Wingler v. N.J. Fulgent Co. Inc.

• Decision Date: 18 November 1943
• Citation: 34 A.2d 649
• Parties: WINGLER et al. v. NEW JERSEY FULGENT CO., Inc.
• Court: New Jersey Department of Labor-Workmen's Compensation Bureau

34 A.2d 649

WINGLER et al.

v.NEW JERSEY FULGENT CO., Inc.

New Jersey Department of Labor-Workmen's Compensation Bureau.

Nov. 18, 1943.

Proceeding under the Workmen's Compensation Law by Ida Wingler and Michael Wingler, individually, and Ida Wingler as next friend of Catherine Wingler, claimants, opposed by New Jersey Fulgent Company, Inc., employer, to recover death benefit compensation on account of the death of Joseph Wingler, who met his death by accident arising out of and in the course of his employment.

Judgment for petitioners in accordance with opinion.

John C. Stockel, of Perth Amboy, for petitioners.

Cox & Walburg, of Newark, for respondent.

JOHN M. KERNER, Deputy Commissioner.

The petitioners herein, Ida Wingler and Michael Wingler, individually, and Ida Wingler as next friend of Catherine Wingler, filed their dependents' claim petition seeking death benefit compensation. It is admitted by the parties that the decedent, Joseph Wingler, on September 1, 1942, was in the employ of the respondent and on that day met his death by accident arising out of and in the course of his employment. It is not disputed that the decedent left him surviving, as full dependents, his mother, Ida Wingler, and his father, Michael Wingler. It is further admitted, and the proofs showed, that the decedent also left him surviving, a sister, Catherine Wingler; that at the time of the fatal accident she was 24 years of age, that she was wholly dependent upon the decedent and that she was then and is now a mentally deficient person.

It was the contention of the respondent, and this is the only question for determination here, that decedent's sister, Catherine, is not entitled to death benefit compensation by virtue of the provisions of R.S. 34:15-13(j), N.J.S.A., which reads as follows: ‘j. Payments to such physically or mentally deficient persons as are for such reason dependent shall continue during the full compensation period of three hundred weeks. In computing compensation to those named in this paragraph, except husband, wife, parents and step-parents, only those under sixteen or over forty years of age shall be included and then only for that period in which they are under sixteen or over forty.’

Prior to the adoption of the Revised Statutes of 1937, P.L.1928, c. 135, Sec. 2(j) was controlling in a disposition of the problem here presented, and read as follows: ‘(j) In computing compensation to those named in this paragraph, except in the case of husband, wife, parents and stepparents only those under sixteen, or over forty years of age, shall be included, and then only for that period in which they are under sixteen or over forty; provided, however, that payments to such physically or mentally deficient persons as are, for such reason, dependent, shall be made during the full term of compensation payment of three hundred weeks.’

R.S. 1:1-4 N.J.S.A., provides as follows: ‘The provisions of the Revised Statutes, not inconsistent with those of prior laws, shall be construed as a continuation of such laws.’ In view of this section, an examination should be made of the prior statutory enactments.

It is interesting to note that in the basic Workmen's Compensation Law, P.L.1911, c. 95, the statute is divided by law into ‘Section I’ (which includes what would generally be referred to as ‘sections' 1 to 6); ‘Section II’ (which includes what would generally be referred to as ‘sections' 7 to 22); and ‘Section III’ (which includes what would generally be referred to as ‘sections' 23 to 27). When reference is made to the numbered parts of an act, the reference to them is generally as ‘sections,’ but because of the use of the word ‘Section’ in the 1911 act to designate what is usually referred to as ‘Article,’ it will be noted that in each amendment of the original Section 12 of P.L.1911, c. 95, viz., P.L.1913, c. 174, Sec 2; P.L.1914, c. 244, Sec. 1; P.L.1919, c. 93, Sec. 2; P.L.1921, c. 85, Sec. 1; P.L.1923, c. 49, Sec. 2, and P.L.1928, c. 135, Sec. 2, the introductory sentence always referred to ‘paragraph’ 12 of the original act instead of ‘section’ 12, as is usually used in the case of amendment or reference. This explains, in P.L.1919, c. 93, Sec. 2, the reason for the use of the phrase ‘those named in this paragraph’ in the body of the act, which obviously referred to the whole of what would ordinarily be referred to as ‘section’ 12.

Under the provisions of P.L.1928, c. 135, Sec. 2(j), supra, it appears that the provision for payments to physically or mentally deficient persons was not restricted by any age limitation. The language used in R.S. 34:15-13(j), N.J.S.A., is not as clear as the provisions in the 1928 act, but in view of R.S. 1:1-4,...