For the prosecutors, Kellogg & Chance (R. Robisnon Chance, of counsel).
For the respondent, David Roskein (Harry Cohn, of counsel).
Before Justices Parker, Bodine and Perskie.
The opinion of the court was delivered by
PERSKIE, J. Two major questions require decision in this workmen's compensation case.
First: Did the lower tribunals, in determining the credit to be given to the employer or its insurance carrier on their liability for the award in favor of the employe, correctly conclude (as it is urged for the employe) that the provisions of chapter 162, Pamph. L. 1936, p. 381 (R.S. 34:15-40), which were in force and effect on the day payment was actually made to the employe by third parties tortfeasors in satisfaction of their liability in the premises, were controlling; or should the lower tribunals have concluded
(as it is urged for the employer and its insurance carrier) that the provisions of chapter 279, Pamph. L. 1931, p. 704, which were in force and effect on the day the employe sustained the accident, were controlling.
Second: If the answer to the first question is in favor of the position taken by the employe, did the lower tribunals correctly apply the provisions of R.S. 34:15-40 to the facts in this cause?
In the interest of brevity the employe petitioner-respondent will be designated as the employe and the employer and its insurance carrier, respondents-prosecutors, will be designated as employer.
With this observation we pass to the facts which are free from dispute. To the end, however, of clearly presenting the stated questions a general statement of the facts is advisable.
Morris Savitt was employed by the L. & F. Construction Co., as a carpenter and cabinet maker at the wage of $40 a week. While so employed, on January 13th, 1936, he sustained compensable injuries. The details thereof are unimportant; for it is conceded that he became totally disabled. The provisions of chapter 279, Pamph. L. 1931, supra, were then in effect.
From the date of the accident to about May 3d, 1937, the insurance carrier for the employer paid to the employe the sum of $1,382 on account of temporary and permanent disability and medical bills.
Since the disability which the employe sustained arose out of an accident which was allegedly and admittedly the result of the actionable negligence of third parties tortfeasors, the employe was not barred of his right ...