Lazzio v. Primo Silk Co.

177 A. 251, 114 N.J.L. 450, 1935 N.J. Sup. Ct. LEXIS 477
CourtSupreme Court of New Jersey
DecidedFebruary 26, 1935
StatusPublished
Cited by17 cases

This text of 177 A. 251 (Lazzio v. Primo Silk Co.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lazzio v. Primo Silk Co., 177 A. 251, 114 N.J.L. 450, 1935 N.J. Sup. Ct. LEXIS 477 (N.J. 1935).

Opinion

The opinion of the court was delivered by

Perskie, J.

The writ of certiorari seeks to review a judgment of the Passaic County Court of Common Pleas which affirmed a judgment of the workmen’s compensation bureau dismissing the petition filed herein.

It appears, by stipulation in this case, “that an accident happened [to deceased employe] sometime in February [actual date February 11th, 1930], arising out of and in the course of the employment with the respondent as a result of which she [deceased] developed a chronic synovitis of the right knee.

*451 Paragraph 5 of the determination of facts and findings by the bureau states the result reached by it in the premises:

“(5) After a consideration of all the facts and circumstances, I find that when the amount of permanent disability becomes fixed and agreed upon by the parties, the respondent’s liability to compensate becomes fixed and anything which a petitioner may do after the permanent disability becomes fixed cannot be binding upon the respondent, unless at that time further treatment is indicated.” (Italics ours.)

“I further find as a fact that the chain of causation between the accident and the subsequent death was broken by the deceased herself after her permanent disability had been fixed and it was indicated that no further treatment would be of any avail, and, therefore, the respondent cannot be held liable for this voluntary act of hers.”

The finding of the Passaic County Court of Common Pleas discloses, inter alia, the following conclusion reached :

“(6) J am satisfied that-there is no causal connection between the development of erysipelas and the synovitis, which was admitted to be the result of the accident.” (Italics ours.)

Respondent concedes that the facts are, substantially, as set forth by the prosecutor. They are as follows: On March 19th, 1931, Rose Higgins filed a petition for compensation as a result of an accident which she suffered, while employed by respondent, on February 11th, 1930. She struck her right knee against a silk loom as a result of which a chronic synovitis developed in said knee.

A hearing on this petition was held on June 23d, 1931, at which time the commissioner made an award of twenty-two and one-seventh weeks temporary disability, which amount petitioner had already received, and permanent disability equivalent to thirty and five-eighths weeks at $16.67 a week. The last payment matured on February 9th, 1931. Compensation for the final fourteen weeks of the period fixed by the commissioner remains unpaid. Payment thereof, $277, was tendered and petitioner refused it. The undisputed fact should be here marked, and it was so stated by the commis *452 sioner, that the alleged compromise agreement, for the aforesaid compensation, dated October 37th, 1931, was not signed by the petitioner. The fact is that she died, of erysipelas, on September 36th, 1931.

On October 5th, 1931, there was filed, in behalf of a daughter, Eleanor Higgins, twenty-two years of age (who is confined in an institution, and has been so confined for the past fifteen years as a mental defective, and who was dependent upon her mother, Rose Higgins, deceased), the petition, here before us, for compensation under the Workmen’s Compensation act.

Among the objections raised against the right to the relief sought by the prosecutor is the one that the petition was filed out of time, i. e., the statute of limitation has run.

We hold this objection to be without merit. As already noted the last compensation which ought to have been paid matured on February 9th, 1931; this petition was filed on October 5th, 1931. It was, therefore, clearly presented within the time prescribed by section 33 (h) of the Workmen’s Compensation act, as amended by chapter 93. Pamph. L. 1919, pp. 301, 314. Lusczy v. Seaboard By-Products Co., 101 N. J. L. 170. “It matters not that the decedent did not accept the payment tendered. The tender here was the equivalent of payment in the statutory sense.” Hercules Powder Co. v. Nieratko, 113 Id. 195, 300, 301.

It is next urged that there is no provision in the Workmen’s Compensation act for an insane, adult child. This objection is, in our opinion, also devoid of any merit. Subdivision (9) of paragraph 13 of the act defines the term “dependents.” It, of course, includes “children.” It requires or merits no extended discussion to point out that a physical or mental infirmity of a child does not rob it of its relationship to its parents. And it would indeed be a sad commentary if it were to be held that this outstanding, wholesome and humane piece of social legislation did not apply or inure to the benefit of a child, who, by reason of its physical or mental infirmity or incapaeitjq was made helpless. A dependent child who is mentally or physically infirm or incapacitated *453 is clearly entitled to the benefits of the act. ISTor does the fact that such child is legally unable to receive the compensation due it operate as a bar. Our legislature provided for just such a contingency. Pamph. L. 1928, ch. 136, p. 288.

It is next argued that the cause is improperly styled or captioned. This is so. The prosecutor sued as administratrix ad prosequendum. This is improper. But this error is not fatal. The representative designation aforesaid may be treated as mere surplusage, or, at all events, the proceedings may be appropriately amended. Martin v. Lehigh Valley Railroad Co., 114 N. J. L. 243.

Having disposed of all technical objections we shall now proceed to consider and dispose of the cause on its merits.

We are unable to concur in the result reached by either the bureau or the Court of Common Pleas. And while we are not unmindful of the cases which hold that the result reached by two independent tribunals should not lightly be disturbed on appeal (Berlinger v. Medal Silk Co., 113 N. J. L. 476; 174 Atl. Rep. 558), nevertheless, we do not regard that principle of law as a bar to our consideration of a given case, particularly so if and when we conclude that the result reached merits and needs be disturbed. (Section 11 of the Certiorari act.)

We have pointed out the basis for the holdings of the lower tribunals. We have carefully considered the proofs on which each based their result. The proofs leads us to' the firm conclusion that it clearly discloses, although no further medical treatment was indicated, at the time .of the fixation of respondent’s liability, that decedent’s doctor, whose competency and professional standing is unquestioned, prescribed the very treatments she used, namely, the rubbing of the knee with liniment and the baking thereof by a lamp.

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Bluebook (online)
177 A. 251, 114 N.J.L. 450, 1935 N.J. Sup. Ct. LEXIS 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lazzio-v-primo-silk-co-nj-1935.