Gregutis v. Waclark Wire Works

• Decision Date: 16 November 1914
• Docket Number: No. 111.,111.
• Citation: 86 N.J.L. 610,92 A. 354
• Parties: GREGUTIS v. WACLARK WIRE WORKS.
• Court: New Jersey Supreme Court

92 A. 354

86 N.J.L. 610

GREGUTIS

v. WACLARK WIRE WORKS.

No. 111.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1914.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Eva Gregutis, administratrix, against the Waclark Wire Works, a corporation. From judgment for defendant (91 Atl. 98), plaintiff appeals. Affirmed.

John J. Stamler, of Elizabeth, for appellant.

Kalisch & Kalisch, of Newark, for appellee.

TRENCHARD, J. This action was brought by the administratrix of the decedent to recover, under the Death Act (P. L. 1848, p. 151; 2 Comp. St. 1910, p. 1907), damages for his death. The defendant moved before Mr. Justice Bergen to strike out the complaint on the ground that it disclosed no cause of action. The motion was granted, and the plaintiff appeals from the judgment subsequently entered.

The complaint averred, in effect, that on September 15, 1913, the decedent was hired and employed by the defendant company; that whilst so employed he was killed by an accident arising out of and in the course of his employment; that he left surviving him a father, mother, three sisters, and a brother all of whom were dependents upon the decedent for support, and all of whom were aliens not residents of the United States, and that:

"Therefore the administratrix is not entitled to recover against the said defendant, under and by virtue of an act of the Legislature of the state of New Jersey entitled 'An act prescribing the liability of an employer to make compensation for injuries received by an employeé in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder,' approved April 4, 1911 (P. L. p. 134), and the supplements thereto and amendments thereof."

We are of the opinion that the complaint did not state a cause of action.

The act of April 4, 1911 (P. L. p. 134), to which hereinafter we shall have occasion to refer, is sometimes called the "Workmen's Compensation Act" and sometimes the "Employers' Liability Act." Counsel in the present case call it the latter. Of course it has the characteristics of both, yet, since its chief purpose was compensation to injured workmen or their dependents, we think it is more properly to be referred to as the "Workmen's Compensation Act" rather than the "Employers' Liability Act." The act of April 13, 1909 (P. L p. 114), is of the latter character.

Prior to our Workmen's Compensation Act it was held in Myers v. Holborn, 58 N. J. Law, 193, 33 Atl. 389, 30 L. R. A. 345, 55 Am. St Rep. 606, that no action will lie in this state for an injury caused by death, with the exception of that provided by the Death Act. P. L. 1848, p. 151; 2 Comp. St.

1910, p. 1907. Section 1 of the Death Act, under which this action is brought provides:

"That whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured," etc.

Since that act limited the relief granted thereby to recovery in cases where the decedent would, if death had not ensued, have been entitled to maintain an action, we must now consider whether the plaintiff's intestate, if living, could have maintained an action. In order to determine that question we turn to our Workmen's Compensation Act and observe that paragraph 9 thereof (P. L.

1911, p. 136) provides as follows:

"Every contract of hiring made subsequent to the time provided for this act to take effect shall be presumed to have been made with reference to the provisions of section II of this act, and unless there be as a part of such contract an express statement in writing, prior to any accident either in the contract itself or by written notice from either to the other, that the provisions of section II of this act are not intended to apply, then it shall be presumed that the parties have accepted the provisions of section II of this act and have agreed to be bound thereby," etc.

That act took effect July 4, 1911. The contract of hiring set out in the complaint was made subsequently, and since the complaint does not aver that the contract contained any express statement in writing that section 2 of the act was not intended to apply, nor that any written notice to that effect was given, it is presumed that the parties accepted and were bound by the provisions of that section.

Now paragraph 7 (section 2) of the Workmen's Compensation Act (P. L. 1911, p. 136) provides that:

"When employer and employe shall by agreement, either express or implied, as...