McAllister v. Board of Ed., Town of Kearny

• Decision Date: 17 March 1964
• Docket Number: No. A--76,A--76
• Citation: 42 N.J. 56,198 A.2d 765
• Parties: Dolores McALLISTER, Petitioner-Respondent, v. BOARD OF EDUCATION, TOWN OF KEARNY, Respondent-Appellant.
• Court: New Jersey Supreme Court

Page 56

42 N.J. 56

198 A.2d 765

Dolores McALLISTER, Petitioner-Respondent, v. BOARD OF EDUCATION, TOWN OF KEARNY, Respondent-Appellant.

No. A--76.

Supreme Court of New Jersey.

Argued Feb. 17, 1964.

Decided March 17, 1964.

Henry G. Morgan and Robert J. C. McCoid, Newark, for respondent-appellant (Schneider & Morgan, Newark, attorneys).

Aaron Gordon, Jersey City, for petitioner-respondent.

Isidor Kalisch, Newark, for American Hard, Rubber Co., filed a brief amicus curiae.

PER CURIAM.

In 1952 the decedent fell from a ladder and suffered injury including serious heart damage. He filed his workmen's compensation claim and in 1955 the Division determined that he was totally and permanently disabled; it awarded him 75% Of total permanent, finding that 25% Of his disability was due to pre-existing arteriosclerotic and arthritic conditions which were not affected by his accident. In 1957 he suffered a severe emotional upset and died, leaving his widow and three minor children. his widow filed her dependency claim petition for compensation and a hearing was held before the Division. Medical testimony was introduced by her to the effect that after the accident the decedent's condition deteriorated progressively, that the underlying arteriosclerotic condition had little to do with the deterioration, and that the decedent's accident and death were causally related. Medical testimony was introduced by the Board of Education to refute causal relationship but the Compensation Judge rejected it, pointing out that it ignored 'the continuing effects of the accident' and the fact that at no point had 'a stationary fixed level been reached.' He expressly found causal relation between the accident and the death and also determined that the applicable compensation rates were those in force under N.J.S.A. 34:15--13 at the time of the decedent's death, namely, October 12, 1957.

The Board appealed to the County Court from the award rendered against it in the Division. It urged that there was no causal relation between the accident and the death and also that the Compensation Judge had erred in his determination that the rates in effect at the time of the death rather than the accident were controlling. After reviewing the evidence, the County Court made the finding that the petitioner had established causal relationship and that she was entitled to judgment for death benefits for herself and her minor children. It then determined, however, that the controlling rates were those in force at the time of the accident. On cross appeals to the Appellate Division, that court reviewed the evidence and made an independent factual finding as called for by Russo v. United States Trucking Corp., 26 N.J. 430, 140 A.2d 206 (1958), and Ricciardi v. Marcalus Mfg. Co., 26 N.J. 445, 140 A.2d 215 (1958). It found causal relationship between the accident and the death and it also determined, as had the Workmen's Compensation Division, that the controlling rates were those in force at the time of the death. McAllister v. Bd. of Ed., Town of Kearny, 79 N.J.Super. 249, 191 A.2d 212 (App.Div.1963). We granted certification on the Board's application. 41 N.J. 117, 195 A.2d 15 (1963).

There have been three concordant findings of causal relationship and that should be more than enough to satisfy any rational concept of the sound administration of justice. It is true that the third finding was called for by Russo and Ricciardi, but those decisions have not escaped criticism (13 Rutgers L.Rev., at pp. 73, 172 (1958)) and have entailed troublesome problems. Perhaps they should be reconsidered though not here since neither party has asked for such action and, in any event, they do not call for the fourth independent factual finding which the Board now seeks. Russo and Ricciardi placed reliance upon the fact that under the old practice the former Supreme Court would make a third factual finding and they equated the current mode of review before the Appellate Division with the available in the former Supreme Court upon its grant of Certiorari. 26 N.J. at pp. 433--435, 140 A.2d 206. They did not deal with the further review under the old practice; if they had they undoubtedly would have pointed out that the Court of Errors and Appeals did not interfere with the former Supreme Court's factual determinations on conflicting evidence. See Pilkington v. N.J. State Highway Dept., 125 N.J.L. 444, 15 A.2d 636 (E. & A.1940); Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512, 517, 6 A.2d 396 (E. & A. 1939). Regardless of the old practice, it is entirely clear that there is nothing in common sense or in our current rules of practice which imposes a mandatory requirement for a fourth factual finding in...