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Buccheri v. Ward

Decided: November 7, 1955.

VINCENT WILLIAM BUCCHERI, PETITIONER-APPELLANT,
v.
MONTGOMERY WARD & COMPANY, RESPONDENT-RESPONDENT



On appeal from the Hudson County Court, Law Division.

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

Oliphant

This is an appeal from a judgment of the Hudson County Court which affirmed a judgment of the Workmen's Compensation Division of the Department of Labor and dismissed the petition of the appellant seeking compensation here on the ground that an award made to the appellant by the New York Workmen's Compensation Board was res adjudicata of the claim presented by the appellant in his petition. The Division had dismissed the petition on the ground that the appellant had made an election of remedies.

The appeal from the judgment of the Hudson County Court was certified on our own motion. R.R. 1:10-10(a).

The appellant was and is a resident of Elmhurst, New York. Six years prior to the accident on which his claim is based he entered the employ of the respondent, Montgomery Ward & Company, in its New York office. At the time of the accident he was employed as an assistant buyer of nightwear and his duties required that he call upon the manufacturers at times to expedite deliveries of merchandise to his employer's many stores. While most of these plants were located in New York and Connecticut, others were located in New Jersey and he testified that he visited the New Jersey plants "ten or twelve times more or less a year." He also testified that his duties required him to visit the retail stores of his employer, but he did not specifically mention stores in New Jersey.

On November 14, 1952 he was driving his car alone on the New Jersey Turnpike on his way to Bridgeton to the plant of M. C. Schrank & Company, one of his employer's manufacturers, that was behind in its deliveries. While on the Turnpike he slowed down because of fog and finally stopped. Almost immediately another vehicle ran into his car from the rear and a chain reaction resulted involving a number of other vehicles. See the third-party action instituted by the appellant here. Buccheri v. Noveree (Docket L 9738-53).

He immediately reported the accident to his employer on his return home and was treated by his own physician and

other doctors supplied by his employer. Because of his injury he remained home for about two weeks during which time he was paid his full salary. Up to the present there has been no loss of further time or salary.

On December 11, 1952 the appellant filed a claim for compensation with the New York Compensation Board under their statute which is an elective one like ours. On March 9, 1953 the claim came on for hearing and the appellant did not appear nor did any one appear on his behalf. Only the employer appeared and he claimed reimbursement for the salary paid. In the course of the proceedings appellant filed a notice that he intended to commence a third-party action as permitted by the New York statute. As indicated this action has been instituted in this State.

On the hearing the referee decided that there was an accident, notice given thereof and causal relation established for a spinal injury. Finding was made of disability from November 18, 1952 to December 1, 1952. On the basis of this finding an award was entered allowing compensation in "the sum of $25.60 for a period of 4/5's weeks from 11/25/52 to 12/1/52 at the rate of $32.00 per week," -- the first week not being compensable. The award confirmed the findings as to the accident, notice thereof and a causal relation established for spinal injuries. The award was entered and the proceeding was marked "Close pending outcome of third party action."

No appeal was taken from this award and the time for appeal has expired. It is also conceded that there was no fraud or misrepresentation by the respondent in the New York proceedings.

The appellant contends that the New York award is not a final judgment since it is subject to future modification and, therefore, not entitled to full faith and credit in any event. We have examined the New York statute, Workmen's Compensation Law, McKinney's Consol. Laws, c. 67, and compared it with ours and we feel an award thereunder is a final judgment in the same sense that we consider a final award in a compensation case in this state a final

judgment. Mangani v. Hydro, Inc., 119 N.J.L. 71 (E. & A. 1937); New Amsterdam Casualty Co. v. Popovich, 18 N.J. 218, 225 (1955). R.S. 34:15-58 of our statute and section 23 of the New York statute, both expressly state that the judgment or award of the Bureau or Board shall be final and conclusive. In both states this judgment may be reopened for a change of condition or circumstance, except that the New York right to reopen is slightly more limited in specific instances as to time and conditions. See sections 22, 25, 123 and 150 of the New York statute. It has been held in New York that once the Board has acquired jurisdiction its determination must be deemed fully conclusive between the parties, and must be treated by all courts as a binding judgment until the Board modifies it. Meany v. Keating, 200 Misc. 308, 102 N.Y.S. 2 d 514 (Sup. Ct. 1951), affirmed 279 App. Div. 1030, 113 N.Y.S. 2 d 240 (App. Div. 1952), affirmed 305 N.Y. 660, 112 N.E. 2 d 763 (Ct. App. 1953).

Appellant contends that the Bureau has jurisdiction and is required to exercise it under prior decisions of our courts in American Radiator Co. v. Rogge, 86 N.J.L. 436 (Sup. Ct. 1914), affirmed 87 N.J.L. 314 (E. & A. 1915), and Davidheiser v. Hay Foundry & Iron Works, 87 N.J.L. 688 (E. & A. 1915). While these cases assert the fundamental principle that no foreign contract or statute, that is obnoxious to the policy as delineated by our Workmen's Compensation Act can defeat the operation of our own act where the injury complained of occurs in this State, we do not consider them apposite to this case because at that time New York had not enacted a compensation act, American Radiator Co. v. Rogge, supra, 86 N.J.L., at page 437, hence the question of a final award was not in issue. The case of Miller v. National Chair Co., 127 N.J.L. 414 (Sup. Ct. 1941), affirmed 129 N.J.L. 98 (E. & A. 1942), is also not ...


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