Natural Prods. Ref. Co. v. Court of Common Pleas

• Decision Date: 10 October 1940
• Docket Number: No. 17.,17.
• Citation: 15 A.2d 754,125 N.J.L. 309
• Parties: NATURAL PRODUCTS REFINING CO. v. COURT OF COMMON PLEAS et al.
• Court: New Jersey Supreme Court

15 A.2d 754

125 N.J.L. 309

NATURAL PRODUCTS REFINING CO.

v. COURT OF COMMON PLEAS et al.

No. 17.

Court of Errors and Appeals of New Jersey.

Oct. 10, 1940.

Syllabus by the Court.

Under the circumstances of this case, where at a hearing before the Workmen's Compensation Bureau to determine which of two insurance carriers was liable for compensation due workman disabled by industrial disease one carrier declined to offer any evidence and rested upon motion to dismiss which was granted by the Bureau but reversed by the Court of Common Pleas, held the judgment of the Common Pleas was dispositive of the issues and appellant was not entitled to a new trial in the Bureau at which to offer its proofs.

Appeal from Supreme Court.

Suit between the New Jersey Manufacturers' Casualty Insurance Company and the American Mutual Liability Insurance Company to determine liability for payment of compensation to an incapacitated employee under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq. To review an adverse judgment, the American Mutual Liability Insurance Company applied for certiorari directed to the court of common pleas in and for the county of Hudson and others. From a judgment of the Supreme Court, 123 N.J.L. 522, 10 A.2d 148, affirming the judgment and dismissing the writ, the American Mutual Liability Insurance Company appeals.

Judgment affirmed.

James J. Carroll, of Newark, for appellant.

Drewen & Nugent, of Jersey City, for respondent.

DONGES, Justice.

This is an appeal from a judgment of the Supreme Court on certiorari in a workman's compensation case. The controversy is not between the workman and his employer as to the employee's right to compensation, which is conceded and has been paid, but between two insurance carriers as to liability for the compensation paid. The employee, William Domscheit, unquestionably is disabled to the extent adjudged by reason of an industrial disease known as chrome poisoning contracted as the result of exposure in the course of his employment.

Domscheit was employed by the Natural Products Refining Company from August, 1928, until March, 1934. During all the time he was thus employed the workmen's compensation insurance was carried by the respondent on this appeal, New Jersey Manufacturers' Casualty Insurance Company, except from November 18th, 1933, to December 17th, 1933, during which period the policy of the appellant here, American Mutual Liability Insurance Company, was in effect. During this period, as the result of complaints to his employer that he was not feeling well, Domscheit was examined by a physician of the American Mutual Company, Dr. Finn, and as a result of this examination his work was changed, on December 7th, 1933, from that of cooper, which brought him into close contact with the substance containing chrome, to outside labor in and about the yard of the employer.

The employee filed a petition for compensation with the Workmen's Compensation Bureau on March 17th, 1934. The New Jersey Manufacturers' Company filed an answer on behalf of the employer. The matter came on for hearing in the Bureau on February 14th, 1936, at which time the petitioner appeared and was represented by counsel. The New Jersey Manufacturers' Company appeared by its attorney in defense to the claim. The situation with respect to the coverage by two insurance companies being explained to the deputy commissioner and the attorney for the New Jersey Company asserting his contention that the other carrier was liable, the deputy commissioner did not proceed with the hearing but suggested that the matter be continued and that the American Mutual Company be brought in.

The matter came on for hearing again on April 24th, 1936, when the petitioner and both insurance companies were represented. The petitioner testified to symptoms of the disease as far back as 1932 in the form of nose trouble. He further testified that he continued his regular employment down to December 7th, 1933, when as the result of the examination by Dr. Finn, his work was changed. Two physicians testified on his behalf as to the presence of the occupational disease and the extent of total and permanent disability. One of these based his testimony on an examination made December 13th, 1935, and the other on an examination made April 11th, 1935.

The New Jersey Company then presented its case which consisted of the testimony of two fellow employees of Domscheit, which is not important to the point under review here, and that of a physician who examined the workman on April 19th, 1934, and again on April 31st, 1934. He testified that on those dates he found a perforation of the nasal septum due to chrome poisoning and gave his opinion of the extent of the disability.

When the New Jersey Company rested its case, the American Mutual Company made a motion to dismiss as to it. The New Jersey Company insisted that the American Mutual Company put in its case before making such motion, but that company declined to do so. The deputy commissioner indicated that he would take the motion under advisement and counsel for the New Jersey Company objected to trying the case piecemeal and again insisted that the other carrier put in its evidence. Counsel for the American Mutual Company recalled one of the prior witnesses for further cross-examination (having engaged in cross-examination of witnesses throughout the case) but offered no evidence on its behalf, despite the fact that it had witnesses in court under subpoena among whom was a Dr. Mears, who will be mentioned later. At the end of the hearing, counsel for the American Company said: "I would like to get this straight. The court denied my right to bring in medical evidence? The Court: If I decide against you I will let you hear from me." We find no place in the record where the court refused to permit medical evidence on behalf of the appellant, in fact,...