Carberry v. Del., L. & W.R. Co.

• Decision Date: 17 November 1919
• Docket Number: No. 39.,39.
• Citation: 108 A. 364
• Parties: CARBERRY v. DELAWARE, L. & W.R. CO.
• Court: New Jersey Supreme Court

108 A. 364

CARBERRY

v. DELAWARE, L. & W.R. CO.

No. 39.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1919.

(Syllabus by the Court.)

Appeal from Supreme Court.

Proceeding by Catherine A. Carberry, administratrix, etc., of Martin T. Carberry, deceased, against the Delaware, Lackawanna & Western Railroad Company to recover compensation under the Workmen's Compensation Act. From an award defendant obtained a review in the Supreme Court, which reversed judgment, and plaintiff appeals. Affirmed.

James H. Bolitho, of Rockaway, for appellant.

Frederic B. Scott, of New York City, for respondent.

TRENCHARD, J. Martin T. Carberry, who was employed as a baggage agent by the Delaware, Lackawanna & Western Railroad Company, was killed on December 21, 1917, at their station at Lake Hopatcong, while in the course of such employment. His administratrix filed a petition in the court of common pleas of the county of Morris to recover compensation for his death under the New Jersey Workmen's Compensation Act, chapter 95, P. L. 1911.

The railroad company filed an answer to the petition denying the application of the New Jersey Workmen's Compensation Act, specifically setting forth that, at the time and place of the injury and death of Carberry, both he and the company were engaged in interstate commerce, and that therefore the petitioner's sole remedy was under the federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. §§ 8657-8665). Upon the hearing the common pleas judge found that "Carberry was engaged in intrastate business at the time of his said injury," and therefore awarded the petitioner the compensation allowed under the New Jersey statute. The company thereupon caused such award to be reviewed in the Supreme Court, and that tribunal, after an examination of the testimony sent up determined that the finding of the common pleas that the decedent was engaged in intrastate commerce had no support in the testimony submitted, but that, on the contrary, the proofs demonstrated that he was theh engaged in interstate commerce. This fact being found by the Supreme Court, the judgment below was reversed upon the ground that the petitioner's only remedy was under the federal statute. The present appeal is from the judgment of the Supreme Court, which we think must be affirmed.

We think there is no merit in the contention of the appellant that it was not open to the Supreme Court, on the record before it, to determine that the decedent at the time of the accident was engaged in interstate commerce.

This contention rests mainly, if not wholly, upon a remark made by the company's attorney at the hearing in the common pleas court, hereinafter quoted. In an effort to confine the proof at the hearing to the issue raised by the pleadings, the attorney admitted that the appellant had been appointed administratrix; that the decedent was killed while in the course of his employment by the company as station baggage agent and the injury and death that ensued was an accident arising out of and in the course of his employment; that at the time he was injured the appellant was wholly dependent upon the decedent for support, and there were certain other persons also dependent upon the decedent for support; that the company had notice of the accident resulting in the death of the decedent; that at the time of the injury, and prior thereto, the said decedent was receiving a certain weekly wage; and that the parties thereto had failed to agree upon the compensation to the petitioner. The company's attorney then stated its contention to be as follows:

"The contention of the respondent in this case has been set out in its answer and is that the petitioner was engaged in interstate commerce at the time of the injury, and that in compliance with the act of Congress, known as the federal Employers' Liability Act, that act is exclusive of all other remedies."

He then made the further statement on which the appellant relies for reversal, that—

"I think that makes a prima facie case on the part of the petitioner without any proof on the part of the petitioner unless she desires to offer any evidence."

Where...