trial is not to be encouraged or commenced. The verdict will not be set aside merely upon such indefinite and uncertain affidavits. The judgment of the district court is affirmed. Cornish and Rose, JJ., not sitting.

In workmen's compensation case for death of employee on towboat carrying interstate commerce, the question of whether the case is within exclusive jurisdiction of federal courts is controlled by federal decisions.

(For other cases, see Courts, Dec. Dig. § 97[5].)

Certiorari to Court of Common Pleas, Union County.

Proceedings under the Workmen's Compensation Act by Rebecca Coon for compensation for death of her husband, Robert Coon, opposed by James Kennedy, trading as Kennedy's Towing Line. Judgment for petitioner, and the employer brings certiorari. Reversed.

Judgment affirmed 103 Atl. 207.

Argued before Swayze, Minturn, and Kalisch, JJ.

Kalisch & Kalisch, of Newark, for prosecutor.
McDermott & Enright, of Jersey City, for respondent.

MINTURN, J. The writ of certiorari brings up the proceedings in a workmen's compensation case in the Union County common pleas, wherein judgment was rendered for petitioner, whose husband lost his life by an accident, as the trial court found, arising out of and in the course of his employment with prosecutor.

The prosecutor is in the towboat business, and is engaged in interstate commerce between New York and New Jersey. He resides in Elizabeth, where he has his office and principal place of business. One of his steam tugs, the Elsie K., was registered in the customs office in Newark pursuant to 7 R. S. U. S. Fed. Stat. Ann. 16, § 4141 (U. S.. Comp. St. § 7719.)

Robert Coon, petitioner's husband, had been employed as fireman on the boat, and was drowned when she foundered while on a voyage from Brooklyn to Elizabeth August 4, 1915. She went down within about 500 feet of New Jersey shore at Constable Hook. The court below found as a fact, and there was evidence to support it, that the tug sank in New Jersey waters, and that the deceased was drowned within the jurisdiction.

* Decisions rendered, Oct. 16, 1917. 106 Atl. Rep. 210.

Since this case was submitted, two causes involving questions of the same general legal import have been decided by the federal Supreme Court. The case of the Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, involved the inquiry whether the the Workmen's Compensation Act of New York was in conflict with article 3, § 2, of the federal Constitution, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction, and article 1, § 8, giving Congress power to make all laws necessary and proper to carry into execution the powers vested in the federal government, and United States Judicial Code, §§ 24 and 256 (Act Cong. March 3, 1911, c. 231, 36 Stat. 1091, 1160 [U. S. Comp. St. §§ 991, 1233]), giving federal District Courts exclusive judicial cognizance of all civil causes of admiralty and maritime jurisdiction, as well as with the general policy of Congress to encourage investments in ships, manifested by various congressional enactments imposing a limitation of liability upon the owners of vessel property.

The majority opinion of a divided court held that such conflict of legislative authority existed, and that the New York act was consequently invalid so far as it attempted to impose liability upon the owner of an ocean-going steamship plying between New York City and the city of Galveston, Tex., for an injury resulting in the death of a longshoreman killed while at work upon the vessel.

This determination would obviously be dispositive of the claim in the case sub judice, since the fact is conceded that the boat upon which this decedent was employed was engaged in interstate commerce between the port of Brooklyn, and the state of New York, and Elizabeth, in this state. But the Southern Pacific Case was followed at the same term of the federal court by Valley Steamship Co. v. Wattawa, and the same company against Mraz, reported in 244 U. S. 202, 37 Sup. Ct. 523, 61 L. Ed. 1084. This later adjudication imposes a practical qualification or limitation upon the general application in practice of the rule declared by the former adjudications to the effect that the claim of exclusive federal jurisdiction will not be recognized as a basis for a writ of error, unless the question shall have been raised in the trial court, and is presented as a basis of appeal, where the state appellate tribunal is circumscribed in its discussion of the case to errors appearing on the record, citing in support of this general rule of practice Mutual Life Insurance Co. v. McGrew, 188 U. S. 291, 23 Sup. Ct. 375, 47 L. Ed. 480, 63 L. R. A. 33.

[1] The general rule of practice in this state relative to matters determinable in this court, and in the Court of Errors and Appeals, has been settled in accordance with the rule promulgated by the federal Supreme Court, with the additional qualification that the rule shall not apply where, as in this case, the question presented is one dealing with the jurisdiction of the court, or the general public policy of the state. State v. Shupe, 88 N. J. Law, 610, 97 Atl. 271.

[2] Obviously, therefore, the question of jurisdiction is involved in this controversy in view of the federal decisions to which we have referred, and under our practice is not eliminated by the failure of the record to present it. The result is that, in reaching a result, our determination must be controlled by the federal decisions referred to, which leads to a reversal of the judgment under review.

SUPREME COURT OF NEW JERSEY.

LUNDY
V.

GEORGE BROWN & CO.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— ACT-EVIDENCE.

Compensation for the death of a servant should not be allowed unless the testimony or circumstances adduced fairly give rise to a reasonable inference that death was attributable to the injuries he received.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].)

--

2. MASTER AND SERVANT — WORKMEN'S ACT-CAUSE OF DEATH-EVIDENCE.

COMPENSATION

In a proceeding under a Workmen's Compensation Act for the death of a servant, it was not essential to the right of recovery that petitioner should establish that the injuries were the proximate cause of death; it being sufficient that they were the producing cause.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].)

3. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-CAUSE OF DEATH-EVIDENCE.

In proceeding under Workmen's Compensation Act to obtain compensation for death of a servant, evidence held to sustain finding that death on February 21, 1918, was caused by injuries received on December 19, 1916, and that peitioner was entitled to compensation.

(For other cases, see Master and Servant, Dec. Dig. § 405 [4].)

Certiorari to Court of Common Pleas, Essex County.

Proceeding under the Workmen's Compensation Act (P. L. 1911, p. 134, as amended by P. L. 1913, p. 309), by Mary Lundy to obtain compensation for the death of Patrick Lundy, her husband, opposed by George Brown & Co., employer. There was an award in favor of petitioner, and the employer brings certiorari. Affirmed.

Argued November term, 1918, before Bergen, Kalisch, and Black, JJ.

M. Casewell Heine, of Newark, for prosecutor.
Edward M. & Runyon Colie, of Newark, for defendant.

KALISCH, J. The single question presented here is whether there was any evidence in the case on review justifying the court below to make a finding that the death of petitioner's decedent was the result of injuries received by him in an accident admitted to have arisen out of. and in the course of his employment.

The prosecutor's contention is that there was no such evidence. The petitioner's husband was injured on December 19, 1916. He died on February 21, 1918, about 14 months after the accident. On December 18, 1917, Patrick Lundy, the petitioner's decedent, had filed his petition for compensation to which the prosecutor, on February 6, 1918, filed its answer. Before the day set for the hearing, Lundy died. On May 15, * Decision rendered, March 18, 1919. 106 Atl. Rep. 362.

1918, Mary Lundy, his widow, filed her petition setting forth that the estate of Patrick Lundy was entitled to compensation from September 17, 1917, to February 21, 1918, the date of his death for his disability during that period as the result of said accident. The petitioner further prayed for compensation for the death of her husband as a result of the accident, according to the fixed schedule of compensatoin in such cases, and for an allowance of $100 for funeral expenses. To this petition the prosecutor filed its answer, on May 15, 1918, in which it denied that the death of petitioner's decedent was caused by an accident arising out of and in the course of his employment. Subsequently by consent in writing of the prosecutor's attorney, an order was entered that the petitioner be admitted as a party petitioner; she having been appointed administratrix of the estate of her husband on August 5, 1918.

The prosecutor's sole contention in the court below was, and now reiterated here is, as follows:

"Mr. Heine: My contention is that the death was due to a rheumatic cardiac disease, which had a secondary or contributing cause in rheumatism. That the cause of death was from a disease in no way connected with the traumatism received as a result in any way from the accident. That is the question, whether the death resulted in any way from the accident."

On that branch of the inquiry, the court below found that as a result of the accident the petitioner's decedent "sustained serious injuries, among other things a fracture of most of the ribs on the left side of his body, and that as the result of said injuries received in said accident he died on February 21, 1918."

It is this finding which counsel of prosecutor contends is not supported by any evidence.

[1] Of course, if the testimony or circumstances adduced do not fairly give rise to a reasonable inference that the death of the decedent was attributable to the injuries he received in the accident, then the award made by the court below on that finding must be reversed.

[2] We think there was evidence which fully justified the finding of the court below on the mooted inquiry. It is true that the medical testimony in the case is in sharp conflict on the question whether the decedent died as a result of his injuries, or from an entirely independent cause. It is not at all surprising to find opinions of medical experts, on the opposite sides of a case, in disagreement on the matter. It was not essential to the petitioner's right to a recovery that she should have established that the fractured ribs were the proximate cause of death. If the injuries were the producing cause, the proof of that fact is sufficient.

[3] On behalf of the petitioner, it was shown that her husband, up to the time of the accident, was a strong healthy, man; that by the accident nearly all his ribs on his left side were fractured; that, though the injured ribs united, the deceased never recovered from the effects of his injury; he became broken down in his general health and went into a steady decline. From December 19, 1916, the date of his injury, until September 17, 1917, he gradually grew weaker, but, at that time, owing to the refusal of further payment to him by the prosecutor, for temporary disability, the decedent was necessitated to seek employment, and after working from October, 1917, until January 1, 1918, he was compelled to relinquish work by reason of his physical inability to continue, and died six weeks thereafter. The petitioner produced a physician who testified that the deceased came to him in October, 1917, and remained under his medical care until January, 1918, and that in his opinion the cause of decedent's death was general tuberculosis; that is, a condition of the disease which affected the entire system without being localized.

This testimony was controverted by the physicians who testified on behalf of the prosecutor that the cause of death of the decedent was not

attributable to an injury, but was due to heart disease, a not unusual result of rheumatism.

We think, however, an inference may be properly drawn from the evidence in the cause that the nature of the decedent's injuries was of such seriousness as to greatly impoverish his system and predispose it to an infection of tuberculosis, of which there was not the slightest indication before the injury. For, according to the testimony, the decedent, before he was injured, was a man in full health and vigor, and immediately after he began to fail and grow weaker, from day to day, without any other apparent cause than from the injuries sustained by him; and if the cause of his death was tuberculosis, general in its character, and which culminated in death in a little over a year, it is difficult to escape the conclusion that the cause of death was an incident resulting from the accident.

And even if we adopted the theory of the prosecutor's counsel that heart disease caused the decedents death, we are still confronted with the situation that a strong, vigorous, hard-working man without any indication of heart disease develops that trouble after a serious injury, as appears in this case, and therefore, it seems to us, that there is a permissible inference that, if heart disease was the proximate cause of the decedents death, it was superinduced by the injury.

While, concededly, the time which elapsed between the date of injury and date of death was sufficiently long for the decedent to have developed or contracted some fatal disease from a wholly independent cause, still, in view of the circumstantial evidence tending to establish an unbroken continuity of physical degeneration of the former vigorous constitution of the decedent, immediately following the injury to the day of his death, we cannot properly say that there was no evidence on which the court could make a finding that the death of the deceased was due to the accident.

The judgment is affirmed, with costs

COURT OF CHANCERY OF NEW JERSEY.

STEEL & IRON MONGERS, INC.

V.

BONNITE INSULATOR CO. (No. 45/670.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-INSOLVENT EMPLOYER-“PREFERENCE."

The preference given by section 22 of the Workmen's Compensation Act (C. S. N. J., 1st Supplement, p. 1638) is, in the case of insolvent corporation, under section 83 of an Act Concerning Corporations (2 C. S. 1910, p. 1650), confined to an amount representing the weekly award for the two months preceding the institution of the proceedings in insolvency. (For other cases, see Master and Servant, Dec. Dig. § 3934.)

(For other definitions, see Words and Phrases, First and Second Series, Preference.)

* Decision rendered, March 5, 1919. 106 Atl. Rep. 380. Syllabus by the Court.