Flynn v. Union City

• Decision Date: 15 October 1954
• Docket Number: No. A--601,A--601
• Citation: 108 A.2d 629,32 N.J.Super. 518
• Parties: Eugene FLYNN, petitioner-appellant, v. UNION CITY, respondent-respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 518

32 N.J.Super. 518

108 A.2d 629

Eugene FLYNN, petitioner-appellant, v. UNION CITY, respondent-respondent.

No. A--601.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 27, 1954.

Decided Oct. 15, 1954.

Joseph L. Freiman, Union City, argued the cause for the petitioner-appellant.

Cyril J. McCauley, Union City, argued the cause for the respondent.

Charles I. Levine, Deputy Atty. Gen., attorney for intervenor, State of New Jersey, argued for the State (Grover C. Richman, Jr., Atty. Gen., attorney; Charles J. Kehoe, Deputy Atty. Gen., on the brief).

Before Judges EASTWOOD, GOLDMANN and SCHETTINO.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The petitioner, Eugene Flynn, a paid fireman in the employ of the City of Union City, suffered injuries sustained in a fire on April 4, 1952. He filed a petition for workmen's compensation and prior to adjudication of his claim, on the application of the city, he was retired on pension by reason of his disability from the injuries suffered in the aforementioned accident. Thereafter, at the adjourned hearing date, on motion of the respondent, Flynn's petition was dismissed on the ground that R.S. 34:15--43, N.J.S.A., barred recovery under the Workmen's Compensation Act in that he had been retired on a disability pension. On appeal to the Hudson County Court the action of the deputy director was affirmed, 30 N.J.Super. 467, 105 A.2d 34, and it is from this judgment that the plaintiff appeals.

The plaintiff contends that he was not a former employee within the meaning of R.S. 34:15--43, N.J.S.A.; that he had a vested right in compensation payments as of the date of the accident and that if R.S. 34:15--43, N.J.S.A., operates to bar his recovery, it is unconstitutional in that it takes away his vested right without due process of law.

The State has applied for and was granted permission under the rules to argue as intervenor in support of the constitutionality of the statute.

The pertinent parts of R.S. 34:15--43, N.J.S.A., provide 'Every employee of the State, county, municipality or any board or commission, or any other governing body, including boards of education, and also each and every active volunteer fireman doing public fire duty and also each and every active volunteer, first aid or rescue squad worker doing public first aid or rescue duty under the control or supervision of any commission, council or any other governing body * * * who may be injured in line of duty shall be compensated under and by virtue of the provisions of this article and article two of this chapter (sections 34:15--7 et seq.). No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability; * * *.'

The substance of this exclusionary feature has been in the Workmen's Compensation Act continuously since 1931, and has been recognized and followed by our courts.

In the case of DeLorenzo v. Board of Com'rs of City of Newark, 134 N.J.L. 7, 9, 45 A.2d 686, 687 (E. & A. 1946), the status of the petitioner was found to be significant, wherein it stated:

'We distinguish between the status of a person receiving a pension and a person receiving workmen's compensation. The relationship of an employer and an employee is not consistent with the position of a pensioner as such, for the reason that a pensioner severs all relationship of employer and employee, he has no further duty to his employer nor is he entitled to any of the benefits which may accrue to an employee. An employee receiving workmen's compensation is under the relationship of employee and employer, as is indicated by the fact that such employee must continue to be carried on the public payroll pursuant to R.S. 34:15--44, N.J.S.A. The plaintiff must be one or the other and as he admittedly now receives workmen's compensation he is an employee. We therefore hold that the plaintiff cannot have the benefits of both statutes. Judson v. Newark Board of Works Pension Association, 132 N.J.L. 106, 39 A.2d 33, affirmed 133 N.J.L. 28, 42 A.2d 289.'

In the case of Reinhold v. Town of Irvington, 134 N.J.L. 416, 48 A.2d 641 (Sup.Ct.1946), the plaintiff sustained injury and prior to his hearing on a workmen's compensation claim, was placed on pension by the municipality, which pension status was held a bar to payment on his workmen's compensation claim. He contended, as does the petitioner in the matter Sub judice, that his status was to be determined as of the date of the injury complained of, in measuring his qualification for workmen's compensation benefits. The court denied the petitioner's contentions, stating 134 N.J.L. at page 418, 48 A.2d at page 642:

'It is contended by the prosecutor that his status and his rights are fixed as of the time of the accident, or accidents, and that at the time of the accidents he was not a 'former employee' and therefore not subject to the provision in question. We think this cannot be so because a 'former employee' at the time of the accident would be in no position to claim compensation at all. A compensable injury must be suffered in the 'line of duty' and a former employee would have no duties to perform, being no longer an active employee in the performance of duties. The section clearly contemplates public employees who suffer injuries in the line of duty, accept retirement or pension benefits based upon such injuries, and then may also claim the coverage of the compensation act. The statute appears to have been designed to meet the situation presented in this case, and is a bar to recovery by prosecutor.'

Our former Court of Errors and Appeals considered the prohibition against double payments as contained in R.S. 34:15--43, N.J.S.A. in the case of Breheny v. Essex County, 136 N.J.L. 524, 57 A.2d 26 (1948), wherein it stated, 136 N.J.L. at page 525, 57 A.2d at page 27:

'There can be no question but that a pensioner is not entitled to an award for compensation. The Workmen's Compensation Act in R.S. 34:15--43, N.J.S.A., provides 'Nor shall any former employee who...