Breen Iron Works v. Richardson

• Decision Date: 20 July 1935
• Docket Number: No. 237.,237.
• Citation: 180 A. 192
• Parties: BREEN IRON WORKS v. RICHARDSON.
• Court: New Jersey Supreme Court

180 A. 192

BREEN IRON WORKS

v. RICHARDSON.

No. 237.

Supreme Court of New Jersey.

July 20, 1935.

Syllabus by the Court.

A petition in a workmen's compensation case having been dismissed in the presence of and without voiced objection by the attorney for petitioner, and no appeal having ever been taken, over a year later application was made and granted for a reopening of the case because of a then recent decision affording some support to the view that the dismissal had been erroneous. On certiorari, order of reinstatement set aside.

Proceeding under the Workmen's Compensation Act by Robert Richardson, opposed by the Breen Iron Works, employer, wherein upon claimant's death claim was reopened by Grace Richardson. To review an order reopening case in which petition had been dismissed, employer brings certiorari.

Order set aside.

Argued May term, 1935, before PARKER, CASE, and BODINE.

Merritt Lane, of Newark, for prosecutor.

Frank G. Turner, of Newark, for defendant.

PARKER, Justice.

The writ brings up for review an order dated January 15, 1935, by Deputy Commissioner Wegner in a workmen's compensation case. All the five reasons filed by prosecutor are directed to the alleged lack of jurisdiction of the deputy commissioner to make the order. That order amounted to a reopening of a case in which the petition had been dismissed, on the ground that the dismissal, in view of the decision of this court in Federal Leather Co. v. DeRensis, 113 N. J. Law, 235, 174 A. 163, had been erroneously ordered. In other words, the bureau undertook to reinstate the case for rehearing because of the cited decision.

A short sketch of the history of the litigation is needed for a clear understanding of the controversy now before us.

Petitioner is the widow of Robert Richardson, now deceased, who, on March 9, 1931, was employed by prosecutor Breen Iron Works, and claimed to have sustained on that day an accident entitling him to compensation. He filed a petition May 9, 1931, which was answered, and on July 7, the hearing was begun before Deputy Commissioner Stair. Two of Richardson's fellow employees testified to the occurrence and character of the accident. This testimony does not seem to be part of the return to the writ, nor is it mentioned in the stipulation of attorneys, which contains an abstract of Robert Richardson's petition and the answer. However, counsel on both sides refer to it in their briefs, so it may properly be treated as before us in some aspects of the case. The transcript contains no note of any adjournment, and counsel for defendant Grace Richardson claims that the trial "was abandoned."

Continuing the chronology of the case, it may be gathered that the parties opened negotiations for a settlement on the theory that liability, though denied, would probably be found, and with a view of agreeing on the quantum of compensation. Medical examinations were made on both sides, settlement was arranged on the basis of 7 1/2 per cent. disability and medical and counsel fees; and the parties and counsel came before Deputy Commissioner Corbin on September 30, 1931, announcing the settlement "to terminate the case as a complete and final close-out, with the understanding that the man cannot come back and reopen the case at any time," and stating the terms. The petitioner was sworn, and testified to his concurrence in the settlement, and said he was satisfied with it, not to be reopened, however his condition might change. A Doctor Trainor was sworn for petitioner, and testified that 7 1/2 per cent. was a fair settlement. This closed the evidence, the commissioner said that he "approved the settlement," and signed a somewhat lengthy order for judgment, reciting the facts substantially as above, and expressly reciting the testimony of Richardson and Dr. Trainor, and his own finding thereon that the settlement was a fair one, and to the interests of the parties "as a complete and final disposition of the case for all time." Accordingly, he made order for payments as stipulated, and in detail. This order is dated October 3, 1931.

Richardson died July 11, 1933, and on or about August 2, the widow filed a new petition based on the same alleged accident and claiming for her husband's death. The answer set up the previous claim, the settlement and adjudication thereon, and prayed dismissal on the ground of res judicata and the expiration of the period of limitation. This was brought to a hearing on October 3, 1933, just two years after the award in the first case. Petitioner's attorney conceded that the case of Federated Metals Corp. v. Boyko, 168 A. 672, 11 N. J. Misc. 807, affirmed 112 N. J. Law, 87, 170 A. 56, on the opinion of this court was controlling; and the deputy commissioner accordingly dismissed the petition. So far as appears, there was no appeal.

On August 6, 1934, this court decided the case of Federal Leather Co. v. DeRensis, 113 N. J. Law, 235, 174 A. 163, holding that on a petition for enlargement of a previous award, claiming an increase in disability, a compromise award, based on no testimony touching the employment or the injury as growing out of it, created no estoppel to the second petition under the rule in Herbert v. Newark Hardware Co., 107 N. J. Law, 24, 151 A. 502. On November 16, 1934, over a year after the dismissal of the widow's petition, her counsel obtained a rule to show cause why the dismissal should not be opened; and on January 15, 1935, that rule was made absolute by the rule or order particularly called for by the present writ.

The objection is made at the outset that the order of January 15 is interlocutory, and that certiorari should not be awarded until after final judgment. Such is of course the general rule, where the inferior tribunal has jurisdiction of the parties and subject-matter. Mowery v. Camden, 49 N. J. Law, 106, 6 A. 438; Farrow v. Springer, 57 N. J. Law, 353, 31 A. 215; Woolley v. Bell, 69 N. J. Law, 581, 55 A. 66; Palese v. Lane (N. J. Sup.) 95 A. 126; Crawford v. Hendee, 95 N. J. Law, 372, 112 A. 668; Greenhalgh v. McCabe, 165 A. 96, 11...