Purcell v. International Motor Co.

The judgment under review herein should be affirmed, for ’the reasons expressed in the opinion delivered by Mr. Justice Bergen in the Supreme Court.

(dissenting). The award rests on a finding of permanent injury to the eyesight which, in my judgment, is not supported by any evidence in this case.

At the trial both sides rested without .any testimony of the permanent character of the injury. Petitioner had not *711lost either eye, and claimed only impairment of vision. The conit called attention to lack of evidence of permanency of impairment, and petitioner recalled an expert previously examined, who declined to give any opinion that it was permanent; and an examination of the whole of his testimony malees it clear that he considered the petitioner a malingerer, lie said in substance that injuries of that character were sometimes permanent, but usually not. Further he would not go. The court, in deciding the case, said that as the injury was not shown to be temporary ho must conclude that it was permanent.

This manifestly reversed the burden of proof. I take it for granted that in a workmen’s compensation case the petitioner must bear the burden imposed on other plaintiffs who seek to deprive defendant of money or property by a claim' of damages, of proving the amount of damages to which he was entitled.

Of course, if he has lost an arm, or a leg, or an eye, the situation itself speaks, because we know the missing member will not grow again. But when the injury is not claimed to he more than a functional impairment of vision, the court must depend on the knowledge and experience of experts, and if no expert testimony points to permanent impairment, the court should not assume it.

T think the judgment should he reversed.

For affirmance — The Chancellor, Garrison, Swayze, Minturn, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 10.

For re vernal — Trenchard, Parker, Kalisch, JJ. 3.