
    FRANK DiMIERI, DEFENDANT-RESPONDENT, v. METAFIELD, INC., PROSECUTOR-APPELLANT.
    Submitted October 31, 1941 —
    Decided January 9, 1942.
    For the prosecutor-appellant, John W. Taylor and Harry E. Walburg.
    
    For the defendant-respondent, Fleming & Potter.
    
   Per Curiam.

This is an appeal from a judgment of the Supreme Court on certiorari affirming an award in favor of a workman in a case of hernia resulting from strain. The opinion of Chief Justice Brogan for the Supreme Court applied the proper rules of law and we approve of his definition of “conclusive proof” as used in the pertinent section of the Workmen’s Compensation Act, R. S. 34:15-12(x).

The judgment is affirmed.

Colie, J.

(Dissenting.) I am unable to agree with the majority opinion approving the definition of “conclusive proof” as laid down by the Supreme Court, i. e., “that the fact finder, after hearing the evidence in support of the claim and contrasting and weighing it with the evidence produced to rebut it, is clearly of the view that the claim has been sustained by proof that is convincing in character.” The quoted definition reduces the degree of proof below the standard established by the legislature. However desirable the result may be in a particular case, desirability is no warrant for the judicial branch of the state government to usurp the function of the legislative branch. For a court to construe a statute in a manner that nullifies the clear legislative intent is legal error and establishes a precedent which opens wide the door to unlimited encroachment on the legislative prerogative. Such is the effect of the court’s decision in this case. For the reason above stated, I am for reversal.

Mr. Justice Case has authorized me to say that he acquiesces in this opinion.

For affirmance — The Chancellor, Bodine, Donges, Hei-iee, Poetee, Deae, Wells, WolesKeil, Raeeeett, Hague, Thompson, JJ. 11.

For reversal — Case, Colie, JJ. 2.  