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Raab v. American Casualty Co.

Decided: April 24, 1950.

RAYMOND W. RAAB, PLAINTIFF-RESPONDENT,
v.
AMERICAN CASUALTY COMPANY, DEFENDANT-APPELLANT



On appeal from Passaic County Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

[4 NJ Page 304] Judgment in the Workmen's Compensation Bureau was recovered by Raab against his employer, Mead, for injuries arising out of and in the course of his employment. The award was not paid and proceedings were instituted in the Passaic County Court by petition and an order to show cause to enforce the award against Mead's insurance carrier. After hearing testimony, the court signed

an order and a rule for judgment for the amount awarded by the Workmen's Compensation Bureau. The appeal from that judgment to the Appellate Division of the Superior Court was certified here on our own motion.

Mead was in the electrical contracting business, eighty per cent of which was industrial in nature but which included electrical work in homes, stores and other business establishments. Raab was injured on September 8, 1948, while working in a building being renovated and rebuilt. The building was owned by Mead and had been moved to a new location and was being converted so it would have two shops on the first floor and two apartments on the second floor. This was the first time Mead had undertaken the remodeling or reconstructing of a house owned by himself. It was, however, a profit-making enterprise.

Ten radiators, destined for eventual use on the second floor, were being stored temporarily in a shop on the first floor of the building. Raab sustained his injury while carrying one of these radiators to the second floor. The appellant contends such work was neither electrical work nor incidental or necessary to electrical work within the limitations of the policy in question and that no legal evidence was produced to show it came within this embrasure.

The determination of the Bureau is res adjudicata as to the liability of the employer to pay the award but the judgment so rendered does not preclude the carrier's being heard on the question of its responsibility. The petitioner still has the burden of showing the accident came within the limitations of the contract so as to render the carrier liable. American Mutual Liability Ins. Co. v. Chodosh, 123 N.J.L. 81 (Sup. Ct. 1939); affirmed, 124 N.J.L. 561 (E. & A. 1940). The inquiry in the present case is therefore whether the petitioner has sustained this burden.

The appellant contends the evidence clearly shows the radiators were carried upstairs for installation in the apartment and this had nothing to do with the electrical work. It inferentially admits there is evidence to the contrary but asserts

it was objectionable and should not be considered because the court at various times asked leading questions in reference to it calling for conclusions.

Rule 3:46, abolishing the necessity of exceptions, still requires a party to make known to the court his objection to the action of the court and the grounds therefor. The testimony complained of here was given in response to the court's own inquiries and it is suggested relief should be granted even though the record shows no objection or protest made at the time concerning it.

The requirements of the rule are not relaxed or changed by reason of the circumstances referred to and the obligation of counsel is still the same. A reversal on that score is therefore not justified.

The questioned testimony clearly indicates it was essential to move the radiators to do the electrical work and this conclusion is abundantly borne out and supported by other undisputed evidence, including the appellant's answering affidavit, which contained part of the testimony of the plaintiff in the Workmen's Compensation Bureau, and by testimony given by Mead, the employer, in the ...


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