Opinion
Argued May 23, 1940 —
Decided October 10, 1940.
Counsel fees in workmen's compensation cases are a creature of statute, and the existing statute confers no power on the Court of Errors and Appeals to award them.
On appeal from judgment of the Supreme Court in a workmen's compensation case, rendered on certiorari directly to the bureau, the accident having occurred outside of this state. The opinion of Mr. Justice Porter, sitting as the Supreme Court, is as follows:
"This workmen's compensation case was before me for review on a writ of certiorari and an opinion was filed on August 15th, 1939, holding that there was an abundance of testimony before the bureau to support its finding in favor of the petitioner-respondent. From that decision an appeal was taken to the Court of Errors and Appeals. On January 25th, 1940, an opinion was filed in that court remanding the case to this court for the purpose of determining the facts and to reach a conclusion. 124 N.J.L. 228. In my former determination the facts were not found but simply that the testimony before the bureau abundantly supported its finding as above stated. The testimony was reviewed in my said opinion and need not be repeated here.
"In pursuance with the said decision of the Court of Errors and Appeals in remanding the case to this court I find from the testimony adduced before the bureau the following facts, i.e., that Nathan S. Stetser met with an accident arising out of, and in the course of his employment, on August 25th, 1938, which caused his death on August 27th, 1938; that at the time of his said injury he was employed by American Stores Co., respondent-prosecutor; that he was receiving $42.50 weekly wages; that he left surviving him a widow, Mary Irma Stetser, petitioner-respondent, and two minor children, Robert E. Stetser and Charlotte M. Stetser, dependent upon him; that the judgment of the bureau dated April 3d 1939, was therefore correct as to the amount of the awards against the respondent-prosecutor and is affirmed in all respects including counsel fees therein awarded, with costs."
For the appellant, Clarence B. Tippett.
For the respondent, Elmer G. Van Name.
The judgment under review will be affirmed, for the reasons expressed in the opinion of Mr. Justice Porter, ubi supra.
In connection with the appeal, there was an application at the opening of the term "for the allowance of counsel fees for services rendered in the certiorari proceedings instituted by the respondent-appellant in the New Jersey Supreme Court and in the two appeals by the said respondent-appellant to this court." This was held over awaiting arguments of the main case, and is now to be decided.
The right to counsel fees in a case of this kind, and generally with certain exceptions, as for example divorce cases, will cases and administration of trusts, is wholly a creature of statute: Comparri v. James Reading, Inc., 121 N.J.L. 591 ; so that unless the present application has statutory support, it must be denied.
There is no such statutory support. The statute bearing on counsel fees in compensation cases is N.J.S.A. 34:15-67, a cursory reading of which will show that it confers no power on this court to award counsel fees in this class of cases. The motion is therefore denied.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, HEHER, PERSKIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 12.
For reversal — None.