Butler v. Eberstadt

• Citation: 175 A. 159
• Decision Date: 05 October 1934
• Docket Number: No. 11.,11.
• Parties: BUTLER v. EBERSTADT.
• Court: New Jersey Supreme Court

175 A. 159

BUTLER

v. EBERSTADT.

No. 11.

Court of Errors and Appeals of New Jersey.

Oct. 5, 1934.

Appeal from Supreme Court.

Suit by Mary Butler against Rudolph Eberstadt From a judgment for plaintiff, defendant appeals.

Reversed.

Thomas P. McKenna, of Long Branch (Theodore D. Parsons, of Red Bank, of counsel), for respondent.

Wall, Haight, Carey & Hartpence, of Jersey City (John A. Hartpence, of Jersey City, of counsel), for appellant.

BROGAN, Chief Justice.

The plaintiff below, Mary Butler, was awarded damages at the Monmouth county Supreme Court circuit for personal injuries received in an automobile accident. The defendant appeals from the judgment entered thereon.

From the record in this case, it appears that the plaintiff entered the service of the defendant on May 27, 1981, as a cook. She testified she merely went to the home of the defendant on that day to prepare lunch because of the illness of the regular cook and that after lunch Mrs. Eberstadt, wife of the defendant, asked her if she would not continue her service for a few days and accompany the family of the defendant to the summer home on Long Island over Decoration Day. The plaintiff agreed and went to Long Island for the time requested and on Sunday, May 31st, on the return trip from Long Island, the defendant's automobile, driven by his chauffeur and carrying as passengers the plaintiff and three young children of the defendant as well as a nursemaid, collided with another machine on the Harrison-Kearny Turnpike in Hudson county, N. J., as a result of which the plaintiff sustained serious injuries. Thereafter on September 12, 1932, she brought this suit against the defendant, the employer, in the Supreme Court, for damages for the injuries received on the theory that her employment being, as she claimed, casual in character, afforded her a common-law action since she was outside that class of employees entitled to compensation under section 2 of our Employers' Liability Act, chapter 95, P. L. 1911, as amended (Comp. St Supp. 1924, §**236—7 et seq.; Comp. St. Supp. 1930, § **230—11 et seq., and N. J. St. Annual 1931, § **236—11 et seq.). Subsequently, on May 27, 1933, four days before the time limit, fixed by that statute (supra) for the filing of claims for compensation, would have expired, a petition for compensation was filed by her in the compensation bureau. Obviously, this course was pursued by the plaintiff as a measure of caution to keep alive her claim if it should be determined in the Supreme Court that she was a regular employee of the defendant and therefore entitled to compensation, as provided by the statute.

The defendant answered the petition filed in the compensation bureau and admitted that compensation was payable in the case. The defendant thereupon amended his answer already filed in the Supreme Court action, by annexing thereto a copy of the petition for compensation and a copy of his answer admitting that compensation should be paid and reiterated the defenses already pleaded that he was not liable for damages sustained by the plaintiff through any act or default, if any there was, on the part of the chauffeur, since they were fellow servants. The answer further averred that the plaintiff was a regular and not a casual employee, having been hired for a month at a fixed salary; that she was injured by an accident arising out of and in the course of her employment; and that the provisions of the Employer's Liability Act applied to her and that her claim should be sent to the compensation bureau for determination as to the amount of compensation.

When the case was reached for trial at the Monmouth circuit, the defendant moved that this common-law action be dismissed for lack of jurisdiction which motion was denied. This denial is presented as one of the grounds of appeal. It is also argued by the appellant that the trial court should, as a matter of law, at the end of the entire case, have ruled that the employment of the plaintiff was regular and not casual and that therefore the action should have been dismissed or a verdict directed for the defendant on this ground. Both these questions may be treated together. The trial court correctly disposed of these motions. It is true that the compensation bureau, under the statute as supplemented (chapter 149, § 3, P. L. 1918, p. 430 [Comp. St. Supp. 1924, § **236—44]), has sole jurisdiction to award compensation to an injured employee whose injury arose out of and in the course of the employment, in cases where the employment admittedly is or is determined by the bureau to be regular, and this jurisdiction is exclusive. It is likewise true that the bureau was completely competent to determine this preliminary question, that is, whether the employment was regular or casual—if the plaintiff had in the first instance come to that forum for a determination of that question, and, if her employment was casual, her petition would have been dismissed. Thereafter she would have the privilege of instituting suit in a law court if she wished.

In the bureau the referee, representing the commissioner of labor, is judge of both law and fact. In a common-law court, a jury determines the fact. The judge is powerless to do so. Therefore, as to a preliminary question of this character, the jurisdiction of the compensation bureau and a common-law court is coequal. Since then the plaintiff's cause of action depended upon the character of her employment, whether casual or regular, and that was a fact question, it follows that the court was without power, in limine, to dismiss the plaintiff's suit at law of., Boyle v. Van Splinter, 101 N. J. Law, page 89, 127 A. 257.

As to the second question, that the trial court should, as a matter of law, at the end of the plaintiffs case or at the end of the entire case, have dismissed the action or directed a verdict for the defendant on that ground, viz., that the employment was regular, the appellant relies upon the statute (supplement P. L. 1918, supra) which provides that "the Commissioner of Labor * * * shall have exclusive original jurisdiction of all claims for compensation arising under the act to which this act is a supplement," etc. This provision does not support the appellant's argument. It means this and only this, that where claims are made for compensation in cases arising under the statute, the bureau shall have jurisdiction, exclusively to hear and determine them. It has this exclusive jurisdiction where a claim for compensation is made by an employee, comprehended by the statute, against the employer and applies solely to the hearing and determination of that class of litigation. As has been said, the bureau also might have decided the question of the character of this plaintiffs employment and if it was found to be casual the bureau could proceed no further with the cause any more than a common-law court could award compensation for injuries after it had been there determined that a plaintiff's employment was regular and was controlled either expressly or impliedly by section 2 of the statute (Comp. St. Supp. 1924, § **236—7 et seq.).

There is no dual jurisdiction in the bureau and a common-law court to award compensation to employees who come within the provisions of section 2 of the statute. That jurisdiction is the exclusive prerogative of the compensation bureau, and, conversely, the bureau is not empowered to award compensation or damages to employees who by act of the parties, employer, and employee come within the provisions of section 1 of the statute (Comp. St. Supp. 1924, § **236—1 et seq.). This is the exclusive prerogative of a law court. Here the plaintiff testified to facts that would entitle a jury to believe that her employment was casual, while the defendant supplied testimony that could support a finding that the employment was regular. In this discrepant state of the testimony the determination of the point in dispute was for the jury. Therefore the court committed no error in refusing to dismiss before the case was tried or in refusing to direct a verdict in favor of the defendant on that ground.

The next ground of appeal charges that the trial court erred in ruling as a matter of law that the "fellow-servant" doctrine did not apply and was not a bar to the plaintiff's action. The court in this respect charged the jury as follows: "There was some suggestion that she, the plaintiff, and the chauffeur were involved in a common employment. I am not submitting that question to you, because it is not before you, and I have held as a matter of law that her right to recover, if you so find under the other phases of the law and the evidence, would not be prevented because she was employed by Mr. Eberstadt in his household and the chauffeur likewise was in his employ."

An appropriate exception to this part of the charge was stated on the record by counsel for the defendant.

Immediately prior to the charge of the court, there was a motion for a directed verdict for the defendant on the ground that Mrs. Butler was the fellow servant of Lauder, the chauffeur, which...