Bendler v. Bendler

• Decision Date: 21 November 1949
• Docket Number: No. A--12,A--12
• Citation: 3 N.J. 161,69 A.2d 302
• Parties: BENDLER v. BENDLER.
• Court: New Jersey Supreme Court

Page 161

3 N.J. 161

69 A.2d 302

BENDLER v. BENDLER.

No. A--12.

Supreme Court of New Jersey.

Argued Oct. 3, 1949.

Decided Nov. 21, 1949.

John A. Laird, Newark, argued the cause for appellant. David Roskein, Newark, attorney.

Roland Vreeland, Newark, argued the cause for respondent. Gerald T. Foley, Newark, attorney.

The opinion of the court was delivered by

HEHER, J.

This cause was certified for appeal by this court, ex mero motu, to the Appellate Division of the Superior Court, where it was pending on appeal from the Hudson County Court, pursuant to Article VI, Section V, paragraph 1 of the Constitution of 1947, N.J.S.A., and Rule 1:5--1 of this Court.

The primary question is whether compensation is recoverable under the Workmen's Compensation Act (R.S. 34:15--7 et seq., N.J.S.A.) by a husband who was injured while serving his wife, at a stipulated weekly salary, in the operation by her of an embroidery business separate and apart from him. The issue was resolved in the negative by the Compensation Bureau and the Hudson County Court.

The husband had no proprietary interest in the enterprise; all the property and assets of the business were the sole and separate estate of his wife. It is conceded that the injury was the result of an accident arising out of and in the course of the service. The mishap occurred while the husband was operating an automobile in the pursuit of his work; and the inquiry is as to the existence of the relationship between the husband and wife which is made a sine qua non in the definition of the statutory class.

The question is fundamentally one of contractual capacity, for the obligations of the optional or elective compensation provisions comprised in Article II of the Compensation Act are thereby constituted an integral part of the contract of hire between a master and his servant, and so are contractual in nature. 'Employer' is declared in Article 3 to be synonymous with master; and 'employee' synonymous with servant, 'and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments,' as therein defined. R.S. 34:15--36, N.J.S.A. In common usage, one cannot be an employee without a contract. Employment ordinarily presupposes a contractual relation. In re Humphrey's Case, 227 Mass. 166, 116 N.E. 412, L.R.A.1918F, 193 (1917). But there is more to render certain the statutory concept. The elective scheme becomes operative only upon its acceptance by mutual 'agreement, either express or implied,' as therein provided. R.S. 34:15--7, N.J.S.A. Such 'agreement' constitutes 'an acceptance of all the provisions' of the Article and a surrender by the parties of 'their rights to any other method, form or amount of compensation or determination thereof than as' therein provided. R.S. 34:15--8, N.J.S.A. Barring 'an express statement in writing' as 'a part' of the 'contract of hiring * * *, either in the contract itself or by written notice from either party to the other,' that the provisions of Article II are not 'intended' to apply, it is 'presumed that the parties have accepted the provisions' of the Article, 'and have agreed to be bound thereby.' R.S. 34:15--9, N.J.S.A. The 'contract for the operation of the provisions' of the Article is terminable by either party upon sixty days' notice in writing 'prior to any accident.' R.S. 34:15--11, N.J.S.A. The term 'hire' has reference to the act of engaging the services of a person for compensation.

Compulsory compensation without regard to fault, in lieu of the common-law liability for negligence, confined to certain gainful occupations denominated 'hazardous employments', has been treated as within the reserve police power of the State. The loss of earning power is considered an expense of the common enterprise, just as much so as the repair of broken machinery or other expense falling upon the employer; and the substitute compensatory scheme is sustainable as a reasonable measure grounded in natural justice to serve the general welfare. New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629 (1916); Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 264, 61 L.Ed. 685, Ann.Cas.1917D, 642 (1917); Ward & Gow v. Krinsky, 259 U.S. 503, 42 S.Ct. 529, 66 L.Ed. 1033, 28 A.L.R. 1207 (1922); Madera Sugar Pine Co. v. Industrial Accident Comm., 262 U.S. 499, 43 S.Ct. 604, 67 L.Ed. 1091 (1923).

There can be no doubt that the elective system of compensation provided by Article II is in essence contractual. This is so whether the provisions of that Article be deemed the subject of a true contract grounded in the will of the parties, either express or implied in fact, or an obligation which has its source in the statute irrespective of the will of the parties in the particular case, and so a quasi contract or a contract 'implied by the law.' Unless there be an affirmative rejection of the plan for the alternative common-law liability in tort as modified by the provisions of Article I of the Act, either at the outset or later, there is a conclusive presumption that the parties 'have accepted the provisions' of the Article and 'have agreed to be bound thereby'; and thus by operation of law, if not by the genuine assent of the parties, the provisions of Article II become engrafted into the basic contract of hire and so become a component part of it. It is not indispensable that there be reality of consent embracive also of the terms of Article II expressed in words or implied by acts and circumstances; the whole constitutes the contract. But the requisite statutory relationship is non-existent unless it arises from a contract of hire, express or implied in fact. While there may not be a conditional acceptance of Article II, its provisions are in no real sense compulsory; the alternative is Article I, providing compensation for negligence and abolishing the defenses of contributory negligence and assumption of risk in the exercise of the general legislative jurisdiction to grant reliefs and remedies in substitution for those afforded for injuries attributable to the master's fault. Sexton v. Newark Dist. Telegraph Co., 84 N.J.L. 85, 86 A. 451 (Sup.Ct. 1913), affirmed 86 N.J.L. 701, 91 A. 1070 (E. & A. 1914); Winfield v. Erie Railroad Co., 88 N.J.L. 619, 96 A. 394 (E. & A. 1916); Troth v. Millville Bottle Works, 89 N.J.L. 219, 98 A. 435 (E. & A. 1916); Steinmetz v. Snead & Co., 123 N.J.L. 497, 9 A.2d 801 (Sup.Ct. 1939), affirmed 124 N.J.L. 450, 12 A.2d 678 (E. & A. 1940), affirmed 311 U.S. 605, 61 S.Ct. 12, 85 L.Ed. 383; Miller v. National Chair Co., 127 N.J.L. 414, 22 A.2d 804 (Sup.Ct. 1941), affirmed 129 N.J.L. 98, 28 A.2d 125 (E. & A. 1942); American Radiator Co. v. Rogge, 86 N.J.L. 436, 92 A. 85, 94 A. 85 (Sup.Ct. 1914), affirmed 87 N.J.L. 314, 93 A. 1083 (E. & A. 1915), error dismissed 245 U.S. 630, 38 S.Ct. 63, 62 L.Ed. 520 (1917). It was the province of the Legislature in this manner to regulate contracts of hire and 'to determine the incidents of such relationship, under the statutory contract or obligation.' Young v. Sterling Leather Works, 91 N.J.L. 289, 102 A. 395, 397 (E. & A. 1917).

Thus it is that the right of compensation under Article II is grounded in a true contract of hire as supplemented by the terms of that enactment. The contract of hire is a basic prerequisite; and unless it comes into being by the mutual assent of the parties, Article II does not become operative. There is in that circumstance no contract to which the terms of the Article can attach as a constitutent element. The evident legislative design was the incorporation, in default of adverse action by the parties, of the compensatory system provided by Article II into the common-law contract of hire and where, as here, there was no such relationship for want of contractual capacity, these provisions of the Compensation Act have no operative force whatever. It was not intended to alter the essential character of the relationship between master and servant, but rather to substitute, at the will of the parties, a method of compensation for injury without fault in lieu of the common-law rights and liabilities for all employees of the statutory class; and the corollary is that there be a conventional contract of hire, for without it the relation of master and servant does not subsist. The Act had its origin in the general experience that the common-law remedy for negligence did not afford adequate protection for the workmen, and that their welfare and the common interest as well would be served if indemnity for the risks of service, even without fault, should be made to fall upon industry as an incident of the operation and eventually upon the consumer. In a word, the Act provides 'social insurance' superimposed upon a real contract of hire. Young v. Sterling Leather Works, supra.

But a contract of hire between spouses is utterly void and unenforceable at law. The acts empowering a married woman to bind herself by contract as if a feme sole, and to sue and be sued in her own name, apart from her husband, have not so far severed the unity of person and interest of husband and wife in the law as that their contracts inter se are enforceable at law and are no longer the subject of jurisdiction in courts of equity alone. The disablement of husband and wife to contract with and to sue each other continues 'except as heretofore, and except as authorized' by the provisions of the chapter relating to married persons embodied in the Revision of 1937. Pamph.L. 1852, p. 407; Revision of 1874, p. 468, sections 5, 10, 11, 14; Revision of 1877, p. 638, sections 5, 10, 11, 14; Pamph.L. 1895, p. 821; Comp.Stat. 1910, p. 3226, sections 5, 10, 11, 14; Pamph.L. 1934, p. 490; R.S. 37:2--5, 37:2--6, 37:2--16, N.J.S.A. Vide Alpaugh v. Wilson, 52 N.J.Eq. 424, 28 A. 722 (Ch. 1894), affirmed 52 N.J.Eq. 589, 33 A. 50 (E. & A. 1894); Turner v. Davenport, 61 N.J.Eq....