For the prosecutor, Edwin Joseph O'Brien.
For the defendants, Congleton & McLaughlin (Richard J. Congleton, of counsel).
Before Brogan, Chief Justice, and Justices Bodine and Heher.
The opinion of the court was delivered by
HEHER, J. A chronological review of the litigation leading to these actions is essential to an understanding of the issues raised:
Averring that on December 4th, 1930, he suffered an injury by accident arising out of and in the course of his employment with the Western Electric Company, Robert E. King filed in the Workmen's Compensation Bureau, on June 29th, 1931, a petition for compensation under section II of the Workmen's Compensation act of 1911. Pamph. L., pp. 134, 763. Permanent "internal" injuries were claimed. The employer interposed an answer admitting the employment but denying that the statutory notice of the alleged accident had been given and that the employe had sustained a compensable injury.
On December 9th, 1931, the parties filed in the bureau a "Stipulation, Agreement and Settlement," purporting to bind the employer to pay, and the employe to receive, $1,500 "in a lump sum in full and final settlement for his injuries." It was therein declared that the employer agreed to make the stipulated payments "in order to settle the * * * disputed questions of fact, but without any prejudice or admission of liability on its part, and for the purpose of compromising all matters in dispute," and that the employe would accept the money "in full and final settlement of any and all claims for any disability whatsoever," and "waive his right to reopen his case at any future date for any cause whatsoever."
Deputy Commissioner Corbin, after a hearing, approved the agreement as "a fair and satisfactory settlement to both parties," and directed the payment of the amount thus agreed upon, "in a lump sum," as "a full and final settlement of the * * * case." Concededly, the merits of the claim were not then adjudicated. The "hearing" consisted merely of an expression by the employe of his willingness to make "final settlement" for the sum mentioned, "with no right to reopen," and of the opinion of a physician called by the employer that "the settlement" was "fair," since there was "a serious question" in his mind as to "whether the accident had any relation" to the heart condition. See Streng's Piece Dye Works v. Galasso, 118 N.J.L. 257. Shortly thereafter, the agreed sum was paid to the employe.
On December 3d, 1932, the employe presented to the bureau another petition alleging a permanent injury of the heart as the result of the accident referred to, and praying a determination of the amount of compensation due to him under the statute. The employer, by answer, denied "any permanent injury as a result of" the "alleged accident," and pleaded that the employe "did not file his claim for compensation within one year from the date of the alleged accident," and also that the original "petition * * * was compromised at a formal hearing held before" Deputy Commissioner Corbin on December 4th, 1931, and the "compromise" approved by order entered on December 9th, 1931. In due course, the employer made a motion to dismiss the petition "on the authority of Federated Metals Corp. v. Boyko, 11 N.J. Mis. R. 807; affirmed, sub nom., Boyko v. Federated Metals Corp., 112 N.J.L. 87, and Herbert v. Newark Hardware, &c., Co., 107 Id. 24; affirmed, 109 Id. 266." The motion was denied.
Again there was an agreement of compromise. A stipulation was entered for the payment of $3,624 to the injured employe "in a lump sum in lieu of all claims for any and all disability, temporary, total, permanent or otherwise, which amount is equivalent to forty per cent. of permanent total disability, or two hundred weeks compensation at the statutory rate of Eighteen and 12/100 ($18.12) Dollars per week," in addition to the sum previously paid, as "a final and complete close out and compromise of a litigated matter, and with the specific proviso that the claim cannot hereafter be reopened, either by the petitioner or the respondent, for either increased or decreased disability." The employe undertook to "repay to" the employer "the sum" therein "provided, in the event that he, his legal representatives or any one on his behalf" should thereafter "proceed further * * * or make further claim for compensation on account of" the claimed accident.
On May 25th, 1934, Deputy Commissioner Wegner entered "a judgment final" for the employe in accordance with the stipulation, "not subject to reopening." This likewise was not an adjudication on the merits. It was based upon the employe's expressed consent to accept the sum so provided as "a final close out," and the opinion of a physician called by the employer that "it is questionable whether or not the condition is due to trauma," and that therefore "the proposed compromise" was "fair and reasonable under the circumstances." The sum thus stipulated was paid to the employe on May 31, 1934.
On May 5th, 1936, the employe filed a petition for additional compensation based upon a claim of increased permanent disability. The employer moved to dismiss the petition upon the ground that the claim had been "previously compromised and finally disposed of," citing Federated Metals Corp. v. Boyko, supra, and Herbert v. Newark Hardware, &c., Co., supra. The motion was granted; and a formal order of dismissal was entered on June 25th, 1936. There was no appeal from this order.
On May 6th, 1937, the employe moved, on notice to the employer, for the vacation of this order of dismissal on the ground that it was "improvidently and erroneously entered." The motion was granted by Deputy Commissioner Wegner over the objection of the employer; and on the ensuing May 10th, an order was entered vacating the ...