Newark Paving Co. v. Klotz

• Decision Date: 24 February 1914
• Citation: 85 N.J.L. 432,91 A. 91
• Parties: NEWARK PAVING CO. v. KLOTZ.
• Court: New Jersey Supreme Court

91 A. 91

85 N.J.L. 432

NEWARK PAVING CO.

v. KLOTZ.

Supreme Court of New Jersey.

Feb. 24, 1914.

Certiorari to Court of Common Pleas, Essex County.

Proceedings between the Newark Paving.

Company and Hattle Klotz, administratrix. Finding for the administratrix, and the Paving Company brings certiorari. Affirmed.

The following statement of facts is taken from prosecutor's brief:

"Klotz was one of a gang of men employed by the respondent to wheel stone and cement to a concrete miser at work on Elizabeth avenue on the repavement of that street. He went to his work at 7 o'clock in the morning, but, when he arrived there, it was found that, owing to the pipes of the concrete mixer having been frozen, no work could be done until this had been repaired. The men, therefore, could do nothing whatever, and about 7:40, and at least an hour before the mixer was fixed so as to permit the resumption of work, Mr. Klotz was struck by a car of the public service corporation and killed."

To this must be added the important fact that, at the time he was struck, Klotz was fixing up his wheelbarrow.

Prior to the trial in this case, the petitioner received $800 from the public service corporation, and released, by a release under seal, that corporation from liability.

Argued November term, 1913, before SWAYZE and BERGEN, JJ.

McCarter & English, of Newark, for prosecutor. John V. Laddey, of Newark, for defendant.

SWAYZE, J. We think the evidence justified a finding that Klotz's death was due to an accident arising out of and in the course of his employment. The case is within the rule of Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458.

The question of the effect of the release of the street railway company is more troublesome. The defendant appeals to the rule established in Weber v. Morris & E. R. R. Co., 35 N. J. Law, 409, 10 Am. Rep. 253, Id., 36 N. J. Law, 213, and in Monmouth County Fire Ins. Co. v. Hutchinson and another, 21 N. J. Law, 107. It is true that the present defendant is not an insurer, but we are not prepared to say that that fact alone takes the case out of the reason of the rule as stated in the cases referred to, and by Chief Justice Shaw in the case on which they relied. Hart v. Western Railroad Corp., 13 Metc. (Mass.) 99, 46 Am. Dec. 719. We think, however, that the present case is not governed by that rule for the reason that to so hold would conflict with the intention of the act of 1911 (P. L. 1911, p. 134), under which this suit is brought. That act was meant to insure compensation to workmen not generally but by way of weekly payments in lieu of wages. It therefore partakes to some extent of the nature of a pension, and we have held that there must be specific findings of fact to warrant an order commuting the payments into a lump sum. New York Shipbuilding Co. v. Buchanan, 84 N. J. Law, 543, 87 Atl. 86. This object of the act is especially emphasized by the amendment of 1913 (P. L. p. 309), which declares that it is the intention that the compensation payments are in lieu of wages and are to be received by the employé or his dependents in the same manner in which wages are ordinarily paid; that commutation is a departure from the normal method of payment to be allowed only under unusual circumstances and not for the purpose of enabling the injured employé or the dependents of a deceased employé to satisfy a debt or to make payment to physicians, lawyers, or other persons.

Although this enactment is later than the accident for which this suit is...