Sexton v. Newark Dist. Tel. Co.

Decision Date25 February 1913
Citation86 A. 451,84 N.J.L. 85
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Certiorari to Court of Common Pleas, Essex County.

Proceedings by Lizzie Alida Sexton on behalf of herself and next of kin against the Newark District Telegraph Company. Judgment for plaintiff, and defendant brings certiorari. Affirmed.

Argued November term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ.

George W. Hubbell, of New York City, for the prosecutor. Harry V. Osborne, of Newark, for defendant in certiorari.

Frank H. Sommer and Kinsley Twining, both of Newark, for Employer's Liability Commission.

TRENCHARD, J. This writ brings up for review a judgment of the Essex county common pleas court against the prosecutor in an action under the Employer's Liability Act, approved April 4, 1911 (P. L. p. 134), and the supplement thereto approved May 2, 1911 (P. L p. 763).

The act of April 4, 1911 (the main act) is divided into three sections. The first six paragraphs are included within section 1, which is entitled "Compensation by Action at Law." These paragraphs, so far as they are pertinent to this case, are as follows: "Section 1. Compensation by Action at Law.

"(1) When personal injury is caused to an employé by accident arising out of and in the course of his employment, of which the actual or lawfully imputed negligence of the employer is the natural and proximate cause, he shall receive compensation therefor from his employer, provided the employé was himself not willfully negligent at the time of receiving such injury, and the question of whether the employé was willfully negligent shall be one of fact to be submitted to the jury subject to the usual superintending powers of a court to set aside a verdict rendered contrary to the evidence.

"(2) The right to compensation as provided by section 1 of this act shall not be defeated upon the ground that the injury was caused in any degree by the negligence of a fellow employé; or that the injured employé assumed the risks inherent in or incidental to or arising out of his employment or arising from the failure of the employer to provide and maintain safe premises and suitable appliances; which said grounds of defense are hereby abolished. * * *

"(4) The provisions of paragraphs one, two and three shall apply to any claim for the death of an employé arising under an act entitled 'An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default,' approved March third, eighteen hundred and forty-eight, and the amendments thereof and supplements thereto.

"(5) In all actions at law brought pursuant to section 1 of this act, the burden of proof to establish willful negligence in the injured employé shall be upon the defendant. * * *"

Paragraphs 7 to 22, inclusive, are included within section 2, which is entitled "Elective Compensation," and, so far as pertinent, are as follows:

"Section 2. Elective Compensation.

"(7) When employer and employé shall by agreement, either express or implied, as. hereinafter provided, accept the provisions of section 2 of this act, compensation for personal Injuries to or for the death of such employé by accident arising out of and in the course of his employment shall be made by the employer without regard to the negligence of the employer, according to the schedule contained in paragraph eleven, in all cases except when the injury or death is intentionally self-inflicted, or when intoxication is the natural and proximate cause of injury, and the burden of proof of such fact shall be upon the employer.

"(8) Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in section 2 of this act, and an acceptance of all the provisions of section 2 of this act, and shall bind the employé himself and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency.

"(9) Every contract of hiring made subsequent to the time provided for this act to take effect shall be presumed to have been made with reference to the provisions of section 2 of this act, and unless there be as a part of such contract an express statement in writing, prior to any accident, either in the contract itself or by written notice from either party to the other, that the provisions of section 2 of this act are not intended to apply, then it shall be presumed that the parties have accepted the provisions of section 2 of this act and have agreed to be bound thereby. In the employment of minors, section 2 shall be presumed to apply unless the notice be given by or to the parent or guardian of the minor.

"(10) The contract for the operation of the provisions of section 2 of this act may be terminated by either party upon sixty days' notice in writing prior to any accident. * * *"

Paragraph 11 sets forth the schedule of compensation for injury. Paragraph 12 provides a basis of compensation in case of death.

"(18) In case of a dispute over, or failure to agree upon, a claim for compensation between employer and employé, or the dependents of the employé, either party may submit the claim, both as to questions of fact, the nature and effect of the injuries, and the amount of compensation therefor according to the schedule herein provided, to the judge of the court of common pleas of such county as would have jurisdiction in a civil case, or where there is more than one judge of said court, then to either or any of said judges of such court, which judge is hereby authorized to hear and determine such disputes in a summary manner, and his decision as to all questions of fact shall be conclusive and binding. * * *"

The remaining paragraphs are included within section 3, which is entitled "General Provisions," and, so far as pertinent, are:

"(24) In case for any reason any paragraph or any provision of this act shall be questioned in any court and shall be held to be unconstitutional or invalid, the same shall not be held to affect any other paragraph or provision of this act, except that sections 1 and 2 are hereby declared to be inseparable, and if either section be declared void or inoperative in an essential part, so that the whole of such section must fall, the other section shall fall with it and not stand alone. Section 1 of this act shall not apply in cases where section 2 becomes operative in accordance with the provisions thereof, but shall apply in all other cases, and in such cases shall be in extension of the common law. * * *

"(27) This act shall take effect on the fourth day of July next succeeding its passage and approval."

The act was approved April 4, 15)11.

The supplement of May 2, 1911, is as follows:

"(1) Every contract of hiring, verbal, written or implied from circumstances, now in operation or made or implied prior to the time limited for the act to which this act is a supplement to take effect, shall, after this act takes effect, be presumed to continue subject to the provisions of section 2 of the act to which this act is a supplement, unless either party shall, prior to accident, in writing, notify the other party to such contract that the provisions of section 2 of the act to which this act is a supplement are not intended to apply.

"(2) This act shall take effect on the fourth day of July next succeeding its passage and approval."

This act was approved May 2, 1911.

In the present case, a dispute arose as to the liability of the prosecutor, the employer of Floyd Sexton, to make compensation for the death of Sexton. A claim, made by his widow on behalf of herself and the next of kin, was presented to the judge of the court of common pleas of the county of Essex, as allowed by paragraph 18 of the act. The claim was based upon the theory that there had been an implied acceptance by the employer of the provisions of section 2 of the act. A judgment in favor of the claimant, and against the prosecutor, was entered, computed upon the basis allowed by the act, and the employer sued out this writ. The learned trial judge made certain findings of fact from which it appears that on July 4, 1911, at about 5 o'clock in the afternoon, Floyd Sexton, the husband of the claimant, while employed by the prosecutor, met his death "by an accident arising out of and in the course of his employment," without any negligence whatsoever on his part.

The first reason assigned for reversal is "because the facts were not presented in such a way at the hearing as to give a ground for verdict for the plaintiff in certiorari."

We assume that this reason is intended to raise the question whether the evidence before the trial judge was sufficient to warrant his findings of fact. As stated above, paragraph 18 of the act made the common pleas judge's "decision as to all questions of fact * * * conclusive and binding." Furthermore, paragraph 20 of the act, which relates to procedure in all cases of dispute, expressly provides that, after the entry of judgment, "subsequent proceedings thereon shall only be for the recovery of moneys thereby determined to be due, provided that nothing herein contained shall be construed as limiting the jurisdiction of the Supreme Court to review questions of law by certiorari."

Hence, when the judgment of the common pleas court is removed by certiorari to the Supreme Court, the function of the writ is that of a writ of error. In such case the Supreme Court accepts the findings of the common pleas court upon the facts if there be any legal evidence to warrant them. Ryer v. Turkel, 75 N. J. Law, 677, 70 Atl. 68. In the present case there was ample legal evidence to support such findings.

Other reasons for reversal aver that the main act of April 4, 1911, violates the "due process of law" and ...

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