Opinion
Submitted May 29, 1942 —
Decided October 15, 1942.
On appeal from a judgment of the Supreme Court entered on postea after a trial before the Honorable William A. Smith, Circuit Court Judge, without a jury. Judge Smith filed the following opinion:
"This action being regularly upon the list for the September term at the Essex Circuit was on October 27th, 1941, submitted to the court for trial without a jury upon a stipulation of fact, and I find the facts to be as stated in the complaint in so far as admitted by the answer, and as stated in the stipulation of facts.
"The action is brought by the insurance carrier of Parco Products, Inc., against the defendant to recover the amount paid to one Joseph Lisciki, an employee of Parco Products, Inc., who sustained personal injuries arising out of and in the course of his employment with the Parco Products, Inc., the payments having been made pursuant to a compensation agreement entered into between employer and employee.
"The action is brought against the defendant because of a settlement made by the defendant with the employee and the failure on the defendants' part to pay over to the employer out of said settlement the amount paid by the insurance carrier.
"The accident happened and the payments were made prior to 1936, before the pertinent provision of the statute as it now exists (34:15-40) was passed. The rights of the parties are governed by chapter 279, Pamph. L. 1931, p. 704, ¶ 3, which is an amendment of the original paragraph 23 F. This provision of the statute sets out the procedure to be followed where the employer or his insurance carrier desire to be compensated out of the settlement between an employee and a third person liable in an accident for which compensation is made.
"The sharp question presented for the court's determination in this case is whether or not the employer or the insurance carrier filed with the defendant prior to the payment by the defendant to the employee a statement of the compensation agreement and award between the employer and the employee. With regard to this question of filing with the defendants, it appears from the stipulation that on October 16th, 1933, the employer forwarded to the defendant by registered mail with return receipt requested copy of forms one and two, stating the facts with regard to the accident and claim by the employee against the employer. The return receipt was signed on October 18th, 1933, by one J.H. Budd, an employee of the defendant, Walter P. Gardner, trustee. The letter accompanying the copy of forms one and two was addressed to the Pennsylvania Dock and Warehouse Company, Exchange Place, Jersey City, New Jersey, and evidently the envelope was similarly addressed and the return receipt was signed by the Pennsylvania Dock and Warehouse Co., per J.H. Budd.
"On June 11th, 1934, the employer addressed a letter to the Pennsylvania Dock and Warehouse Co., 26 Exchange Place, Jersey City, New Jersey, enclosing a copy of the compensation agreement, which letter was registered with return receipt requested and the return receipt was received back and signed in the name of Pennsylvania Dock and Warehouse Co., per J.H. Budd, under date of June 12th, 1934.
"The defendant paid to the injured employee in settlement of his claim against the defendant and for a general release the sum of $2,500 on October 3d 1934, nearly four months after the mailing of the compensation agreement.
"The statute, chapter 279 of the laws of 1931, paragraph 23 F, as amended, provides as follows in regard to this compensation agreement: `Such employer shall file with the third person or corporation so liable, at any time prior to payment, a statement of the compensation agreement or award between himself and his employee.' The provision of course requires that the person so making the settlement with the employee deduct and pay to the employer, the amount paid under the compensation agreement.
"It is contended on behalf of the plaintiff, that the mailing and acknowledging of the receipt as hereinbefore set forth, is a sufficient filing under the statute requiring the filing of the compensation agreement with the defendant. It is contended by the defendant that this is not sufficient.
"The stipulation states that the trustee denies he ever received the registered communications hereinbefore referred to and further denies he received any knowledge or information concerning their contents from Mr. Budd or from anyone else.
"I find from the stipulation and exhibits attached:
"1. That J.H. Budd was the agent of the defendant for the receipt of mail;
"2. That the copy of the compensation agreement was received by the said J.H. Budd and that this receipt was equivalent to its being received by the defendant;
"3. That the receipt by the defendant of a copy of the compensation agreement is a sufficient filing as is required by section 23 F as amended, chapter 279, Pamph. L. 1931.
"The compensation agreement, having been filed with the defendant prior to the settlement with the employer, the plaintiff is entitled to judgment against the defendant for the amount set forth in the stipulation of $1,206.96."
For the appellant, Kalisch Kalisch (by Isidor Kalisch).
For the respondent, James J. Skeffington and William J. Weliky.
The judgment under review will be affirmed, for the reasons expressed in the opinion of Judge Smith.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, BODINE, HEHER, PERSKIE, PORTER, COLIE, DEAR, RAFFERTY, HAGUE, THOMPSON, JJ. 11.
For reversal — PARKER, CASE, DONGES, WELLS, JJ. 4.