For the prosecutor, Edwin Joseph O'Brien (Merritt Lane, of counsel).
For the respondent, Bozza & Bozza.
Before Brogan, Chief Justice, and Justices Case and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a workman's compensation case.
Petitioner (respondent) filed his petition with the bureau on December 10th, 1931, alleging the death of his son as a result of an accident occurring July 24th, 1931. It appears that the body of the employe became wedged between an elevator and an elevator wall when he was carrying materials from one part of the factory wherein he was working to another. The petition alleged that the employe's entire family including parents and five infant brothers and sisters were dependents. The wages were stated at $12 per week. The employer filed an answer claiming no dependency and that the weekly wage was $10. On March 1st, 1932, the parties, represented by counsel, appeared before the deputy commissioner. The following is a copy of the transcript of the testimony as to just what did in fact take place at the hearing:
"Mr. Baker -- This settlement, your honor, is on the basis of a lump sum of $750, counsel fee $200, $75 of which will be payable by the respondent. We want to amend our answer in this case by consent of the attorney for the petitioner and by the permission of the court. The respondent moves to amend their answer denying that the death of Toni Blasi was caused by an accident arising out of and in the course of his employment. Therefore, a compromise settlement has been entered into. The deceased is Toni Blasi and the father is Stanley Blasi, who signed the petition, and under the terms of the settlement the respondent will pay the petitioner, Stanley Blasi, a lump sum of $750, and the counsel fee is to be $200, $75 of which will be payable by the respondent. This is to be a complete and final closeout for once and all time. The above settlement is in addition to the $150 that has been paid for the funeral expenses of the deceased."
Stanley Blasi, the petitioner, a witness called on his own behalf, being first duly sworn, testified as follows (the testimony of this witness was given through the interpreter, Manotti R. Langione):
By Mr. Goas -- " Q. Mr. Blasi, you understand by the settlement that has just been made between the parties, you are to get $750 in cash, out of which you have to pay $125 towards your attorney fee? A. Yes. Q. The respondent will pay $75 towards the attorney fee. A. Yes. Q. Do you understand that? A. Yes. Q. Is it satisfactory? A. Yes."
By the Court -- " Q. This is a final settlement of your case. Do you understand that? A. Yes. The Court -- Settlement approved."
Accordingly a determination and rule for judgment was entered (March 8th, 1932) on the approved settlement. It is interesting to observe that on the mere statement of employer's counsel, and the testimony as aforesaid, the deputy commissioner says in his determination and rule for judgment: "* * * It was found that the respondent, in the first place, by an amendment to the answer, denied that the injury arose by accident arising out of and in the course of the employment on the ground that the deceased was doing something that he was not supposed to do at the time and it was further found that the respondent denied that there was ...