On appeal from the Superior Court, Appellate Division.
For affirmance -- Justices Case, Heher, Oliphant and Ackerson. For reversal -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Case, J. Heher, J. (concurring). Wachenfeld, J. (dissenting). Heher, J., concurring in result.
[3 NJ Page 43] This is a workman's compensation case. The appeal comes to us from the Appellate Division of the Superior Court, whose opinion is reported in 2 N.J. Super. 146.
The facts are recited there at length and need not be repeated. That court found factually that there was no event or happening in the decedent's work beyond the mere employment itself which brought about the final result, that there was no cardiac disturbance within a period sufficiently near the death to persuade the court, under the medical proofs, that the fatal myocardial infarction was attributable to any unusual strain or exertion of the employment, and that consequently the death did not result from an accident arising out of and in the course of the employment. There were proofs to sustain that factual finding. The appeal from the Workmen's Compensation Bureau to the Hudson County Court of Common Pleas was taken on September 4, 1947. The case, therefore, arose under the old constitution. The fact that there was a dissent in the Appellate Division from the decision of the court does not alter the fact that the court did determine the issue, and determined it by the judgment under appeal. This court will not weigh the evidence in this type of case arising under the old constitution, and where a question of fact was presented by the proofs below and determined, the judgment of that court is conclusive in this court and will not be reversed. Grant v. Grant Casket Co., 2 N.J. 15.
Appellant, in her reply brief, for the first time in any of the proceedings, contends that the appeal from the Bureau to the Common Pleas Court was mistakenly taken, and this upon the alleged ground that the accident happened on the New York side of the Holland Tunnel and that, therefore, anything in the nature of a review should have been by writ of certiorari directed by the former Supreme Court to the Bureau and that consequently the Court of Common Pleas was without jurisdiction to receive the appeal; and, further, that inasmuch as the statute, R.S. 34:15-66 as amended by P.L. 1945, c. 74, p. 397, directed that the determination by the Court of Common Pleas should be made within ninety days after the filing of the transcript and the determination was not made within that ninety day period, the appeal was nullified and the jurisdiction in the Common Pleas was lost.
We pass by the untimeliness of that presentation and dispose of the questions on their merits.
The controlling factor in determining whether the appeal did or did not properly go to the Court of Common Pleas is the place where the accident happened. R.S. 34:15-66; Frank Desiderio Sons, Inc., v. Blunt, 11 N.J. Misc. 494 (Sup. Ct. 1933); Steinmetz v. Snead & Co., 123 N.J.L. 138 (Sup. Ct. 1939). Although death suddenly struck the decedent while he was driving on the New York side, the incidents which are counted upon as an accident all occurred within the State of New Jersey. The suggestion that the decedent's remarks about pain were directed toward pain then present is not supported by the proofs. There was nothing in the driving of the truck with its trailer through so much of the tunnel as lies within the State of New York that varied in the slightest degree from the usual incidents of the employment or that involved any unusual physical or mental exertion. Moreover, assuming, for the purposes of the argument, that the case should not have been moved to the Common Pleas but should have been taken direct by certiorari to the Supreme Court, the appellant was not harmed because the case was decided on appeal by the body which succeeded the Supreme Court in that jurisdiction. The Appellate Division, acting in the stead of the former Supreme Court, made the decision.
The direction of the statute that the determination of the county court shall be made within ninety days after the filing of the transcript is directory. Ten Eleven Corporation v. Brunner, 135 N.J.L. 558 (Sup. Ct. 1947); Weinberger v. Erie Railroad Co., 86 N.J.L. 259 (E. & A. 1914). The weakness of the contention that the statutory direction is mandatory and that non-performance automatically results in a dismissal of the appeal becomes the more obvious if one poses the case that a claimant loses in the Bureau and upon appealing to the county courts is awarded a reversal after the ninety day period. We have no idea that the right of recovery under the Workmen's Compensation Act was intended by the Legislature to be denied the claimant
by the failure of the county court to observe the statutory period in filing its decision. The same reasoning must be applied to both sides.
We conclude that the judgment below should ...