Konitch v. Hartung

• Decision Date: 03 December 1963
• Docket Number: No. A--591,A--591
• Citation: 81 N.J.Super. 376,195 A.2d 649
• Parties: Josephine KONITCH, and Nenad Konitch, Plaintiffs-Appellants, v. Albert E. HARTUNG, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 376

81 N.J.Super. 376

195 A.2d 649

Josephine KONITCH, and Nenad Konitch, Plaintiffs-Appellants, v. Albert E. HARTUNG, Defendant-Respondent.

No. A--591.

Superior Court of New Jersey Appellate Division.

Argued Nov. 26, 1963.

Decided Dec. 3, 1963.

David Shapiro, Passaic, for appellants.

Robert J. C. McCoid, Newark, for respondent (Schneider, Lustbader & Morgan, Newark, attorneys).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiffs appeal from a Law Division summary judgment in defendant's favor. The court determined that plaintiff Josephine Konitch's common law negligence action against defendant, her fellow employee, was barred as a matter of law under N.J.S.A. 34:15--8 by reason of both parties being 'in the same employ,' and that her exclusive remedy was under the Workmen's Compensation Act. Nenad Konitch, her husband, suing Per quod, was adjudged to have no cause of action inasmuch as his action depended upon and was incidental to his wife's.

The sole issue here is whether the trial court correctly construed N.J.S.A. 34:15--8 in holding that defendant was 'in the same employ' as the injured plaintiff and therefore immune from suit under the statute.

The facts are not disputed. Plaintiff was a secretary, and defendant a technical director in the employ of Flood & Conklin Mfg. Co. Both were allowed to park their automobiles in a parking lot made available to that company and which it permitted certain of its employees to use. At about 8 A.M. on October 27, 1961 plaintiff drove her car into the lot, parked it, and started to walk toward the exit in order to get to the office where she worked. While she was still inside the parking lot she was struck and injured by an automobile operated by defendant, who was driving to work and was about to park the car. The vehicle was owned by the employer, who provided it for defendant's business and pleasure use.

Plaintiff brought an action in negligence against both defendant and the company, and her husband sued Per quod. This action against the employer was dismissed, all parties agreeing that recovery against the company lies within the exclusive area of the Workmen's Compensation Act, N.J.S.A. 34:15--8 (first paragraph).

Defendant moved for summary judgment, contending that Mrs. Konitch's exclusive remedy is under the Workmen's Compensation Act in view of N.J.S.A. 34:15--8 (second paragraph), which reads:

'If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was In the same employ as the person injured or killed, except for intentional wrong.' (Italics ours)

This language was added to R.S. 34:15--8 (L.1911, c. 95, § 8) by L.1961, c. 2, § 1.

We have here a case where the injured plaintiff and defendant are employed by the same employer. Both were at the parking lot for the purpose of beginning their workday. Although defendant had the use of the company's motor vehicle for pleasure as well as business, at the time of the accident his sole reason for operating the vehicle was to get to work.

The trial court established a three-pronged test for the application of N.J.S.A. 34:15--8: it must appear that (1) plaintiff suffered a compensable injury; (2) plaintiff and defendant were co-employees; and (3) defendant was acting in the course of his employment. The statutory language, 'in the same employ,' was construed to mean that the accident must arise out of and in the course of employment. Defendant need not be performing a duty connected with his employment. The trial judge was of the opinion that the clear intention of the statute--all of the three elements just mentioned being present--was to limit recovery to compensation benefits and to exclude any other liability, except for an intentional injury.

Here, as in the trial court, plaintiffs argue that not only must the parties be employed by the same employer, but that the co-employee must commit the tort while performing a duty and function of his employment. Defendant's position, on the other hand, is that the statute means exactly what it says.

The plain language of the statute stands in direct opposition to plaintiffs' position. Nowhere may there be found a reference, express or implied, to the duty restriction which plaintiff would place on the immunity granted a co-employee. They argue, however, that a literal reading of the statute could lead to absurd results. They pose the hypothetical situation where a traveling salesman, driving a car on company business, becomes involved in an accident brought about by a person employed by the same company while on vacation or doing something not connected with a duty of his employment. To hold the vacationing employee immune from liability for injuries suffered by the salesman would, they say, reach a result not intended by the Legislature. But as we read the statute, immunity would not result, for the vacationing employee could not be said to have been acting within the course of his employment. It is not necessary to impose a duty limitation in order to avoid the consequence which plaintiffs project. On the other hand, were the situation reversed and the salesman the defendant, there still would be no immunity, for the vacationing employee would not have received a compensable injury.

The 'in the same employ' provision of N.J.S.A. 34:15--8 has not been construed by our courts. Plaintiffs rely on Stacy v. Greenberg, 9 N.J. 390, 88 A.2d 619 (1952) and 14 N.J. 262, 102 A.2d 48 (1954). Our Supreme Court there construed a provision of the New York Workmen's Compensation Law, section 29, subdivision 68 McKinney's Consol.Laws, c. 67, which closely resembles the 1961 amendment to the New Jersey act here in question. Plaintiffs quote from 14 N.J., at pages 265--266, 102 A.2d, at page 49, where the court said:

'* * * In our earlier decision, after examining pertinent New York authorities pursuant to a stipulation of counsel that 'all decisions of the New York courts which may be cited by counsel shall be deemed to be in evidence for the purpose of the determination by the court as to the State of New York law,' we concluded that, though Greenberg (defendant) and plaintiffs (Stacy and Wolff) might be entitled to compensation benefits under the New York act for their hurts, Stacy and Wolff were barred by the statute from maintaining common law actions against Greenberg only if Greenberg's act of driving was in the authorized performance of a job for his employer. * * *'

Reference is also made to the language at page 267 of that case (at page 50 of 102 A.2d), where the court said that it read the New York statute as 'intended to bar common law actions against the employee whose wrong injures his fellow employee if the driving is part of his job in the employer's service * * *,' and page 268 (at page 51 of 102 A.2d), where the court said that the implication to be drawn from the New York decisions was that 'if the purposes of the driving include the performance of an assigned duty of the employment the immunity follows.'

However, the true meaning assigned by our Supreme Court to the New York statute may be found in its earlier opinion, 9 N.J., at pages 399--400, 88 A.2d, at page 624, where it said:

'* * * Plaintiffs and Greenberg were not 'in the same employ' within the meaning of section 29, subsection 6, merely because they had a common employer. 'To make section 29 applicable at all, plaintiff must have sustained an injury in the course of employment, and to be immune from suit a co-employee causing the injuries must be 'in the same employ,' namely in the course of employment by the same employer,' (citing New York cases). * * *' In Roberts v. Gagnon, 1 A.D.2d 297, 149 N.Y.S.2d 743 (App.Div....