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Schwarz v. Federal Shipbuilding and Dry Dock Co.

Decided: October 18, 1954.

JOHN J. SCHWARZ, PETITIONER-APPELLANT,
v.
FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, DEFENDANT-RESPONDENT, AND EMILY NIXON SCHWARZ, PETITIONER-APPELLANT, V. FEDERAL SHIPBUILDING AND DRY DOCK COMPANY, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division, whose opinion is reported in 29 N.J. Super. 374.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J.

Oliphant

This is an appeal from a judgment of the Appellate Division, Superior Court, 29 N.J. Super. 374, reversing a judgment of the Hudson County Court which had affirmed an award of the Workmen's Compensation Division wherein compensation on the two petitions filed in this case was allowed. We granted certification, 15 N.J. 379, on petitions of the claimants, R.R. 1:10-2(d).

The question presented is whether the Workmen's Compensation Division had jurisdiction to entertain the petitions under the time limitation prescribed by the statute. The Appellate Division held that the time had tolled and the Division therefore lacked jurisdiction.

The relevant statutory provisions are:

R.S. 34:15-41 which provides:

"In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed * * * as prescribed by section 34:15-51 * * *."

and R.S. 34:15-51 which provides:

"Every claimant for compensation * * * shall * * * file a petition in duplicate with the secretary of the bureau * * * within two years after the date on which the accident occurred, or in case an agreement for compensation has been made between the employer and the claimant, then within two years after the failure of the employer to make payment pursuant to the terms of such agreement; or in case a part of the compensation has been paid by the employer, then within two years after the last payment of compensation. Any payment made in accordance with the provisions of article 2 of this chapter (ยง 34:15-7 et seq.) shall constitute an agreement for compensation. * * *"

On November 2, 1943 the decedent assisted by a fellow worker was attempting to turn a heavy transom locker when it fell, striking him in the groin and testicles and pinning him to the floor. There is no dispute as to the fact of the accident.

The appeal involves two awards and two separate petitions. The first petition was filed by the decedent in his lifetime on February 7, 1947, seeking compensation for disability;

and the second petition was filed by the decedent's widow on August 26, 1947, seeking to recover dependent's benefits by reason of her husband's death on June 3, 1947. ...


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