New Amsterdam Cas. Co. v. Popovich

• Decision Date: 25 April 1955
• Docket Number: No. A--120,A--120
• Citation: 113 A.2d 666,18 N.J. 218
• Parties: NEW AMSTERDAM CASUALTY COMPANY, a corporation, Plaintiff-Respondent, v. Nicholas POPOVICH, Sr., and Nicholas Popovich, Jr., individually and trading as N. Popovich & Son, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 218

18 N.J. 218

113 A.2d 666

NEW AMSTERDAM CASUALTY COMPANY, a corporation, Plaintiff-Respondent, v. Nicholas POPOVICH, Sr., and Nicholas Popovich, Jr individually and trading as N. Popovich & Son Defendants-Appellants.

No. A--120.

Supreme Court of New Jersey.

Argued March 7, 1955.

Decided April 25, 1955.

Harry Schaffer, Newark, for plaintiff-respondent (Waxman & Waxman, Newark, attorneys).

Reuben P. Goldstein, Jersey City, for defendants-appellants.

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from a judgment of the Appellate Division which reversed a judgment of the Superior Court, Law Division, in favor of the defendants-appellants and against the plaintiff-respondent entered on a jury verdict of no cause of action and remanding the cause for a new trial. We granted certification on application made under R.R. 1:10--2(d).

The basic question involved was whether there is a right of subrogation as between two employers of a single employee. One Mason was killed while operating a tractor owned by the defendants-appellants to which was attached a trailer owned by Kramer Brothers Freight Lines, Inc., an assured of the plaintiff-respondent. Kramer Brothers were engaged in interstate transportation of commodities by motor vehicle under a federal license between western cities and certain cities on the eastern seaboard. While the tractor was owned by the defendants-appellants its use was under a lease between the appellants and Kramer Brothers. The principal question involved and tried before the Compensation Bureau was, by whom was Mason employed?

Two petitions for compensation were filed with the Bureau, one against Kramer Brothers and the other against the appellants, seeking compensation against both. On motion, with consent of counsel for both the then respondents, the two petitions were consolidated and tried together in the Bureau. The Bureau found as a matter of fact and law that the operation of the tractor and trailer and the employment of Mason under the arrangement between the then two respondents was not a partnership but in legal effect was a joint enterprise and both respondents were found jointly and equally liable and a judgment in the amount of $22,932 plus a counsel fee of $900 was entered against both the respondents. When the judgment was not paid by either of the respondents the decedent's representative filed an action in the Union County Court against the plaintiff-respondent here, the compensation carrier for Kramer Brothers, and under the statute, R.S. 34:15--84, N.J.S.A., a judgment was entered for the full amount of the award.

Kramer Brother's insurer, the plaintiff-respondent here, then filed a complaint in the Superior Court stating that it issued a standard workmen's compensation policy to Kramer Brothers and alleging the judgment in the Bureau and the judgment in the County Court, and further alleging that a demand from the defendants-appellants for contribution was refused. In a second count it alleged that according to the Compensation Act plaintiff-respondent had demanded from the defendants-appellants contribution which was refused and demanded judgment for one-half the payments made by the plaintiff-respondent and any further sums to be paid by it on account of the award in the Bureau. By way of answer the defendants-appellants denied Mason was their employee and also denied their liability for contribution and set up five separate defenses: (1) that they were under no legal obligation to the plaintiff; (2) that there could be no contribution between joint tort-feasors; (3) that R.S. 34:15--1, N.J.S.A., contained no provision for the joint payment of the award; (4) that there was no privity of contract between the defendants and other persons; (5) they had no legal duty to contribute any moneys paid by the plaintiff on behalf of Kramer Brothers.

The Superior Court entered a summary judgment for the plaintiff on the ground that the award of the Bureau was Res adjudicata on the question of employment. This was reversed by the Appellate Division which held the common law rule as to contribution by joint tort-feasors did not apply; (2) that the award by the Bureau against co-employers was not Res adjudicata of their rights Inter sese in a subsequent action between them for contribution since the Bureau had no authority to make such a determination in a compensation proceeding. The cause was remanded for a new trial. New Amsterdam Casualty Co. v. Popovich, 27 N.J.Super. 40, 98 A.2d 693 (App.Div.1953). On the remand a judgment of no cause for action in favor of the defendants-appellants and against the plaintiff-respondent was entered on the jury verdict as above stated.

On appeal this second judgment was reversed by the Appellate Division on the ground that the trial court committed error in refusing to admit into evidence certified copies of the pleadings and award in the Workmen's Compensation Bureau which were offered for the purpose of showing that in the answers filed by the defendants-appellants in that case they admitted that Mason was an employee of theirs. This we agree was error. Prior assertions made in pleadings or evidence which are inconsistent with or contradictory of present claims can be treated as an admission in subsequent litigation. Freeman v. Ackerson, 94 N.J.L. 308, 110 A. 701 (Sup.Ct.1920); Lincks v. Erie Railroad Co., 97 N.J.L. 343, 116 A. 493 (E. & A.1922).

In the course of its opinion this part of the Appellate Division held that the prior decision of the Appellate Division was the law of the case and stated:

'The record before us does not disclose any application to the Supreme Court for certification and we assume that none was made. The Supreme Court not having passed upon the legal propriety of the reversal of the summary judgment, we recognize the opinion of the Appellate Division as the law of the case. However, because we entertain some doubt as to whether we would have decided the issue in the same way, we wish to point out that we neither approve nor disapprove that opinion.' New Amsterdam Casualty Co. v. Popovich, 31 N.J.Super. 514, 107 A.2d 345, 346 (App.Div.1954).

We agree that the prior decision of the Appellate Division for the purposes of the retrial became the law of the case and binding on both the trial court and the Appellate Division on a subsequent appeal, but it is not binding upon this court. It is not Stare decisis in this court. Flaucher v. City of Camden, 56 N.J.L. 244, 28 A. 82 (Sup.Ct.1893); State v. Toth, 86 N.J.L. 247, 90 A. 1125 (E. & A.1914); State Hospital, etc v. Consolidated Water Supply, 267 Pa. 29, 110 A. 281 (Sup.Ct.1920).

We are not in accord with the original decision that that judgment of the Workmen's Compensation Bureau that the decedent Mason was an employee of both Kramer Brothers and the defendants-appellants here, was not Res adjudicata in the proceeding here. A final judgment of the Bureau is Res adjudicata as to all matters determinable at the time of its entry. Mangani v. Hydro, Inc., 119 N.J.L. 71, 194 A. 264 (E. & A.1937); J. W. Ferguson Co. v. Seaman, 119 N.J.L. 575, 197 A. 245 (E. & A.1938); Tucker v. Frank J. Beltramo, Inc., 117 N.J.L. 72, 186 A. 821 (Sup.Ct.1936); Estelle v. Board of Education, etc., 14 N.J. 256, 102 A.2d 44 (1954).

Therefore the law of this case is that Mason was employed jointly by Kramer Brothers and the defendants-appellants, both of whom were engaged in a joint enterprise.

An employee is entitled to compensation benefits from both employers because he is barred from maintaining a common law negligence action against either of them. The act provides for payment of a percentage of 'wages,' which is defined to mean the money rate at which the services rendered is recompensed under the contract of hiring. The employee is concerned only with a single weekly pay check paid jointly by his employers and he is not concerned with any financial or bookkeeping arrangements as between his employers. Scott v. Public Service Interstate Transportation Co., 6 N.J.Super. 226, 70 A.2d 882 (App.Div.1950).

The defendants-appellants, however, contend that the plaintiff-respondent is not entitled, as the insurer of Kramer Brothers, to subrogation as against them. The argument is made that the statute excludes reimbursement from any but the third-party tortfeasor, R.S. 34:15--40, N.J.S.A., and the appellant relies upon the case of U.S. Casualty Co. v. Hercules Powder Co., 4 N.J. 157, 72 A.2d 190 (1950). But that case had in view only the rights of the parties where there is a recovery against a third party tortfeasor.

Prior to the enactment of these sections relating to the third-party tort-feasor, the employee or his dependents had (1) a right of action for compensation under the statute, and (2) an action in...