Am. Radiator Co. v. Rogge

• Decision Date: 05 November 1914
• Citation: 86 N.J.L. 436,92 A. 85
• Parties: AMERICAN RADIATOR CO. v. ROGGE.
• Court: New Jersey Supreme Court

92 A. 85

86 N.J.L. 436

AMERICAN RADIATOR CO.

v. ROGGE.

Supreme Court of New Jersey.

Nov. 5, 1914.

Certiorari to Court of Common Pleas, Union County.

Proceeding by John F. Rogge as administrator, etc., against the American Radiator Company. Judgment for plaintiff, and defendant brings certiorari. Affirmed.

Argued June term, 1914, before SWAYZE, PARKER, and KALISCH, JJ.

Franklin W. Fort, of Newark (Fort & Fort, of Newark, on the brief), for prosecutor.

Abe J. David, of Elizabeth, for defendant.

SWAYZE, J. This is a proceeding under the Workmen's Compensation Act, and raises the very interesting question of the applicability of that act where the contract of hiring was originally made in another state. The original contract in this case was made in New York on April 11, 1911, prior, that is, to the time when the Workmen's Compensation Act took effect. This fact is not important for the reason that the decedent's salary was raised several times, the last on August 1, 1912. The change in salary necessarily made a new contract, which if made in New Jersey would certainly have been governed by the provisions of the act. This new contract also was in fact made in New York. The work the decedent was employed to do was partly in New York and partly in New Jersey; he died in New Jersey as a result of injuries received while about the work he was employed to do in this state. The contention of the prosecutor is that as the relation is contractual, the contract must be governed by the law of New York, where it was made, and as that law at the time contained no provision for compensation, there can be no recovery. We think the answer to the prosecutor's contention is that the right of recovery rests, not upon the New York contract, but upon the New Jersey statute. The liability is indeed contractual in character by force of the very terms of the statute, but it is not the result of an express agreement between the parties; it is an agreement, implied by the law, of a class now coming to be called in the more modern nomenclature of the books "quasi contracts." We find no evidence in this case of any term in the New York contract that prohibits the applicability of the New Jersey statute. If there were, the parties could not, by their agreement, prevent New Jersey from regulating the conduct of its own industries and from prescribing, as one of the terms upon which the performance of a foreign contract of hiring shall be permitted in this state, the implication by law of a contract for compensation to the workman. It is open to the employer under a New York contract to prevent the operation of section 2, if he wishes, by notice; if he fails to give the notice, and undertakes to perform the contract in New Jersey, he voluntarily subjects himself to our law and is governed thereby. The statute states the obligation in terms of the law of evidence; the contract of hiring is presumed to have been made with reference to section 2, and in the absence of express statement or written notice, the parties are presumed to have accepted the provisions of section 2. Rules of evidence are rules of procedure, and procedure by well-settled principles is governed by the law of the forum. This view, it must be confessed, is somewhat technical, and we do not rest on it alone. The real object of the statute was to create an irrebuttable presumption in the absence of express statement or notice, and the creation of a presumption irrebuttable except in these ways, although it may be in form a mere rule of evidence, is in effect a rule of substantive law. As such we deal with it. As we have already said, we find nothing in the New York contract inconsistent with the contract implied by the New Jersey statute. In legal principle the case does not differ from the contract to assume the risks ordinarily incident to the employment that was formerly implied from the contract of hiring. In that case the contract to assume the risk was implied from the employs entering upon the work; in this case it is implied from the employer setting the employe to work in this state. The contract of hiring itself need not in the one case contain any provision upon the assumption of risk, nor in the other any provision upon the assumption of the statutory obligation. We do not believe it has ever been suggested that an employe working in New Jersey under the old law was relieved of the implied assumption of risk, because his contract of hiring might have been made in a jurisdiction where that rule did not prevail. It is true the rule of assumption of risk probably prevailed where the English law was in force, but it prevailed in any case only as long as that rule was recognized by the state where the injury happened. The...