Freppon v. Hittner

• Decision Date: 04 April 1966
• Docket Number: No. A--756,A--756
• Citation: 91 N.J.Super. 9,218 A.2d 890
• Parties: Frieda FREPPON, Plaintiff-Appellant, v. Rebecca HITTNER, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 9

91 N.J.Super. 9

218 A.2d 890

Frieda FREPPON, Plaintiff-Appellant, v. Rebecca HITTNER, Defendant-Respondent.

No. A--756.

Superior Court of New Jersey Appellate Division.

Argued March 14, 1966.

Decided April 4, 1966.

Solomon Lubow, Jersey City, for appellant (Chazin & Chazin, Newark, attorneys).

Thomas T. Chappell, Jersey City, for respondent (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

Before Judges CONFORD, KILKENNY and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

The question here is whether a domestic employee injured in the course of her work as a result of the negligence of defendant housewife may bring a negligence action against the housewife in the face of the conceded fact that the injury was compensable under the Workmen's Compensation Act. We affirm the trial court's dismissal of the action on motion for summary judgment although we are not in accord with the reasoning by which that result was reached.

Plaintiff was injured while hanging laundry in the back yard of the home when defendant struck her accidentally with her golf club while practicing her golf swing. Accepting the version of the material facts emerging from the proofs most favorable to plaintiff, she was recalled to service with the Hittners (defendant and her husband) after a one-year hiatus following years of prior employment with them. Mr. Hittner phoned her to resume the employment. However, plaintiff testified, Mrs. Hittner 'always took part in everything. She was always there when the discussions were made.' Both Hittners gave her work-directions, but her 'duties are assigned usually by the lady of the house who is there with you most of the time.' She was paid by Mrs. Hittner from funds supplied by Mr. Hittner, the wife not being employed. Plaintiff did general domestic housework, including the care of young children, and 'slept in.'

Plaintiff's action is founded on the theory that she was employed only by Mr. Hittner, not defendant, and that the latter is a 'third person' against whom a negligence action may be brought, notwithstanding the exclusiveness of the compensation remedy as against the employer under N.J.S.A. 34:15--8. In support of this thesis she cites Auten v. Johnston, 115 N.J.L. 71, 178 A. 187 (Sup.Ct.1935), which held that where a housewife engages a domestic servant she is not personally liable as an employer in workmen's compensation, not being deemed to have contracted the engagement on her personal account but solely as agent for her husband, absent proof she hired the servant 'on her own individual credit.' (Id., at p. 75, 178 A. 187).

In the instant matter the trial court ruled for defendant on the authority of Hake v. Greenstein, 86 N.J.Super. 241, 206 A.2d 604 (Law Div.1965), where the household employee was being driven to the home from a bus station by the defendant housewife and sustained injury when the vehicle was in an accident. The reliance there in deciding for defendant was the immunity of a 'person * * * in the same employ as the person injured * * * except for intentional wrong,' created by a recent amendment of the Workmen's Compensation Act. N.J.S.A. 34:15--8, as amended by ...