Schaible v. Champenois Co., Inc.

37 A.2d 193, 131 N.J.L. 436, 1944 N.J. Sup. Ct. LEXIS 162

• Court: Supreme Court of New Jersey
• Decided: March 16, 1944
• Status: Published

Opinion

The opinion of the court was delivered by

Bodine, J.

This is a workmen’s compensation case. There was a recovery in the Bureau which was reversed in the Court of Common Pleas. There were two petitions for compensation: one, No. 45637, relates to an accident of August 11th, 1937, and was filed in time. The other, No. 42076, relates to an accident of November 16th, 1937, and was dismissed July 6th, 1939, without prejudice to the filing of a new claim. No new claim was filed. But on May 17th, 1941, the order of dismissal was vacated.

- The Bureau was without power to vacate tlie order of dis-_ missal in the absence of fraud, misrepresentation, mistake or the discovery of evidence which could not have been previously found by the exercise of reasonable diligence. Franzoi v. Jacob Rubinoff, Inc., 119 N. J. L. 184; Breen Iron Works v. Richardson, 115 Id. 305.

The petition, which was not dismissed, does state that the workman ceased work.on November 16th, 1937, but it makes no mention oí the accident of that day. Since it was verified June 2d, 1939, it cannot be regarded as a new claim made after the voluntary dismissal oí the claim relating to the occurrence oí November 16th, 1937. There can be no recovery for that occurrence because there was no timely petition relating thereto.

It is argued that since the dismissal was not upon notice, pursuant to R. S. 34:15-54, that it was void. Not so. Petitioner’s then attorney moved for the nonsnit stating that he was desirous oí filing a new petition. Petitioner cannot be heard to complain oí action in the Bureau his attorney initiated.

So far as part of the recovery in the Bureau related to an occurrence as to which there was a petition and proofs to support the finding, there should have been an affirmance. As to that part which related to an occurrence as to which there was no petition, there should be a reversal.

The ease is remanded to the Court of Common Pleas for the entry oí a judgment not inconsistent with this opinion.