szumski dead and recommended an autopsy which was not performed. As a result of a telephone conversation with Dr. Goldberg, the county physician listed the cause of death on the death certificate as "Acute Myocardial Infarction."

At the hearing respondent's medical expert, Dr. Lewis, gave his opinion that the most probable cause of death was myocardial infarction. Petitioner's expert, Dr. Goldberg, gave three alternative causes of death: carbon monoxide poisoning,

myocardial infarction, and sun stroke. Thus the medical evidence at the hearing was substantially in agreement as to the cause of death with the death certificate, itself prima facie evidence of ...


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