For the prosecutors, James J. Carroll.
For the respondents, Drewen & Nugent.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up for review an order of the Hudson County Court of Common Pleas allowing a counsel fee to counsel for the defendant New Jersey Manufacturers' Casualty Insurance Company, to be paid by the prosecutor American Mutual Liability Insurance Company.
The matter grows out of a claim for compensation filed by one William Domscheit against his employer, Natural Products Refining Company, for disability resulting from chrome poisoning incurred in the course of his employment. The history of the litigation appears in the reported opinions. Domscheit v. Natural Products Refining Co., 14 N.J. Mis. R 403; Natural Products Co. v. Common Pleas, 123 N.J.L. 522; 125 Id. 309. Briefly, each of the insurance companies insured the employer for part of the term of Domscheit's
employment and the question litigated was which of the companies was liable for the payments of compensation. There was no dispute as to the right of the employee to receive compensation or as to the primary liability of the employer to pay it.
Following the final determination of the matter in the Court of Errors and Appeals, which established the liability of American Mutual Liability Insurance Company, the cause was remitted to the Hudson Common Pleas, and application was made under the statute for services rendered upon the appeals. The statute in question, R.S. 34:15-67, provides for the allowance of a fee "to the party prevailing in the trial of such appeal, which fee may be taxed in the costs and recovered against the unsuccessful party."
The contention of the prosecutor is that the statute contemplates only a situation wherein the contending parties are the employee on the one hand and the employer, or his insurance carrier, on the other, so that where an employee establishes his right to an award he is entitled to a fee against his employer, or the insurer, and where his right to an award is defeated, counsel for the employer, or the insurer, may have a fee taxed against the employee. It is argued that in the situation presented in the instant case, the one insurance company was not a prevailing party against the other, but prevailed against the employee. In other words, there were two controversies, one between Domscheit and the New Jersey Manufacturers' Company, in which the insurance company prevailed, and the other between Domscheit and the American Mutual Company in which Domscheit prevailed.
We think the statute is not to be so narrowly construed and that the only real controversy was between the two insurance companies. Prosecutor, at one point in his brief, admits that the employee had no interest in the outcome of the litigation in the appellate courts. His right to compensation was secure and was not under attack. The Supreme Court said in its opinion, 123 N.J.L. (at p. 523), "The contest in this case, it is conceded, is between two insurance ...