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Zietko v. New Jersey Manufacturers Casualty Insurance Co.

Decided: October 6, 1944.


On appeal from the Supreme Court.

For the appellant, Isadore Rabinowitz and Nathan Rabinowitz.

For the respondent, Kellogg & Chance (R. Robinson Chance, of counsel).


The opinion of the court was delivered by

PERSKIE, J. Briefly stated, the dispositive question in this cause is one of jurisdiction of the subject-matter. More specifically stated, the question for decision, is whether the Supreme Court, as is urged, or the Workmen's Compensation Bureau, as was held, had "exclusive original jurisdiction" (R.S. 34:15-49) to entertain and determine appellant's pleaded cause, instituted in the Supreme Court and based upon an asserted agreement allegedly made with respondent pursuant to R.S. 34:15-50.

The material facts which give rise to the posed question are free from dispute.

On November 16th, 1939, Walter S. Zietko, appellant's son, suffered a fatal accident (electrocution) which arose out of and in the course of his employment by Jacques Wolf & Co., a corporation, which held an effective standard workmen's compensation insurance policy of respondent insuring the employer, inter alia, against liability for the death of appellant's son.

Appellant and respondent endeavored "to settle upon and determine the compensation due" to appellant. R.S. 34:15-50. They voluntarily appeared at an informal hearing conducted by a referee in the Bureau who "proposed or recommended" that respondent pay appellant $2.28 a week for $300 weeks ($684), plus the costs of burial ($150), or a total of $834. Although it denied appellant's right to compensation, respondent accepted the proposal for recommendation of the referee in order, as it claims, to avoid costs of litigation. At all events, on or about December 29th, 1939, respondent executed what purports to be an agreement between it and appellant (designated as Form No. 4 by the Bureau) embracing the proposal or recommendation of the referee. Although appellant did not sign the agreement (she was advised by respondent that it was not necessary for her to sign at the time), although she did not cash the seven checks which respondent sent her between December 29th, 1939, and April 10th, 1940, although respondent thereafter stopped payment on those checks, nonetheless the pleaded agreement, with the typed notation thereon that appellant "refused to sign" it, was approved by the Bureau, on January 29th, 1940, on its designated Form No. 6. R.S. 34:15-50. Both the purported agreement and the stated approval thereof were filed with the Workmen's Compensation Bureau.

On April 8th, 1940, appellant filed a dependent's claim petition with the Department of Labor, Workmen's Compensation Bureau, against her son's employer (Jacques Wolf & Co.). Respondent was not made a party defendant in that cause. Appellant's claim petition was dismissed in the Bureau on February 16th, 1943, for failure to prosecute. The disposition of her appeal from that dismissal is still pending in the Bergen County Court of Common Pleas.

In this posture of her case in the Pleas, appellant caused a common law action to be instituted against respondent in the Supreme Court on November 30th, 1943. By her complaint she sought to recover from respondent the sum of $834, this being the amount which the referee in the Bureau had proposed or recommended that respondent pay her. Her asserted right to recovery is specifically rested upon the breach of the alleged agreement (Form No. 4) executed by respondent, and approved by the Bureau (R.S. 34:15-50).

Respondent denied liability. It would serve no purpose to detail the grounds of its denial. It should suffice to observe, generally stated, that by its answer it denied the existence of the alleged agreement between it and appellant because of the latter's refusal to sign that agreement; that appellant repudiated and terminated the alleged agreement, if such in fact existed, when she filed a claim petition against her son's employer, the propriety of the dismissal of which is still to be determined; and that the Supreme Court, therefore, lacked jurisdiction over the subject-matter. Respondent especially set down in its answer two objections and points of law, first, that the Supreme Court was without jurisdiction, and second, that the complaint failed to disclose a cause of action since it did not allege that appellant signed Form No. 4, or in any other manner contracted with respondent to accept the payments therein mentioned.

Appellant replied denying respondent's answer. Respondent then moved to and did bring up for determination its two objections and points of law which, as already observed, it had set down in its answer. After hearing the proofs (by affidavits) and contentions of the respective parties, Circuit Court Judge and Supreme Court Commissioner, J. Wallace Leyden, concluded that respondent's first point of law (lack of jurisdiction in the Supreme Court) was well taken because what appellant in fact claimed was compensation as a dependent of her son who suffered death as the result of a compensable accident, and because the "exclusive original jurisdiction" for such a claim resides in the commissioner, deputy commissioners, and referees. R.S. 34:15-49. He further held that the disposition which he thus made of the first point ...

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