93 N.J.L. 93 | N.J. | 1919
The opinion of the court was delivered by
PTo question as to the quantum of the award is made in this case, if the fundamental inquiry be affirmatively conceded, that the nature of the loss resulted in a permanent injury within '¡the contemplation of -thle statutle. Pamph. L. 1913, p. 304; Comp. Stat., 1st Supp., p. 1644. As the result of an explosion, while employed in the defendant’s service, and arising out of his employment, the injured defendant lost one of his testicles. The inquiry presented is whether such a loss is equivalent to a permanent bodily impairment.
The statute, section 11, concedes the awax*ded coxxxpensatioxx (1) “where the usefulness of the xixember is permanently unpaired” and (2) “where any physical fuixction is permanently impaired.” The laxxguage of a statxxte designed, as was this, must be of xxecessity in nxany respects generic in verbiage, and, in, this iixstance, while previously having specified particular incidents of disability, partial axxd total, in character, as a basis for compensation, it provides that “in all other cases in this class,” as above indicated, the award shall be made upon the basis of a permanent partial impairment.
It must be manifest that whatever its character as to the individual impairment, the loss in this instance is permanent. Bxxt it is coxxtended that conceding the permanexxcy of the loss, the fuxxctioxxal impairment does xxot follow and medical testimony is invoked to support the argument.
The lower court found that as a result of the injury the defendant’s morale, courage and marital efficiency were lessened. Whatever view medical experts may entertain upoxx that phase of the case, the indispxxtable fact remains that the injured defexxdaxxt has suffered the loss of a portioxx of his
In harmony with these considerations, it has been held that the criterion of a disability, partial in character and permanent in quality, under the statute, is not limited to the loss of earning power. DeZeng Company v. Pressey, 86 N. J. L. 469; affirmed, 88 Id. 382; Burbage v. Lee, 87 Id. 36.
In the recent selective draft, for military service, no little, attention was paid to physical imperfections, which might be deemed to lessen human stamina and individual staying power. Yor can it be denied that in any competition or contest, based upon considerations of the physically perfect specimens of the race, the defendant would be at a disadvantage.
Certain it is that in a state of human excellence man has been in English Literature termed “the paragon of animals,” and one cannot doubt that in our social environment, permeated by the atmosphere of the classics or the renaissance, the defendant would be debarred as a figure for the discriminating chisel of a Phidias, the heroic pen of a Horace, or the exacting brush of a Michael Angelo. Tested by the definition Webster gives to the word, the defendant has suffered an impairment which is. equivalent “to diminish in quality, excellence or strength.” Its Intin root indicates “a making worse, a lessening;” while the Italian derivation “imparare” indicates “a loss or diminution.”
The award will be affirmed, with costs.