Russo v. U.S. Trucking Corp.

Decision Date03 April 1958
Docket NumberNo. A--52,A--52
Citation140 A.2d 206,26 N.J. 430
PartiesLouis RUSSO, Petitioner-Respondent, v. UNITED STATES TRUCKING CORP., Respondent-Appellant.
CourtNew Jersey Supreme Court

Harry Steiner, Newark, argued the cause for respondent-appellant.

Aaron Gordon, Jersey City, argued the cause for petitioner-respondent (Florio & Marciano, Hoboken, attorneys).

The opinion of the court was delivered by


This is a petition for benefits under the Workmen's Compensation Law. The petitioner has suffered the loss of his right leg which was amputated above the knee. The injury is alleged to have resulted from two separate accidents sustained by the petitioner while in the respondent's employ. The Deputy Director found for the respondent. On appeal, the Hudson County Court after a trial De novo on the record reversed and entered a judgment of total and permanent disability premised upon his inability to wear an artificial limb and his deteriorated physical condition. The respondent then pursued an appeal to the Appellate Division, seeking a redetermination of the factual conclusion below. The Appellate Division refused to enter into such a re-evaluation of the evidence and in a Per curiam opinion sustained the result reached by the County Court. The Appellate Division declared:

'The County Court accepted petitioner's proof as sufficient to warrant a favorable judgment and there is adequate evidence, if believed, to support the result. In the administration of the Workmen's Compensation Act, we must give great weight to the finding of that court. Otherwise it becomes little more than a conduit through which the record is passed on to this Division. In this case we do not believe that a De novo weighing of the evidence should be engaged in and the judgment is affirmed (with the qualifications noted) for the following reasons stated by Judge Duffy:'

Respondent then petitioned for and was granted certification. 25 N.J. 46, 134 A.2d 540 (1957).

The issue on appeal concerns the proper scope of appellate review of factual determinations in workmen's compensation proceedings and its application to this case.

The court hopes by this opinion to lay down a simple formula for the consideration of the review of judgments of the Workmen's Compensation Division and to avoid the confusing refinements which have been developed in the intermediate reviewing courts since the 1947 Constitution and the supplementing rules thereunder.

The matter of three possible succeeding reviews has been the subject of controversy and is a legislative matter, but so long as such plan exists the duty in the reviewing of the Division's determination is clear.

Under the original Workmen's Compensation Act of 1911 compensation claims were heard in the County Courts of Common Pleas. L.1911, c. 95, § 18. In 1918 the act was amended (L.1918, c. 149, p. 429) to provide for the establishment of the Workmen's Compensation Bureau within the Department of Labor to hear claims, with a trial De novo in the Court of Common Pleas. L.1918, c. 149, § 19. The trial De novo was not on the record but involved a full rehearing of the testimony of witnesses. See Charlock v. M. W. Kellogg Co., 4 N.J.Misc. 260, 132 A. 297 (Sup.Ct.1926). The Legislature in 1921 initiated the current practice, which was for the Common Pleas Court to determine the cause De novo, exclusively upon the transcript of the record and the testimony taken before the Bureau. L.1921, c. 229, § 7. For a brief interlude of one year review in the Court of Common Pleas was eliminated, L.1931, c. 338, § 1, only to be reestablished by L.1932, c. 25, § 1. In 1953 the act was amended providing only for the review in the County Court, but not specifying the nature of the review proceedings. R.S. 34:15--66, N.J.S.A., as amended by L.1953, c. 33, § 57. The previous procedure of trial De novo on the record is now supplied by our rules. R.R. 5:2--5(d).

Appeals from the Common Pleas Courts were heard by the former Supreme Court by writ of Certiorari. It is familiar history that the granting of the writ was discretionary, see e.g., Post v. Anderson, 111 N.J.L. 303, 168 A. 622 (E. & A.1933), although a distressed litigant might have two opportunities for the granting of the writ by petitioning first to an individual justice of the Supreme Court and upon his refusal to the court En banc. See Tweddell v. Village of South Orange, 95 N.J.L. 327, 112 A. 511 (Sup.Ct.1921). But the important point for our present consideration is that once the writ was granted the Supreme Court was required to re-evaluate the evidence. As stated by the Supreme Court in Anderson v. Federal Shipbuilding & Dry Dock Co., 118 N.J.L. 55, at page 56, 191 A. 455 (Sup.Ct.1937):

'* * * The original Compensation act, Pamph.L.1911, at p. 143, § 20, spoke of 'the jurisdiction of the Supreme Court to review questions of law by Certiorari.' But this was evidently found to be too narrow, and at least as early as 1921 the language was changed to read 'to review questions of law and fact by Certiorari.' Pamph.L.1921, at p. 734. * * * This brought the procedure in line with section II of the Certiorari Act (Comp.Stat., p. 406), and in view of such cases as Pearson v. Armstrong Cork Co., 6 N.J.Misc. 976, 143 A. 449; Mountain Ice Co. v. Durkin, 6 N.J.Misc. 1111, 144 A. 6, affirmed 105 N.J.L. 636, 147 A. 451; Voight v. McEwan Bros., 13 N.J.Misc. 587, 179 A. 850, affirmed 116 N.J.L. 218, 182 A. 853, and Lazzio v. Primo Silk Co., 114 N.J.L. 450, 453, 177 A. 251, affirmed 115 N.J.L. 506, 180 A. 881, the rule may be considered as now settled that in compensation cases the Supreme Court can and will consider weight of evidence even when the two lower tribunals are in accord on findings of fact, though their conclusions, to use the phrase repeated in our reports, 'will not be lightly disturbed' where there is evidence to support them.'

The 1947 Constitution, Art. VI, Sec. V, par. 4, implemented by rules of court, R.R. 4:88--1, have now made the granting of prerogative writs a matter of right, and as stated by Justice Heher in Hager v. Weber, 7 N.J. 201, at page 211, 81 A.2d 155, at page 160 (1951):

'Now, by the Constitution of 1947, the common-law writ of error has been superseded by the appeal therein provided. Article VI, Section V, paragraphs 1, 2. Under paragraph 3 of the same section, the Supreme Court and the Appellate Division of the Superior Court may exercise 'such original jurisdiction as may be necessary to the complete determination of any cause on review.' This grant of original jurisdiction is significant of a design to provide a review of matters of fact as well as of law, in accordance with the historic function of an 'appeal.' For the history and the varied uses of the 'appeal' in American and English jurisprudence, see Vaill v. McPhail, 34 R.I. 361, 83 A. 1075 (1912). There is no ground whatever for supposing that the framers of the Constitution had in mind an 'appeal' in law cases that would merely perform the office of the old writ of error in mode and scope of review.'

Our implementing rule, R.R. 1:5--4(b), made applicable to the Appellate Division by R.R. 2:5, affords no basis for an inference that it was the intendment of the new practice to lessen the scope of review on factual matters in workmen's compensation proceedings.

It is the duty of the reviewing court to weigh the evidence and determine whether the claimant has sustained the burden of proof of an accident arising out of and in the course of his employment by a preponderance of the evidence. Full and respectful consideration of the views expressed, on both fact and law, by the Division and intervening appellate courts, shall be given.

R.R. 1:5--4(b) provides:

'On a review of any cause, criminal or civil, involving issues of fact not determined by the verdict of a jury, new or amended findings of fact may be made, but due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'

Compare R.R. 4:88--13.

From a study of the entire record it is the function and duty of the reviewing court to make a determination according to its considered judgment, and in doing so it is mandatory only to give due regard to the opportunity of the hearer of the evidence to judge of the credibility of the witnesses. A finding of fact in the Division or appellate courts does not lessen the duty of the appeal court to determine the facts and evaluate them by full investigation and analysis of the evidence so as to adjudge whether the general finding is consistent therewith, i.e., if upon such total consideration of the record and views expressed below, it is believed the judgment both in fact and the applicable law from which appeal is taken is correct, it should be affirmed; if the judgment is erroneous, it should be reversed or modified.

Accordingly, we will assay the evidence and determine whether the claimant has sustained his burden of proof.

Petitioner has alleged that two separate industrial accidents, one on August 5, 1954 and the other on August 24, 1954, resulted in injuries necessitating the amputation of his right leg above the knee on September 9, 1954.

Respondent has denied the occurrence of the accident, and also the causal relation between the accidents alleged to have been sustained and the resultant injuries.

The expert medical testimony concerning causation is in direct contradiction. Much of the medical testimony revolves about whether or not an embolism or a thrombosis caused an occlusion in the right femoral artery on August 24, 1954 which eventually necessitated the amputation of petitioner's leg.

In the main, the doctors testifying for the petitioner supported the hypothesis of thrombosis caused by the traumatic insults of the two accidents, while the respondent's medical witnesses supported the hypothesis of an embolism of independent origin causing the injury.

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