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Ermola v. Hudson Paint and Varnish Co.

Decided: June 30, 1961.


Yancey, J.c.c.


The petitioner is the widow of decedent, who was an employee of respondent The Hudson Paint and Varnish Co. The decedent was last employed on December 17, 1952 as a varnish cook, in which work he handled various chemicals and oils which caused him to be exposed to noxious and irritating fumes, gases and smoke. From this exposure he developed pulmonary tuberculosis which caused him to become disabled. He was awarded compensation in his own right. On December 17, 1952, the last date of employment and exposure, the dependency benefits were to be paid at the scheduled rate for 300 weeks, and funeral allowances were set as $250 under N.J.S.A. 34:15-13. In 1957 this statute was amended to provide dependency benefits for 350 weeks and a funeral allowance of $400. The decedent died in 1958 and it was determined that his death was causally related to his employment with respondent. The Workmen's Compensation Division awarded petitioner dependency benefits at the amended rate in effect at the decedent's death, which were for 350 weeks, and funeral allowances of $400. Respondent appeals and questions the propriety of the award made pursuant to the 1957 statutory amendment, and argues that petitioner should have been awarded dependency benefits at the scheduled rate for 300 weeks and funeral allowances of $250, which were in effect on the last day of employment.

The right to compensation provided for the petitioner-appellee herein as a dependent of the deceased employee is

created by N.J.S.A. 34:15-13. N.J.S.A. 34:15-12 provides compensation benefits to the injured employee himself. It is well established that the rights of dependents to compensation are independent and separate, flowing to them from the Workmen's Compensation Act itself. Eckert v. New Jersey State Highway Department , 1 N.J. 474 (1949). Notwithstanding the above rule, the dependents as well as the employee must look back to the terms of the entire contract for their rights, expressed and implied by law, at and during the entire time of the employment.

The petitioner-appellee's award was based, not on N.J.S.A. 34:15-13 in effect December 1952, but on the amendment effective January 1, 1957, L. 1956, c. 141. As set forth in the respondent's brief:

"The prime issue, simply put, is -- is respondent's liability for dependency benefits and burial allowance assessable by the statute in effect at the time decedent suffered his compensable occupational condition and last worked for it, in December 1952, or under the statute as it was at the time of his death in 1958, by reason of the 1957 amendment?"

It would appear that the deputy director applied the aforesaid amendment retroactively in making his decision. If this be so, it is unconstitutional in view of Art. IV, ยง 7, par. 3 of the New Jersey State Constitution, which states:

"The Legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made."

An examination of numerous appellate decisions which concern themselves with the nature of a workmen's compensation action indicate that in the early years of the operation of the New Jersey Workmen's Compensation Act, it was sometimes said that the nature of the liability was ex contractu or ex delicto or quasi -contractual. Today there is little doubt that our courts have adopted ex contractu theory. In New Amsterdam Casualty Co. v. Popovich , 18 N.J. 218

(1955), at page 226, it was emphatically held that the liability under the act is ex contractu and not ex delicto. In the recent and very comprehensive opinion of Biglioli v. Durotest Corp. , 26 N.J. 33 (1958), our Supreme Court premised much of its conclusion upon this principle. It refers to prior cases which likewise premise their conclusions upon the contractual relationship. In Heldrich v. American Incubator Mfg. Co. , 104 N.J.L. 492 (1928), at page 495, the former New Jersey Supreme Court stated:

"The whole scheme of workmen's compensation rests upon a contractual basis whereby employer and employee voluntarily enter into a relationship carrying with it certain rights and certain obligations. These rights and obligations are necessarily agreed to in ...

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