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Handleman v. Marwen Stores Corp.

Decided: March 7, 1968.

LENA HANDLEMAN, PETITIONER-RESPONDENT,
v.
MARWEN STORES CORPORATION, D/B/A KAYBEE STORE, AND UNITED STATES CASUALTY COMPANY, RESPONDENT-APPELLANT



Sullivan, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

In this workmen's compensation case Marwen Stores Corporation (Marwen), the employer, and its insurance carrier appeal from the County Court which entered judgment in favor of petitioner and reversed a determination of the Division of Workmen's Compensation dismissing petitioner's widow dependency claim.

Preliminarily, we find petitioner's contention that this appeal was not filed in time to be without merit. Since the retroactive filing notation on the judgment was not made pursuant to court order, we hold that the judgment was

entered on September 13, 1967, the date upon which it was physically recorded on the clerk's docket. Thus the notice of appeal, filed on October 3, 1967, was timely.

Harry Handleman, petitioner's deceased husband, aged 68 at the time of his death, for some time had been employed by Marwen as a collector. On February 1, 1966, while engaging in his collection activities, decedent was struck by a motor vehicle as he was getting into his automobile on Hillside Avenue, Newark. The other vehicle struck the driver's door, allegedly causing the decedent's legs to be pinned between the door and the sill of his own car. After the accident decedent drove to the Newark City Hospital where he was treated for bruised legs, given medication for pain and released. He returned to work the next day and continued to work until February 5, 1966, the day before his death.

On the evening of February 6, 1966, at or about 7:30, decedent visited the apartments of Rosa Price and her downstairs neighbor Garfield Johnson, allegedly to make collections. He remained at the Price apartment until 11 P.M., playing gin rummy with her children. Shortly after he left the Price apartment, he was found lying on the floor of the furnace room of the apartment house by Johnson. At that time decedent's face was purple "and getting darker," and Johnson could not find any sign of a pulse or heartbeat. The emergency police squad was called and Handleman pronounced dead.

Petitioner's medical expert, Dr. Murray Pine, a general practitioner for about 4 1/2 years, testified in response to a hypothetical question that decedent's death was caused by a "pulmonary thrombus formation" ("pulmonary embolism") as a result of a blow to his legs sustained in the February 1 accident.

The employer disputed this theory. The death certificate, signed by Assistant County Medical Examiner Dr. Thomas A. Santoro and based upon his postmortem examination of Handleman, stated that the cause of death was an "occlusive coronary arteriosclerosis." Marwen's expert, Dr. Jack S.

York, a specialist in internal medicine, in response to a hypothetical question testified that Handleman's death was caused by an "acute coronary occlusion" not related to the February 1 accident. York's conclusions were in large part based upon Santoro's testimony regarding the postmortem examination.

The Division dismissed the petition. The compensation judge characterized the medical testimony as "absolutely opposing" but felt that the employer's theory was the more logical. He concluded that the employer had demonstrated that the death was unrelated to the accident of February 1.

Petitioner appealed to the County Court. After reviewing the record the trial judge felt that the conflicting medical evidence adduced in the Division "did not sufficiently yield to analysis" and that additional medical testimony was therefore mandatory if the issues were to be resolved harmoniously with the aims of justice. He indicated that he would adopt a procedure under R.R. 4:25A and engage a cardiovascular specialist to testify as an impartial expert. The judge stated he would prepare and submit a hypothetical question to the specialist and then allow both attorneys cross-examination. He justified that proposal, upon the following grounds among others: the ...


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