For the petitioner-prosecutor, David Roskein (John A. Laird, of counsel).
For the respondents-defendants, Maurice C. Brigadier.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. This is a workmen's compensation case now in its tenth year of litigation. Certiorari has been allowed to review the determination of the Essex County Court of Common Pleas reversing and vacating the judgment of the Workmen's Compensation Bureau in favor of petitioner-prosecutor. A synopsis of the various judicial determinations involved in the litigation will be of aid in clarifying what is
on the whole a rather confused picture of events. They may be concisely stated as follows:
Patrick Breheny, the prosecutor herein, sustained a compensable accident on May 16th, 1938, while employed by the respondent County of Essex. Breheny filed a claim petition in the Bureau and was successful in securing an award of 40% of total disability on March 15th, 1940. Thereafter, on August 7th, 1940, he filed an application for a pension with the Essex County Pension Commission, and which was granted on February 7th, 1941. In connection with the pension it appears that Breheny and the Pension Commission entered into an agreement that there should be deducted, from the pension moneys paid to Breheny, all amounts received by him under the workmen's compensation award from the insurance carrier, the Bankers Indemnity Insurance Company, one of the respondents herein. During the period that Breheny received compensation payments under the original 40% award made in his favor, such compensation payments were deducted by the County Pension Commission. On September 14th, 1942, Breheny notified the Pension Commission that he had received his final compensation check and would thereafter expect to be paid the full amount of his pension. On February 13th, 1943, Breheny filed a petition for increased disability, and on July 14th, 1943, the disability award was increased to 100% of total by the Bureau. An appeal from the award was taken to the Common Pleas and the judgment of the Bureau affirmed by that court on September 26th, 1944. Certiorari was then resorted to by respondents with the result that the judgment of the Pleas were affirmed by the Supreme Court on April 13th, 1945, 132 N.J.L. 584. Again an appeal was taken to the Court of Errors and Appeals resulting in a unanimous affirmance by that court of the judgment of the Supreme Court, 134 Id. 129; 45 A.2d 700. Not satisfied with the determination of the Court of Errors and Appeals in favor of Breheny, application to vacate the judgment of July 14th, 1943, was made by respondents herein to the Workmen's Compensation Bureau on February 26th, 1946, on the ground that said judgment was void, illegal and against the public policy of the State of New Jersey, it being
claimed that the respondent Bankers Indemnity Insurance Company had acquired newly discovered evidence of the pension payments received by Breheny during the previous litigation, of which fact it had no previous knowledge. Respondents' motion to vacate the judgment was denied by the Bureau on July 8th, 1946, the Commissioner ruling that the judgment of the Bureau as affirmed by the progressive steps through the Court of Errors and Appeals was res adjudicata; that there was no question of public policy involved; that the Bureau had original jurisdiction to entertain the cause, and that the status of Breheny as a pensioner, not having previously been raised by the respondents as a defense, could not then be raised to void the judgment since it was apparent that the matters then urged for the first time did not constitute newly discovered evidence, and further that there was no allegation of fraud. The Commissioner further held that the judgment of the Bureau having been removed to the Essex County Court of Common Pleas on appeal, there was no longer any judgment in the Bureau which it had any power to vacate or disturb. Respondents then appealed from this determination of the Bureau to the Common Pleas and on December 11th, 1946, the order of that court was entered vacating the judgment of the Bureau. It is from the latter determination that the present proceeding emerges.
In the original claim petition and also in the petition for increased disability, the respondent Bankers Indemnity Insurance Company, was directly named as a party defendant. It was proper for the petitioner so to proceed directly against the insurance carrier. Brown v. Conover, 116 N.J.L. 184; 183 A. 304. The original compensation award of 40% of total disability was entered against the County of Essex and the Bankers Indemnity Insurance Company and was paid by the insurance company. The proceedings for increased disability were defended by Bankers Indemnity Insurance Company without any participation on the part of counsel for Essex County. The progressive steps in the litigation, ...