Jacobs, Eastwood and Donges. The opinion of the court was delivered by Donges, J.s.c. (temporary J.A.D.).
This is an appeal from a judgment entered in the Essex County Court.
There is no dispute as to the facts in this case. The petitioner's decedent, an employee of the New Jersey State Highway Department, was fatally injured on April 26, 1948, as the result of an accident arising out of and in the course of his employment.
The accident was caused by the negligent operation of an automobile owned by a person not connected with the decedent or the State Highway Department.
Thereafter, the petitioner and the respondent entered into an agreement whereby the respondent paid the petitioner the sum of $250 for funeral expenses, and further agreed to pay compensation for a period of 300 weeks at the rate of $18.31 per week, totaling $5,495.
Meanwhile, petitioner retained the services of an attorney to represent her in an independent action against the person responsible for the death of decedent. This suit was settled for the sum of $7,500, out of which the attorney took $1,500 as his fee.
The respondent has paid to petitioner the sum of $1,519.73 in compensation plus $250 for the funeral expense. Petitioner claims that she is not required to reimburse the respondent
for the $250 funeral expense. The Deputy Director of the Workmen's Compensation Bureau ordered full reimbursement of all money paid by respondent, including the $250 funeral expense. The County Court reversed this judgment as to the funeral expense, and the State Highway Department has appealed to this court.
The question to be determined is whether an employer, who pays the sum of $250 towards the funeral bill of a decedent, pursuant to R.S. 34:15-13 as amended by P.L. 1945, c. 74, p. 387, § 6, is entitled to be reimbursed for that amount, when recovery is had from a third person for the death of the employee.
Respondent's contention is based upon the provisions of R.S. 34:15-40 (b) which provides as follows:
"If the sum recovered by the employee from the third person or corporation, after the expenses of suit and attorney's fee or either of them, as hereinafter defined, have been deducted therefrom, is equivalent to or greater than the liability of the employer or his insurance carrier under this statute, the employer or his insurance carrier shall be released from such liability and shall be entitled to be reimbursed, as hereinafter provided, for the medical expenses incurred and compensation payments theretofore paid to the injured employee or his dependents."
The precise point raised here has not been decided before by our courts. However, the respondent relies upon the case of Prudential Insurance Company v. Laval , 131 N.J. Eq. 23 (Ch. 1942). While the facts were somewhat similar to the present case, the question here involved was neither raised nor decided. The court, in computing the amount of reimbursement, included the funeral bill. However, since the ...