Temple v. Storch Trucking Co.

• Decision Date: 24 October 1949
• Docket Number: No. A-6.,A-6.
• Citation: 68 A.2d 828
• Parties: TEMPLE v. STORCH TRUCKING CO.
• Court: New Jersey Supreme Court

68 A.2d 828

TEMPLE

v.STORCH TRUCKING CO.

No. A-6.

Supreme Court of New Jersey.

Argued Sept. 26, 1949.

Decided Oct. 24, 1949.

Proceedings under the Workmen's Compensation Act by Jean Temple opposed by the Storch Trucking Company for the death of Charles E. Temple, deceased employee.

From a judgment of the Hudson County Court affirming an award of compensation the employer appealed to the Appellate Division of the Superior Court, and from a judgment of that court, 2 N.J.Super. 146, 65 A.2d 70, the claimant appealed to the Supreme Court.

The Supreme Court, Case, J., affirmed the judgments holding that in a case arising under the old constitution where a question of fact was presented by the proofs below and determined, the judgment of that court was conclusive, and that the claimant was not harmed because the case was not taken directly to the Supreme Court where the case was decided on appeal by the body which succeeded the Supreme Court in that jurisdiction.

Wachenfeld and Burling, JJ., dissented.

R. Robinson Chance, Jersey City, argued the cause for appellant (Robert C. Cruhin, Jersey City, attorney).

G. Dixon Speakman, Newark, argued the cause for defendant-respondent (Toner, Speakman & Crowley, Newark, attorneys).

The opinion of the court was delivered by

CASE, J.

This is a workman's compensation case. The appeal comes to us from the Appellate Division of the Superior Court, whose opinion is reported in 2 N.J.Super. 146, 65 A.2d 70. The facts are recited there at length and need not be repeated. That court found factually that there was no event or happening in the decedent's work beyond the mere employment itself which brought about the final result, that there was no cardiac disturbance within a period sufficiently near the death to persuade the court, under the medical proofs, that the fatal myocardial infarction was attributable to any unusual strain or exertion of the employment, and that consequently the death did not result from an accident arising out of and in the course of the employment. There were proofs to sustain that factual finding. The appeal from the Workmen's Compensation Bureau to the Hudson County Court of Common Pleas was taken on September 4, 1947. The case, therefore, arose under the old constitution. The fact that there was a dissent in the Appellate Division from the decision of the court does not alter the fact that the court did determine the issue, and determined it by the judgment under appeal. This court will not weigh the evidence in this type of case arising under the old constitution, and where a question of fact was presented by the proofs below and determined, the judgment of that court is conclusive in this court and will not be reversed. Grant v. Grant Casket Co., 2 N.J. 15, 65 A.2d 520.

Appellant, in her reply brief, for the first time in any of the proceedings, contends that the appeal from the Bureau to the Common Pleas Court was mistakenly taken, and this upon the alleged ground that the accident happened on the New York side of the Holland Tunnel and that, therefore, anything in the nature of a review should have been by writ of certiorari directed by the former Supreme Court to the Bureau and that consequently the Court of Common Pleas was without jurisdiction to receive the appeal; and, further, that inasmuch as the statute, R.S. 34:15-66, N.J.S.A., as amended by P.L.1945, ch. 74, p. 397, directed that the determination by the Court of Common Pleas should be made within ninety days after the filing of the transcript and the determination was not made within that ninety day period, the appeal was nullified and the jurisdiction in the Common Pleas was lost. We pass by the untimeliness of that presentation and dispose of the questions on their merits.

The controlling factor in determining whether the appeal did or did not properly go to the Court of Common Pleas is the place where the accident happened. R.S. 34:15-66, N.J.S.A.; Frank Desiderio Sons, Inc. v. Blunt, 167 A. 29, 11 Misc. 494 (Sup.Ct.1933); Steinmetz v. Snead & Co., 123 N.J.L. 138, 8 A.2d 126 (Sup.Ct.1939). Although death suddenly struck the decedent while he was driving on the New York side, the incidents which are counted upon as an accident all occurred within the State of New Jersey. The suggestion that the decedent's remarks about pain were directed toward pain then present is not supported by the proofs. There was nothing in the driving of the truck with its trailer through so much of the tunnel as lies within the State of New York that varied in the slightest degree from the usual incidents of the employment or that involved any unusual physical or mental exertion. Moreover, assuming, for the purposes of the argument, that the case should not have been moved to the Common Pleas but should have been taken direct by certiorari to the Supreme Court, the appellant was not harmed because the case was decided on appeal by the body which succeeded the Supreme Court in that jurisdiction. The Appellate Division, acting in the stead of the former Supreme Court, made the decision.

The direction of the statute that the determination of the county court shall be made within ninety days after the filing of the transcript is directory. Ten Eleven Corporation v. Brunner, 135 N.J.L. 558, 53 A.2d 350 (Sup.Ct.1947); Weinberger v. Erie Railroad Co., 86 N.J.L. 259, 90 A. 1013 (E. & A. 1914). The weakness of the contention that the statutory direction is mandatory and that non-performance automatically results in a dismissal of the appeal becomes the more obvious if one poses the case that a claimant loses in the Bureau and upon appealing to the county courts is awarded a reversal after the ninety day period. We have no idea that the right of recovery under the Workmen's Compensation act was intended by the legislature to be denied the claimant by the failure of the county court to observe the statutory period in filing its decision. The same reasoning must be applied to both sides.

We conclude that the judgment below should be affirmed.

HEHER, J., concurring in result.

For affirmance: Justices CASE, HEHER, OLIPHANT and ACKERSON,-4.

For reversal: Justices WACHENFELD and BURLING-2.

HEHER, J. (concurring).

I do not subscribe to the view that compensation is not recoverable under the Workmen's Compensation Act, R.S. 34:15-7 et seq., N.J.S.A., unless there has been an injury attributable to an event or happening ‘beyond the mere employment itself.’ An event or happening ‘beyond’ the employment would plainly not be an incident of the service; and an accident does not arise out of the employment in the statutory view unless the risk is reasonably incident to the employment. The legislative purpose was to provide for the hazard of accident within the range of the servant's work. A compensable risk may be either an ordinary one, directly connected with the employment, or one extraordinary in character, indirectly connected therewith because of its special nature; but unless the hazard be either the one or the other, the accident is not due to the employment. On either of such events, the happening is imputable to the employment as one within the service, and not beyond it, and therefore compensable. The critical inquiry is whether the danger is one to which the employee was exposed because of the nature of his employment; if it is, the accident is within the statutory class. Geltman v. Reliable Linen & Supply Co., 128 N.J.L. 443, 25 A.2d 894, 139 A.L.R. 1465 (E. & A. 1942).

The distinction between ‘usual’ and ‘unusual’ strains and exertions in classifying compensable and noncompensable hazards of employment is illusory, for it necessarily presupposes a standard of exertion, varying in every trade and occupation. It is an impracticable rule plainly at odds with the statutory concept of an accident bearing a causal relation to the employment. Does the rule have reference to an occurrence that is not incidental to the employment, and therefore beyond it? Or does it relate to strain or exertion that is incidental to the employment, but not usual in the doing of the work? If so, how would the degree of exertion be measured? And why should there be a distinction between usual and unusual strains if they are incidental to the employment? Is it not in either case a happening arising out of the employment? Here, for example, the majority of the Appellate Division deemed strain from ‘very hard’ labor as not ...