Burbage v. Lee

• Decision Date: 15 April 1915
• Citation: 87 N.J.L. 36,93 A. 859
• Parties: BURBAGE v. LEE et al.
• Court: New Jersey Supreme Court

93 A. 859

87 N.J.L. 36

BURBAGE

v. LEE et al.

Supreme Court of New Jersey.

April 15, 1915.

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Atlantic County.

Petition by John R. Burbage against Joseph E. Lee and others, trading, etc., to recover compensation under the Workmen's Compensation Act. Judgment for defendants, and petitioner brings certiorari. Reversed and remanded, with directions.

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

James H. Hayes, Jr., of Atlantic City, for prosecutor. Martin E. Keffer, of Atlantic City, for defendants.

PARKER, J. The petitioner was injured by an accident arising out of and in the course of his employment, and the trial court found that in addition to temporary disability there was also the following permanent injury: (1) A fracture and dislocation of the right wrist, resulting in an enlargement which interferes with the use of the wrist and hand. (Petitioner is right-handed and a painter by trade.) (2) A fracture of the small toe of the right foot, which causes it to protrude in an unnatural manner and causes petitioner considerable annoyance. (3) A fracture of the pelvic bone, which has shortened one leg, makes petitioner permanently lame, gives him annoyance and occasional pain, and interferes somewhat with his ability to climb about in his work. Notwithstanding these permanent injuries, the judge allowed recovery only for temporary disability, because he found that petitioner was able to resume his usual calling, and that, in fact, he had resumed it at no reduction in wages.

The refusal to award for permanent disability was erroneous. Upon the same theory as that adopted by the trial judge, if petitioner had suffered amputation of a finger, or a phalanx of one finger, but could earn and was earning the same wages as before the accident, his recovery would be limited to temporary disability to work. But the Legislature has not so enacted the law. The trial judge did not have before him our decision in De Zeng Standard Co. v. Pressey, 92 Atl. 278, decided after the judgment herein; but the reasoning of that decision is applicable to this case. Effect must be given to the clause of the act which provides that:

"In all other cases in this class the compensation shall bear such relation to the amount stated in the * * * schedule as disabilities bear to those produced by the injuries named in the schedule." P. L. 1911, p. 138, par. 11 (c).

This was the statute in force...