McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
The petitioner appeals from the judgment of the Passaic County Court affirming a judgment entered in the Division of Workmen's Compensation dismissing petitioner's claim for compensation.
The county court judge on November 13, 1950, filed an opinion as follows: "The appeal in the above case is dismissed and the Judgment of Dismissal entered by the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, is affirmed for the reasons set forth by Deputy Director Kerner." In addition the judgment, entered November 21, 1950, recited that the county court "has independently reached the same conclusions as the Deputy Director, and for the same reasons as set forth in the said Determination of Facts and Rule for Judgment of Dismissal filed by the Deputy Director, which moved the said Deputy Director to dismiss, and which for the sake of brevity are here not repeated, but are incorporated therein by reference, (and this court) now determines * * * that the legal evidence adduced does not establish by a fair preponderance that the cerebral hemorrhage was the result of any accident arising out of and in the course of petitioner's employment."
If it be assumed that the statute, R.S. 34:15-66, sanctioned the adoption by the county court judge of the deputy director's conclusions, such is no longer the correct practice following the adoption of Rule 5:2-6. That rule is not involved in this case because it did not become effective until December 7, 1950, several weeks after the entry of the judgment on appeal. However, because of its significance as to the manner of disposition of workmen's compensation appeals in the county courts, we shall avail ourselves of this opportunity to comment upon it.
The rule requires that factual determinations necessary to be made on the appeal are to be made in the form of an independent and original opinion written by the county court judge. This is implicit in the provision that "the court shall prepare and file * * * a determination of facts and
judgment." The requirement relates, however, only to factual issues raised by "the points involved in the appeal"; it is as to them that the judge has the duty to set down "the basic reasons for decision." The opinion must also "embody * * * the non-issuable facts necessary for decision on the whole of the issue," but these are arrived at by the filing and service by the parties of statements and counter-statements of such facts in manner prescribed by sections (b) and (c) of the rule. The opinion is to be a separate document and is not to be made part of the final judgment. The final judgment is "entered thereon" in the same manner as in other actions tried in the county court.
The rule perforce makes no longer authoritative the decisions under the former practice holding that the determinations of the former court of common pleas in workmen's compensation cases need not be specific. Dreyfus v. Lutz Co. , 6 N.J. Misc. 608 (Sup. Ct. 1928), affirmed 106 N.J.L. 566 (E. & A. 1929); Fontaine v. United Engineers and Constructors, Inc. , 12 N.J. Misc. 220 (Sup. Ct. 1934); Charlock v. M.W. Kellogg Co. , 4 N.J. Misc. 260 (Sup. Ct. 1926); and see Gianfrancisco v. Public Service Coord. Transport , 11 N.J. Misc. 219 (Sup. Ct. 1933).
The reasons for the provisions of Rule 5:2-6 are obvious. As to factual issues implicated in the points involved in the appeal to the county court, the review by that court is not a hearing upon claimed errors of the deputy director with resultant affirmance, modification or reversal of the judgment entered by him. In other words, the county court does not merely pass upon alleged legal errors. The case is heard de novo by the county court upon the factual matters necessary to decision of the points on appeal, that is, there is a new trial upon such matters, although based exclusively upon the transcript of the record and testimony before the deputy director. R.S. 34:15-66. The judgment brought here for review is not that of the Division of Workmen's Compensation but that entered by the county court. The duty of the county court judge is "to bring a new mind to the
consideration of the transcript of the record and testimony in the cause" so far as the same pertains to the points involved in the appeal. Gagliano v. Botany Worsted Mills, Inc. , 13 N.J. Super. 1 (App. Div. 1951). The requirement under the rule of an original determination in the form of the county court judge's own written opinion upon the fact and law questions involved in the issues on appeal is in keeping with the spirit and intent of the principle that a "new mind" shall be brought to bear upon the record.
Its value is illustrated by one of the matters argued on this appeal. The carefully prepared determination of the deputy director earned the deserved commendation of the county court judge. Nonetheless, the deputy director fell into legal error in viewing as substantive proof the contents of a statement in evidence offered by respondent to contradict the testimony of petitioner's witness, Clark, who gave respondent the statement. The contents of the statement, while usable on cross-examination to attack Clark's credibility and admissible in evidence for that purpose, were not substantive evidence in the case. Kulinka v. Flockhart Foundry Co. , 9 N.J. Super. 495 (Cty. Ct. 1950) and cases cited therein. We have concluded that the error did not injuriously affect the substantial rights of the petitioner. We cannot, however, escape the conviction that the county court judge, too, would have detected the error and have given us the benefit of his views had he prepared his own determination upon the facts and law instead of adopting the deputy director's conclusions.
Furthermore, the mandate of the rule is an essential corollary of the practice followed by us not to exercise our power to make independent findings of fact unless we are satisfied that the interests of justice require it and to accord determinative weight in the first instance to the factual findings of the county court. Donofrio v. Haag Brothers, Inc. , 10 N.J. Super. 258 (App. Div. 1950); McGowan v. Peter Doelger Brewing Co. , 10 N.J. Super. 276 (App. Div. ...