Jayson v. Pa. R. Co.

• Decision Date: 19 January 1925
• Docket Number: No. 76.,76.
• Citation: 127 A. 169
• Parties: JAYSON v. PENNSYLVANIA R. CO.
• Court: New Jersey Supreme Court

127 A. 169

JAYSON

v. PENNSYLVANIA R. CO.

No. 76.

Court of Errors and Appeals of New Jersey.

Jan. 19, 1925.

(Syllabus by the Court.)

Appeal from Supreme Court.

Proceedings before the Workmen's Compensation Bureau by Fred E. Jayson, claimant, for compensation for injuries, opposed by the Pennsylvania Railroad Company, employer. The deputy commissioner dismissed the petition, and, on claimant's appeal, the court of common pleas reversed his ruling, and made an award which the Supreme Court on certiorari affirmed, and from that judgment, the employer appeals. Reversed, and case remitted to Workmen's Compensation Bureau.

Wall, Haight, Carey & Hartpence, of Jersey City, for appellant.

Press & Press, of Newark (Samuel Press, of Newark, of counsel), for respondent.

KATZENBACH, J. Fred E. Jayson was employed as a mechanic by the Pennsylvania Railroad Company at its car shops at Kearney, N. J. On May 23, 1923, he was repairing a platform of a car. While thus engaged the head of a spike which he was driving flew off, striking him in the left eye. He continued to work at the shops until June 30, 1923. The sight of his left eye was impaired by the injury. Jayson filed a petition for compensation with the Workmen's Compensation Bureau. An informal hearing was had upon the petition. At the conclusion of the petitioner's testimony, a motion was made by the Railroad Company that the petition be dismissed on the ground that no evidence had been produced to prove that at the time of the accident Jayson was engaged in intrastate commerce. Upon this motion decision was reserved. The respondent, the Railroad Company, then put upon the stand a witness by the name of Erickson, who was a gang foreman in the Kearney shops. He testified that all kinds of freight cars were repaired at the Kearney shops, including cars from foreign roads, loaded cars, and ears destined for points outside of New Jersey. The respondent then renewed its motion. The deputy commissioner before whom the informal hearing was had then dismissed the petition. In the formal determination made by the deputy commissioner he stated that the petitioner had failed to prove that he was engaged in intrastate commerce at the time of the alleged accident.

The determination cited to support its decision is the case of Carberry v. D., L. & W. R. R. Co., 93 N. J. Law, 414, 108 A. 364, in which it was held that the burden was upon the petitioner to prove a case within the statute, and to show affirmatively that at the time of the accident he was not engaged in a service not regulated by the Federal Employers' Liability Act of April 22, 1908 (U. S. Comp. St. §§ 8657-8665). Jayson appealed the determination of the Compensation Bureau to the Essex county court of common pleas and that court, upon the authority of the case of Herzog v. Hines, Director General, 95 N. J. Law, 98, 112 A. 315, held that a car repairer, injured while working on a car which is out of use for the purpose of having the repairs made, is not engaged in interstate commerce, and reversed the ruling of the Compensation Bureau as rendered by the deputy commissioner in this respect. The court then proceeded to determine the compensation to which it thought the petitioner was entitled, instead of sending the case back to the Compensation Bureau for a hearing upon the merits as the Railroad Company contended should be done. The court allowed Jayson for temporary compensation $102, and also 80 per cent. disability of the left eye, amounting to the further sum of $960. Judgment for these sums was entered. The Railroad Company then obtained a writ of certiorari taking the case to the Supreme Court for review. The Supreme Court affirmed the judgment of the Essex county court of common pleas.

The Railroad Company has now appealed the judgment of the Supreme Court to this court. The appellant contends that the evidence shows that Jayson was engaged at the time of his injury in interstate commerce, but considers this feature of the case of minor importance to which it deems its principal grievance, the failure of both the court of common pleas and the Supreme Court to remand the case to the Compensation Bureau to be heard upon its merits. The appellant contends that no opportunity was ever afforded to it to be heard upon the merits of the controversy, that is, the nature and extent of the injury, whether temporary or permanent, when and how it occurred, and whether it arose in the course of and out of the employment of the respondent.

We think the court of common pleas and the Supreme Court decided the question of the character of the commerce in which the respondent in this...