Halloran v. Haffner

• Decision Date: 18 March 1953
• Docket Number: No. A--735,A--735
• Citation: 25 N.J.Super. 241,95 A.2d 921
• Parties: HALLORAN v. HAFFNER.
• Court: New Jersey Superior Court — Appellate Division

Page 241

25 N.J.Super. 241

95 A.2d 921

HALLORAN v. HAFFNER.

No. A--735.

Superior Court of New Jersey Appellate Division.

Argued Nov. 10, 1952.

Decided March 18, 1953.

Merritt Lane, Jr., Newark, for respondent-appellant (McCarter, English & Studer, Newark, for respondent-appellant, appearing solely for the purpose of contesting the jurisdiction of the Division of Workmen's Compensation, Department of Labor and Industry).

Isidor Kalisch, Newark, for petitioner-respondent (Kalisch & Kalisch, Newark, attorneys; Harry Kalisch, Newark, of counsel).

Before Judges McGEEHAN, JAYNE and GOLDMANN.

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

On April 18, 1951 George E. Halloran, a resident of New Jersey, filed a claim petition with the Division of Workmen's Compensation of the New Jersey Department of Labor and Industry, in which he sought compensation for injuries he sustained in an accident which occurred on September 13, 1950 in Rockland, Maine, while he was working on the roof of his employer's cottage. Service was made upon the respondent as a nonresident employer in accordance with the provisions of R.S. 34:15--55.1 (as amended L.1945, c. 74, § 15, N.J.S.A.). The nonresident employer appeared solely for the purpose of contesting the jurisdiction of our Division of Workmen's Compensation and moved to dismiss the petition on two grounds: (1) that the respondent was not served personally in the State of New Jersey, and (2) that the purported service of the said petition deprived the respondent of her rights guaranteed by the Constitution of the United States. After hearings, the Deputy Director of our Division of Workmen's Compensation made the following findings:

'1. The contract of employment between petitioner, a resident of New Jersey, and the respondents, not residents of New Jersey, was made at the New Jersey home of the respondents located at Allenhurst, New Jersey, on June 15th 1950.

'2. Under the terms of the employment contract, petitioner was to drive respondents' automobile for them for such purposes as respondents required, and was likewise to act and did so act as a handyman about respondents' home in Allenhurst, until respondents determined to drive to another home owned by them in Maine, on which trip petitioner was to be the chauffeur and upon arrival in Maine to continue to act as chauffeur and handyman about respondents' premises there; petitioner's services, pursuant to the engagement were rendered at Allenhurst, New Jersey, for a period of approximately 2 weeks, and then he drove the respondents to the latters' home in Maine, and whilst there, acting as handyman about the premises of the said respondents, he suffered the injuries culminating in this action for compensation.

'3. The service made on the respondent through the Secretary of the Division of Workmen's Compensation, Department of Labor and Industry of the State of New Jersey is constitutional and proper.

'4. The Workmen's Compensation Division of the Department of Labor and Industry of New Jersey has jurisdiction of the subject matter as well as the parties involved.'

The motion to dismiss the petition was denied and the employer appeals. The employer argued that 'Revised Statute 34:15--55.1 (N.J.S.A.) violates the due process clause of the Fourteenth Amendment of the Constitution of the United States as that statute is applied to a nonresident individual employer.' This statute in pertinent part provides:

'Any employer, not a resident of this State, or any employer not licensed to do business in this State, or any resident employer who becomes a nonresident of this State after the occurrence of an injury to an employee, who shall employ or who shall have employed any person to perform work, labor or services within this State shall be deemed by the accepting of the privilege of engaging in such work, labor and services by his or its employees to make, constitute and appoint the secretary of the workmen's compensation bureau as his or its agent for the acceptance of process in any proceeding by any such employee or dependent or representative of such employee, under and by virtue of this chapter; and the acceptance of such privilege or the entering into this State for the purpose of engaging in such employment shall be a signification of such employer that any such process issued against him or it, which is so served, shall be of the same legal force and validity as if served upon him or it personally.

'Service of such process shall be made by leaving a copy of the petition with the secretary of the bureau, or some one designated by him in his office, and such service shall be sufficient service upon such nonresident employer; Provided, that notice of such service and a copy of the petition are forthwith sent by registered mail to the respondent to the address stated in such petition, by the secretary of the bureau, or such person acting for him in his office, and the respondent's return receipt and the affidavit of the secretary of the bureau, or such person in his office acting for him, of the compliance therewith are appended to such petition and filed in the office of the secretary of the bureau wherein such action may be pending; Provided, also, that the date of the mailing and the date of the receipt of the return card aforesaid are properly indorsed on such petition and signed by the secretary of the bureau, or some one acting for him.'

In Kawko v. Howe & Co., 129 N.J.L. 319, 29 A.2d 621, 624 (Sup.Ct.1943), R.S. 34:15--55.1, N.J.S.A., was attacked as unconstitutional on the ground that a state tribunal may not fasten personal liability upon a nonresident individual who has not been personally served with process within the territorial limits of the State because of the due process clause in the Fourteenth Amendment of the Federal Constitution. Our former ...