Pacifico v. Carpenter Steel Co.

23 N.J. Misc. 309 | New York County Court, Essex County | 1945

Flannagan, 0. P. J.

This is an appeal from the "Workmen’s Compensation Bureau making an award in favor of the petitioner from which the petitioner appeals. The appellant complains of the finding of the commissioner upon the question of the amount of disability. He argues that it cannot stand because it does not comply with his view of the legal value and effect of testimony of experts.

Counsel is correct in his view that the finding of the Bureau upon the percentage of disability does not follow the conclusion of any expert for either side but gives a percentage of disability which is between the percentages fixed by the various experts for the two contending parties. Thus, the percentage of disability fixed by the Bureau reflects the opinion of the commissioner alone and does not reflect that of any expert called.

The argument of the appellant seems to proceed upon the assumption that the conclusion of the Compensation Commissioner must conform to the testimony of some expert witness, otherwise it stands unsupported and must fall. With this argument I cannot agree. It would, in practical effect, make expert witnesses judges, some of whose opinions could not be overridden by the constituted judge of the facts and would have to prevail. On some occasions this might be a jury; in this instance, it was the commissioner in the Compensation Court and is the judge in this court in the present trial. The trier of the issues of fact, whether judge or jury, is not bound by expert opinion evidence. He may give such weight or no weight thereto as his judicial opinion decides it merits. Abbott’s Proof of Facts (4th ed.) 877, ¶ 20, and eases therein cited; Hull v. City of St. Louis, Trustee, 138 Mo. 618; 40 S. W. Rep. 89; 42 L. R. A. 1899, particularly note thereunder. His judgment must be based on the entire evidence taken as a whole.

As to the motion to strike the answer as out of time, I am satisfied that the disposition of this motion by the commissioner was the correct one, especially as there is no proof in the record as to when the petition was served on the respondent.. On the whole, I am satisfied with the disposition made by the commissioner and will adopt his findings. A determination may be submitted accordingly under rule 9.