On rule to show cause why writ of certiorari should not issue.
For the rule, James J. Skeffington.
Contra, Noah Lichtenberg and Patrick F. McDevitt.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
DONGES, J. This is an application for a writ of certiorari to review a judgment of the Workmen's Compensation Bureau awarding the petitioner-defendant compensation for injuries allegedly arising out of and in the course of his employment by the prosecutor. No appeal was taken within time to the Court of Common Pleas and the contention of the prosecutor is that the failure to take the statutory appeal was due to inadvertence and not to any fault upon its part.
The statute, R.S. 34:15-66, provides, "Either party may appeal from the judgment of the commissioner, deputy commissioner, or referee, to the court of common pleas of the county in which the accident occurred, by filing with the secretary of the bureau, and with the clerk of the county where the accident occurred, a notice of appeal. Such notice shall be filed within thirty days after the judgment has been rendered and shall briefly describe the judgment and state the intention of the party to appeal therefrom."
In the instant case the trial before the deputy commissioner was completed on April 10th, 1947, and at the conclusion
of the hearing the deputy commissioner announced his determination in the presence of counsel for the parties as follows: "I find, in view of the testimony, that the petitioner's temporary disability [there being no definite day -- he said just before Christmas] extended to November 30th, 1944, or a period of eleven weeks, at twenty dollars, $220. I find that the permanent disability is twenty-five per cent. of total, 125 weeks at $20, $2,500." He then made provision for allowance of medical bills, counsel fees and stenographic fees.
Under date of April 16th, 1947, the court stenographer who had attended the hearing wrote a letter to the attorneys for the parties setting forth the above quoted portion of the determination. This was written in compliance with the statutory provision, R.S. 34:15-58, that "The official conducting the hearing shall, within fifteen days after the rendering of the judgment, mail to each of the parties a statement of the substance of the judgment." This letter seems to constitute a full compliance with the statute and to give the parties all the notice they were entitled to receive of the outcome of the case. Admittedly this letter was received at the office of the insurance carrier of the prosecutor, which was also the office of the attorney of record, and was there dealt with in the usual course of business.
After discovery of the fact that formal judgment had been entered new counsel was retained to take an appeal to the Common Pleas. Such appeal was taken but was voluntarily dismissed upon discovery that it was out of time.
The formal determination of facts and rule for judgment was filed in the Workmen's Compensation Bureau on May 6th, 1947. It was testified on the depositions taken on the rule to show cause that the practice was that a copy of this rule for judgment be sent to counsel for each party and the secretary of the deputy commissioner testified that, as far as she knew, the usual practice was followed in this case although she had no particular recollection of it. It was testified that no copy of this rule was received by the attorney for the prosecutor and it is suggested that ...