Weir v. New Amsterdam Cas. Co.

• Decision Date: 24 March 1941
• Parties: WEIR v. NEW AMSTERDAM CASUALTY CO.
• Court: New Jersey Court of Common Pleas

20 A.2d 12

19 N.J.Misc. 342

WEIR

v. NEW AMSTERDAM CASUALTY CO.

Court of Common Pleas of New Jersey Passaic County.

March 24, 1941.

Proceeding by Joseph Weir, employee, to enforce against the New Amsterdam Casualty Company, workmen's compensation insurance carrier, a judgment of the Workmen's Compensation Bureau allowing petitioner compensation under the Workmen's Compensation Act against Harry Pilchman and another, trading as Clinton Hill Painters & Decorators, employers.

Order requiring the insurance carrier to pay the judgment.

Isadore Rabinowitz and Schwartz & Schwartz, all of Paterson, for petitioner.

James J. Skeffington, of Newark, for defendant.

DELANEY, Judge.

On March 22, 1939, in the Workmen's Compensation Bureau, the petitioner, Joseph Weir, filed his original petition for compensation, alleging that on the preceding January 28th he sustained both temporary and permanent injuries in an accident arising out of and in the course of his employment. In that petition he named Clinton Hill Painters & Decorators as his employer and the present defendant, New Amsterdam Casualty Company, as his employer's insurance carrier. On or about April 4, 1939, the New Amsterdam Casualty Company caused an answer to the petition to be filed; in form, the answer was signed "Clinton Hill Painters & Decorators by William A. Davenport, Agent, and Attorney;" but it was concededly the answer of the insurance company. The answer did not deny the alleged accident, but set up only that the petition was prematurely filed; that the respondent had not denied petitioner's right to permanent disability, but had requested an informal hearing thereon; that a date for the same, namely, March 31st had been, in fact, fixed, the petitioner not attending; that the respondent would apply to the court for an examination of the petitioner in order that the percentage of his permanent disability, if any, might be determined, but would resist claims for fees and costs; and, finally, that whatever temporary disability followed the petitioner's accident had already ceased.

The fact is that before the filing of petitioner's petition for compensation and after the receipt by the New Amsterdam Casualty Company on February 17, 1939, upon its own printed form "C", of a detailed report of petitioner's injury, it had paid him, "for temporary disability", the total sum of $100 for five weeks, running from February 4 to March 10, 1939, at the rate of $20 a week. That report stated the employer to have been "Clinton Hill Painters Decorators" and that the occupation of Weir was that of "carpenter," and in answer to question 16 of form "C", reading "Exact location of accident. If away from plant, give town, street and number," declared "999 Broad St. Newark, N. J."—a place away from the insured's shop. With this knowledge of the character of Weir's employment and of the place and circumstances of his accident, the insurance company made him the aforesaid payments "for temporary disability."

On June 20, 1939, the case was formally tried in the Workmen's Compensation Bureau at Paterson (the petitioner being a resident of Passaic County),—the fact of petitioner's accident or of its having arisen out of and in the course of his employment not being in issue; witnesses were sworn and heard both for the petitioner and for the respondent, Clinton Hill Painters & Decorators; and on behalf of the latter, the insurance company produced two medical experts on the extent of petitioner's permanent disability, and paid them for their testimony. The petitioner, among other things, testified that Clinton Hill Painters & Decorators was his employer, and that he believed Harry Pilchman to be the proprietor and Louis Lipschultz the foreman. On the other hand, Pilchman, sworn for the respondent, testified quite casually and incidentally that, at the time of the petitioner's accident, petitioner was employed by a firm, trading as "Clinton Hill Painters and Decorators", composed of himself and the said Lipschultz; but this apparently was not the main point or the chief object of his evidence; it seems, as it appears in the record, as if subsidiary to another purpose altogether, namely, the petitioner's own representation to the witness as to his physical condition on a named date.

During this hearing in the Bureau, no claim was made, nor any intimation given, that if the petitioner should obtain an award —and an award for some sum, under the testimony of the respondent's own medical experts, seemed inevitable, and must have been foreseen—, the New Amsterdam Casualty Company would not be answerable for it. As far as was disclosed or hinted, the insurance company was defending the case in the ordinary circumstances and for the usual purposes. No peculiarity about the defense can be discerned or inferred.

The determination of facts and rule for judgment dated June 27, 1939, ran, in fact, in favor of the petitioner; it allowed him compensation for temporary disability beyond that for which the New Amsterdam Casualty Company had previously paid, as above noted, and compensation for permanent disability based on the percentage of permanent disability found to exist; it directed respondent to pay also certain fees for medical treatment and bills for hospital services and for expert medical testimony and for counsel fees. But the caption of the cause was altered in the determination of facts and rule for judgment; the respondent was no longer called, as in the original petition of March 22, 1939, merely Clinton Hill Painters & Decorators, but Harry Pilchman and Louis Lipschultz, trading as Clinton Hill Painters & Decorators, improperly pleaded Clinton Hill Painters & Decorators.

On August 1, 1939, the cause was back again in the Workmen's Compensation Bureau, on the application of the petitioner for leave to amend the title in such manner that the respondent should be described as Harry Pilchman, Trading as Clinton Hill Painters & Decorators. At the outstart of this second hearing before the Bureau, counsel for the petitioner stated in the presence of the attorney of the respondent that the altered title of the matter, as the same appears in the determination of facts and rule for judgment, had been adopted "by virtue, and as a result, of the suggestion by the attorney for the respondent", and plainly intimated that such suggestion had been made for no honorable end. In the circumstances the statement cannot be considered by the court; it was neither a stipulation nor an admission,— the attorney for the respondent having merely remarked: "I have nothing to say. I am just waiting for the proof". And thereupon proof was offered by both parties on the question as to what person or persons was or were employing petitioner at the time of his accident. The weight of the evidence, as it appears to me, was to the effect that a silent partnership had subsisted between Pilchman and Lipschultz from August, 1938, to April, 1939, and that the petitioner, when injured, was the employee of the firm. In any case, the Bureau dismissed the application of the petitioner to amend.

This present proceeding comes here under the third alternative clause of R.S. 34: 15-84, N.J.S.A. 34:15-84. Petitioner seeks an order of this court, enforcing against the New Amsterdam Casualty Company the judgment entered under the said determination of facts and rule for judgment, dated June 22, 1939.

The insurance company interposes objections; it says...