Sharp v. Borough of Vineland

• Court: New Jersey Court of Common Pleas
• Writing for the Court: Neutze, C. P. J.
• Citation: Sharp v. Borough of Vineland, 14 N.J.Misc. 256, 183 A. 911 (N.J. Ct. Com. Pl. 1936)
• Decision Date: 30 March 1936
• Parties: MARY E. SHARP, PETITIONER-APPELLANT, v. BOROUGH OF VINELAND, RESPONDENT-APPELLEE

183 A. 911

SHARP

v. BOROUGH OF VINELAND.

Court of Common Pleas of New Jersey, Salem County.

March 30, 1936.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by Mary E. Sharp, petitioner, opposed by the Borough of Vineland. From the determination and judgment of the Workmen's Compensation Bureau, the petitioner appeals.

Determination and judgment affirmed.

Philip P. Wodlinger, of Millville, for appellant.

Ralph N. Kellam, of Camden, for appellee.

NEUTZE, Judge.

The facts in this case were agreed upon between the parties while the matter was before the deputy commissioner of labor. It was admitted that the decedent, Ralph Sharp, was fatally injured as the result of an accident arising out of and in the course of his employment. The only question upon which a dispute arose was as to the number of persons who were legally dependent upon the decedent.

It undoubtedly appears that the decedent left surviving him a widow and his child, over sixteen, who was the son of a prior marriage. This child was found to be mentally and physically deficient, and an award was made to the widow and child to the extent of 40 per cent. of the decedent's wages for 300 weeks.

However, the petitioner, the wife of the decedent, made further claim for three other children, namely Druscilla, Frank, and Edgar, all of whom are under sixteen years of age. It was undisputed that these three children were all illegitimate children born to the petitioner, Mary E. Sharp, prior to her marriage to the decedent, and that the decedent, Ralph Sharp, was not the father of these children. Upon the petitioner's marriage to the decedent, these children resided with the decedent and petitioner. The petitioner therefore claims that the decedent was the stepfather to these children, and therefore upon his death they could take compensation as dependents within the meaning of the so-called Workmen's Compensation Act. The deputy commissioner of labor, however, did not class these children as dependents within the meaning of the statute under paragraph 12, and therefore determined that the three children could not be awarded any compensation, and dismissed the claim as to them.

No dispute has arisen as to the rights of the widow and the decedent's own son, so I shall pass to the problem of the rights of the illegitimate children of the widow.

At common law, if a person was injured personally, any resulting loss died with him. "Actio personalis moritur cum persona." Haggerty v. Central Railroad Co., 31 N.J.Law, 349; Gottlieb v. North Jersey St. Ry. Co., 72 N.J.Law, 480, 63 A. 339. Statutes have been passed to correct the harsh effect of such a rule of law. If the decedent is fatally injured through the negligence of a third person, then the Death Statutes, 1 Cum.Supp.Comp.Stat.1911-1924, p. 927 (section 55—8), afford the decedent's widow, surviving husband, and next of kin a remedy, and they may be compensated for their injury. However, should the decedent die as the result of an accident while employed, then the Workmen's Compensation Act (Comp.St.Supps. § **236—1 et seq.) must be looked to. This act provides for compensation to certain enumerated persons, who, if they are dependents, may secure a fixed compensation from the employer. Gregutis v. Waclark Wire Works, 86 N.J.Law, 610, 92 A. 354. This act is in derogation of the common law, and while, on the other hand, a general rule exists that the Workmen's Compensation Act is to be liberally construed, it must be noticed that the statute provides with particularity who are or may be dependents of a deceased workman. In fact, the act has been amended several times to specify more persons who can possibly be declared as dependents under the statute. It appears that the rule of "expressio unius est exclusio alterius" should be applied in this case, as the Legislature has specified the individuals who are to be classed as dependents. The possible dependents are "husband, wife, parents, stepparents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half-brothers, half-sisters, niece, nephew." 2 Cum.Supp.Comp.St. 1924, p. 3876, par. 12 (section **236—12), subsec. (g), as amended P.L.1928, c. 135, p. 286 （Comp.St.Supp.1930, § **236—12).

Are the three illegitimate children of the...