For the petitioner-defendant, Henry Harris.
For the respondent-defendant, Edwin Joseph O'Brien.
For the prosecutor of the writ, Stephen J. Lorenz and William J. Egan.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
CASE, J. The writ brings up a judgment of the Common Pleas Court of the county of Hudson finding that Voessler, an employe of Palm Fetchteler & Company, is totally and permanently disabled, that that condition was caused in part by an injury received in 1926 while in the employ of that company and in part by a congenital bone defect in the skull and an accident which occurred in 1923; that Voessler was entitled to ninety per cent. partial total disability by reason of the 1926 accident and that payments prorated according to that percentage should be paid by the employer; and that Voessler was disabled to the extent of ten per cent. total permanent disability by reason of his pre-existing conditions, is entitled to the benefits provided by chapter 81, Pamph. L. 1923, as amended by chapter 55, Pamph. L. 1936, and should be placed on the one per cent. fund created by those statutes and receive the compensation benefits provided therein for persons totally and permanently disabled as a result of the combined effects of a compensable accident and a pre-existing disability.
The writ was issued at the instance of the commissioner of labor because of his relationship to the so-called one per cent. fund set up by chapter 74, Pamph. L. 1919, as amended by the above mentioned statutes. The commissioner is not a necessary party to such a proceeding. Walker v. Albright, 119 N.J.L. 285. Whether he is a proper party or not need not be determined for the reason that he came into this case as a party respondent at the hearing of the appeal in the Pleas, on an order made at his request, with the consent of the employer and the employe.
Prosecutor makes the points that the fund is the property of the state because the method by which it is raised is a burden upon all industry, and further, that no person should
be deemed to acquire or to have acquired any rights, vested or otherwise, under the provisions of the act. These points may be accepted without reaching the merits of the discussion. We may, however, repeat what was said in Walker v. Albright, supra, that if a workman is within the purview of the act he has a legal right to participation which the court should and will enforce so long as that condition persists and the legislation remains as it is.
Prosecutor further contends that the workman has not proved by a preponderance of the evidence that he suffered a pre-existing disability as a result of the first accident of 1923 -- a disability within the meaning of the Compensation act. We have no difficulty in deciding that the proof is ample to sustain a finding that Voessler had a congenital bone defect of his skull and that he suffered an accident in 1923 -- before he was in the employ of Palm Fetchteler & Company -- whereby, perhaps because of a greater susceptibility due to the congenital bone defect, he was injured by the falling of a dumb waiter wherefrom he suffered partial permanent disability. The evidence will not, in our opinion, sustain a finding that the 1923 accident arose out of or in the course of an employment. Thereupon the question seems to be presented whether the one per cent. fund is available for allocation to those workmen who suffer permanent total disability due in part to an accident compensable under the Workmen's Compensation act and in part to an earlier accident not compensable under that statute. But that question has already been answered. Addotta v. Blunt, 114 N.J.L. 85, decided in December of 1934 and construing the 1923 statute, determined that there must be two compensable accidents and that when an employe has previously suffered a permanent partial disability non-accidental in origin and is wholly disabled ...