Temple v. Lumber Mutual Casualty Ins. Co. of New York

• Decision Date: 02 January 1958
• Docket Number: No. 12283.,12283.
• Citation: 250 F.2d 748
• Parties: Jean TEMPLE, Plaintiff-Appellant, v. LUMBER MUTUAL CASUALTY INSURANCE COMPANY OF NEW YORK, Now Known as New York Mutual Casualty Insurance Company, Defendant-Appellee.
• Court: U.S. Court of Appeals — Third Circuit

250 F.2d 748 (1958)

Jean TEMPLE, Plaintiff-Appellant, v. LUMBER MUTUAL CASUALTY INSURANCE COMPANY OF NEW YORK, Now Known as New York Mutual Casualty Insurance Company, Defendant-Appellee.

No. 12283.

United States Court of Appeals Third Circuit.

Argued December 5, 1957.

Decided January 2, 1958.

Robert C. Gruhin, Jersey City, N. J., for appellant.

Willard G. Woelper, Newark, N. J. (Toner, Crowley, Woelper & Vanderbilt Newark, N. J., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Charles Temple, thirty-five years old, went to work for Storch Trucking Company in July, 1945, and worked steadily until November when he was laid off for about four weeks. He returned to his employment on November 28th and the next day worked for twelve hours. He came home on November 29th "in poor condition". About midnight he suffered severe pains in his chest and a few hours later the pains recurred. He reported to work, however, at 7:00 A.M. on November 30th apparently with no complaint about his physical condition. He was assigned by his employer to drive a tractor-trailer rig loaded with paper over to Brooklyn. About three inches of snow was on the ground. Consequently in the process of hitching up the tractor-trailer rig both Temple and two other employees did some shoveling of snow and spreading of ashes. In accomplishing the hitching up it was necessary for Temple to climb in and out of the cab a number of times; it was a fair inference from the testimony of two fellow employees that Temple did the heavy work of cranking up the trailer's pony wheels, a difficult task in cold weather because of the condition of the lubricating grease. The truck left the employer's premises at about 7:40 or 7:45 with Temple driving, accompanied by a fellow employee, Spencer. It took them half an hour, because of the snow, to reach the Holland Tunnel, whereas the trip would normally have required only ten to fifteen minutes. Two-thirds of the way through the tunnel on the New York side, Temple suddenly collapsed. He died shortly thereafter.

His widow, plaintiff-appellant here, in December, 1945, initiated the first step in what has proved to be a protracted course of litigation by seeking recovery of compensation in the New Jersey Workmen's Compensation Bureau. A Rule for Judgment in favor of the plaintiff, dated July 24, 1947 was entered on August 5th, the date it was received and filed in the Secretary's Office of the Division of Workmen's Compensation at Trenton. On September 4, 1947 the employer filed an appeal in the Hudson County Court of Common Pleas, within thirty days of the filing date for the Rule for Judgment but more than thirty days later than the Rule was dated. The County Court affirmed the determination of the Workmen's Compensation Bureau and on June 11, 1948 entered an order of judgment in conformity with its opinion. The employer obtained a writ of certiorari from the Appellate Division of the Superior Court, which, after hearing, entered a judgment of reversal, Temple v. Storch Trucking Co., 1949, 2 N.J.Super. 146, 65 A.2d 70, 72. The court found that there was no evidence of "bridging symptoms" — symptoms after the performance of the heavy work and before the attack something more than half an hour later — which would indicate that the attack was attributable to the performance of the work. The court rested also on the rule apparently extant, at least at that time, which required recovery to be based on a finding of unusual strain or exertion "beyond the mere employment itself". There was a dissent. Plaintiff appealed to the New Jersey Supreme Court.

That court on October 24, 1949 affirmed by a divided court the judgment of the Appellate Division, 1949, 3 N.J. 42, 68 A.2d 828. Plaintiff in her reply brief for the first time raised the contention that since the "accident" happened in New York the review of the Workmen's Compensation Bureau determination, required by statute to be in the Court of Common Pleas of the County wherein the accident had occurred, N.J.S.A. 34:15-66, was not properly had in the Hudson County Court, but rather that the appropriate reviewing procedure was by writ of certiorari from the former Supreme Court. Since the time had passed in which that procedure could be initiated, the plaintiff's judgment from the Workmen's Compensation Bureau stood unimpeached. The Supreme Court, 3 N.J. at page 45, 68 A.2d at page 829, decided this question on its merits, "* * * passing by the untimeliness of that presentation", by pointing out that though death struck the decedent while he was in New York, all the incidents relied upon as constituting the accident had occurred in New Jersey. The plaintiff also raised for the first time the contention that because the Court of Common Pleas had not rendered its judgment within the ninety day period prescribed by statute, the judgment and subsequent appeal therefrom was a nullity. The Court, passing also the untimeliness of this argument, decided that the statute involved was only directory and not mandatory.

Thereafter, in consequence of the final result in the Supreme Court, a judgment was entered in the Hudson County Court (successor to the Court of Common Pleas), reversing its earlier judgment and entering a dismissal against the plaintiff. Notwithstanding, the plaintiff subsequently caused to be entered in the Office of the Clerk of Hudson County a true copy of the original Workmen's Compensation Bureau judgment. The ostensible lien so created was discovered when the employer trucking company was in the process of negotiating a mortgage. Subsequently in February, 1954 the employer's application to vacate and expunge the judgment from the records was granted. The plaintiff appealed to the Appellate Division, which affirmed by a per curiam opinion, November 4, 1954, later published in full by quotation in a third proceeding in the Appellate Division, 1956, 41 N.J.Super. 397, 400, 125 A.2d 297. It was in this second Appellate Division proceeding that plaintiff for the first time alleged that the effective date of the judgment of the Workmen's Compensation Bureau was July 24, 1947, not August 5, and that consequently the appeal to the Court of Common Pleas of Hudson County filed September 4, 1947 was outside the thirty day statutorily prescribed period. The result contended for was that the County Court, and the courts hearing the case in turn thereafter had never acquired jurisdiction over the subject matter of the July 24 judgment and it stood now unimpeached. The court found no merit in the argument. It pointed out that it is the filing of the determination and rule for judgment in the office of the secretary at Trenton that constitutes the entry of judgment, citing Brown v. Allied Plumbing & Heating Co., 1943, 130 N.J.L. 487, 33 A.2d 813; N.J.S.A. 34:15-58, and that it was the August 5 date which was significant. The court further stressed that it always had been perfectly clear that all parties knew what judgment of the Bureau was being appealed through the courts, as there never had been more than one judgment in favor of the widow. Plaintiff's subsequent petition to the Supreme Court of New Jersey for certification was denied on April 25, 1955.

Then, for some reason which does not appear, the Clerk of Hudson County indicated to the employer that he would need an additional order from the County Court in order to expunge the Workmen's Compensation judgment from his records. This order was granted on application though the plaintiff requested by oral motion that the proceedings be stayed pending the outcome of a suit which had been begun in the Federal District Court in August 1955. The plaintiff again appealed to the Appellate Division. Its opinion disposing of this third appeal is found at 1956, 41 N.J.Super. 397, 125 A.2d 297. In addition to grounds which it previously considered, the court dealt with the assertion that there could be no res judicata concerning the order for expurgation appealed from in the case then before it because the previous appeal from the earlier order was a nullity as no order had ever actually been entered.¹ The Appellate Division decided that the prosecution of the former appeal to it and the attempt to obtain review by the Supreme Court had waived any objection plaintiff might have had to a purely procedural aspect of the matter. 41 N.J. Super. at page 406, 125 A.2d 297. The court (citing cas...