"This case is submitted to the court for determination without a jury, upon the pleadings and two stipulations as to facts, and there are no controverted facts to determine. It involves the construction of paragraph 23(f), § 3, P. E. 1919, c. 93, § 9 (Comp. Stat. 1911-1924, Cum. Sup. vol. 2, p. 3885). This statute is a part of what is commonly called the Workmen's Compensation Act, originally enacted as chapter 95, P. L. 1911, and the particular section of that act which is involved in this controversy deals with the right of the employer to reimbursement from the wrongdoer, who caused an injury to an employee, when a settlement is made between the wrongdoer and the employee.
"The admitted facts disclosed by the pleadings and stipulations show that the plaintiff, a corporation of this state, was engaged in building a dock on the Passaic river, and employed in the performance of that work one Chris Olsen. The defendant, a corporation of this state, was engaged in operating a derrick unloading gravel from scows in the Passaic river, which derrick was supported by a tug rest upon the bulkhead, near the place where the plaintiff's employees, and particularly Chris Olsen, were working. About 1:10 p. m., February 11, 1924, the cable on the boom of said derrick belonging to the defendant gave way, and the boom fell, causing the bucket of the derrick to strike plaintiff's employee, Chris Olsen, and throw him to a scow below. As a result of the accident, plaintiff's employee, Chris Olsen, sustained two broken ribs, three fractures of the left leg, and severe contusions of the elbow, as well as a puncture of the lung. Under the laws of New Jersey, known as 'An act prescribing the liability of an employer to make compensation to an employee in the course of employment and establishing an elective schedule of compensation,' approved April 4, 1911, its amendments and supplements, the plaintiff, corporation, became obligated to pay to the said Chris Olsen, its employee, because of the injuries received, a compensation for temporary disability from February 11, 1924, to August 14, 1924, being a period of 26 weeks and 3 days, at the rate of $17 per week, or $449.28. Under the same statute, the plaintiff, corporation, became legally obligated to pay to or on behalf of the employee such medical, surgical, and hospital treatment as was necessary to cure and relieve him of the effect of his injuries, 'and to restore the function of the injured members or organs where such restoration is possible: Provided, however, that the employer shall not be liable to furnish or pay for physicians' or surgeons' services in excess of $50 and in addition to furnish hospital service when necessary in excess of $50, unless the injured person, or the physician who treats him, or any other person on his behalf, shall file a petition with the Workmen's Compensation Bureau, stating the need for such physician's or surgeon's services in excess of $50, as aforesaid, and such hospital service or appliances in excess of $50 as aforesaid, and the Workmen's Compensation Bureau, after investigating the need of the same and giving the employer an opportunity to be heard, shall determine that such physician's and surgeon's treatment and hospital services are or were necessary, and that the fees for the same are reasonable, and shall make an order requiring the employer to pay for or furnish the same.'
"The plaintiff corporation rendered medical service to said employee and expended therefor the sum of $632. Respecting this payment, the parties hereto have entered into a stipulation 'that the sum of $632, representing medical services, etc., was not paid by the plaintiff in this cause as a result of an order by the Workmen's Compensation Bureau.'
"And the parties have also stipulated that this 'sum of $632 representing the medical services rendered was paid direct to the doctors and parties rendering services and did not at any time pass through the hands of the employee or his dependents.'
"On March 9, 1924, pursuant to paragraph (f) of section 23 of the compensation statute, the plaintiff corporation herein served or caused to be served on the defendant a statement of the compensation agreement between itself and its employee, Mr. Olsen, and by virtue of that notice, the plaintiff, under the act, became entitled to receive from the defendant herein, upon the payment of any amount in release by the defendant on account of its liability to the said Chris Olsen, a sum equivalent to the amount of compensation which the plaintiff had theretofore paid to the said Chris Olsen.
"About September 14, 1925, the defendant paid in release of its liability to the said Chris Olsen the sum of $3,000, and did not deduct from said amount, for the benefit of the plaintiff herein, the amount of compensation as indicated on the notice served on said defendant, and has wholly neglected and refused to pay the full amount indicated in said notice served as aforesaid. The plaintiff demands as damages the sum of $1,081.28, together with interest from September 14, 1925, and costs of suit.
"The answer of the defendant admits that the plaintiff is entitled to the sum of $449.28
which covers compensation paid at the rate of $17 a week during temporary and permanent disability from February 11, 1924, to August 14, 1924, but denies that it is liable for the sum of $632, the amount of medical expenses expended in an effort to cure the said Chris Olsen. The contention of the defendant is that the statute does not obligate the defendant to reimburse the plaintiff for such medical services, but only obligates the defendant to reimburse the plaintiff for the weekly payments made during temporary and permanent disability.
"The Compensation Act was originally passed in this state as chapter 95, P. L. 1911. Paragraph 23 of section 3 at that time contained no provision for reimbursement on the part of the employer from the party whose negligence caused the injury to the employee. P. L. 1911, c. 95, p. 144.
"The act was amended, so far as this section is concerned, in 1913. The language of the amended act is the same as the law now stands, so far as this particular section is concerned. P. L. 1913, c. 174, p. 312. Section 23 was amended again by chapter 93, P. L. 1919, and the particular part that is involved in this controversy was then for the first time designated as (f) of section 23 (P. L. 1919, c. 93, p. 212). The language of the section was not changed, however. The section will also be found in volume 2, Comp. Stat 1911-1924, Cum. Sup. p. 3885. The section provides:
"'(f) Where a third person or corporation is liable to the employee or his dependents for an injury or death, the existence of a right of compensation from the employer under this statute shall not operate as a bar to the action of the employee or his dependents, nor be regarded as establishing a measure of damage therein. However, in event that the employee or his dependents shall recover from the said third person or corporation, a sum equivalent to or greater than the total compensation payments for which the employer is liable under this statute, the employer shall be released thereby from the obligation of compensation. If, however, the sum so recovered from the third person or corporation is less than the total of compensation payments, the employer shall be liable only for the difference. The obligation of the employer under this statute to make compensation shall continue until the payment,...
