Luszcs v. Seaboard By-Products Co.
| Decision Date | 19 January 1925 |
| Docket Number | No. 91.,91. |
| Citation | 127 A. 212 |
| Parties | LUSZCS v. SEABOARD BY-PRODUCTS CO. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Appeal from Supreme Court.
Proceeding before the Workmen's Compensation Bureau by Antonie Luszcs for compensation for death of her husband, Paul Luszcs, opposed by the Seaboard By-Products Company, employer. An award of compensation was made, which the Supreme Court affirmed on certiorari (125 A 136), and the employer appeals. Reversed.
Lindabury, Depue & Faulks, of Newark (John W. Bishop, Jr., and Burtis S. Horner, both of Newark, of counsel), for appellant.
Herman A. Berg, of Jersey City (James A. Hamill, of Jersey City, of counsel), for respondent.
This is an appeal from a judgment of the Supreme Court, affirming an award made by the Workmen's Compensation Bureau. In the year 1921 Paul Luszcs was an employee of the Seaboard By-Produets Company. His employment was subject to the provisions of section 2 of the Workmen's Compensation Act (Laws 1911, p. 134). In the month of September or October, 1921, Luszcs while at work was overcome by gas, and fell through a track hopper, sustaining injuries which caused a disability for a period of about 16 days. He then returned to work. For this injury he was entitled to and was paid compensation. On April 24, 1923, Luszcs died. On October 2, 1923, a petition for compensation was filed by his widow, Antonie Luszcs. The Seaboard Byproducts Company filed an answer to the petition, denying that the death of Luszcs was due to the accident, and setting up that no claim had been filed within the time allowed by law.
The case came on for hearing before the Workmen's Compensation Bureau on December 4, 1923. The referee at first held that the petitioner was not entitled to compensation, because her petition was not filed within one year from the date of the accident, as provided by section 23 (h) of the Compensation Act ( Laws 1919, p. 214). He further held that, notwithstanding this fact, the petitioner could recover for the expense of her husband's last illness and burial, if there was a causal relation between the accident and his death. The testimony of two physicians was taken. The case was then adjourned for two weeks. On the day fixed for the resumption of the hearing no proceedings were taken. The hearing was resumed on January 7, 1924. The appellant was not represented on that day. It had no notice that the hearing would on that day be resumed. The deputy commissioner on this day held that the death of Luszcs resulted from the accident. He awarded compensation for 300 weeks, at the rate of $12 per week, together with an allowance of $100 for funeral expenses, and an allowance for the expenses of the last illness, not to exceed $200, and a counsel fee of $150 to be assessed against the appellant.
On January 29, 1924, an application was made in behalf of the By-Products Company to reopen the case on the ground that the award was inconsistent with the prior decision of the deputy commissioner that the petitioner was entitled only to the expense of the defendant's last illness and burial. The appellant was then allowed to put in further evidence.
At the conclusion of this hearing counsel for the By-Products Company moved to strike out the entire testimony of the two physicians taken in the case, upon the ground that their testimony was given in response to hypothetical questions which did not include essential elements, and which did include other elements not proven. The deputy commissioner ruled that technically this objection was well founded, but before striking out the testimony he offered counsel for the petitioner an opportunity to introduce evidence which would cure the defects complained of. This counsel for the petitioner refused to do, whereupon the deputy commissioner denied the application to strike out this testimony, and stated that he would give the widow the benefit of the doubt, and in the absence of any further testimony would hold the decedent died as a result of the accident, and would award compensation.
The award was removed to the Supreme Court by writ of certiorari. The case was heard by a single justice, who affirmed the award.
From the judgment of affirmance entered in the Supreme Court, this appeal has been taken. In this appeal there are two questions involved. The first is whether the deputy commissioner had before him legal evidence sufficient to base a finding that there was a causal relation between the accident and the death of Luszcs. The second question is whether the petitioner was barred from obtaining compensation for her husband's death by the fact that her petition was not filed within one year from either the date of the accident or from the date of the last payment of compensation. We think it unnecessary to pass upon the first question, as we have concluded that the petitioner was barred from recovering compensation by the provisions of section 23 (h) of the Workmen's Compensation Act. This section of the act provides as follows:
"In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed in duplicate with the secretary of the Workmen's Compensation Bureau, at the State House, in Trenton, within one year after the date on which the accident occurred, or in case an agreement of compensation has been made between such employer and such claimant, then within one year after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by such employer, then within one year after the last payment of compensation."
In the present case no petition was filed within one year from the date of the accident. The accident occurred in October, 1921, and the petition was filed on October 2, 1923, approximately two years after the occurrence of the accident.
The respondent contends that section 21 (f) of the act ( Laws 1919, p. 211) raises the bar of the limitation imposed by section 23 (h). Section 21 (f) reads as follows:
"An agreement or award of compensation may be modified at any time by a subsequent agreement, or reviewed upon the application of either party on the ground that the incapacity of the injured...
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Franklin v. New Jersey Dept. of Human Services
...A. 1052 (Ch.1900) and Seaboard By-Products Co. v. Luszcs, 100 N.J.L. 54, 125 A. 136 (Sup.Ct.1924), rev'd on other grounds, 101 N.J.L. 170, 127 A. 212 (E. & A.1925), involved claims on behalf of children to support from private funds. However, none of the cases cited by the dissent, or any o......
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