Pennsylvania Manufacturers' Casualty Insurance Company v. Schmerbeck

• Decision Date: 26 February 1942
• Citation: 24 A.2d 573,128 N.J.L. 180
• Docket Number: 214
• Court: New Jersey Supreme Court
• Parties: PENNSYLVANIA MANUFACTURERS' CASUALTY INSURANCE COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, PROSECUTOR, v. JOSEPH SCHMERBECK AND UNITED SAND AND GRAVEL COMPANY, A CORPORATION OF THE STATE OF PENNSYLVANIA, RESPONDENTS

24 A.2d 573

128 N.J.L. 180

PENNSYLVANIA MANUFACTURERS' CASUALTY INS. CO.

v. SCHMERBECK et al.

No. 214.

Supreme Court of New Jersey.

Feb. 26, 1942.

Proceeding under the Workmen's Compensation Act by Joseph Schmerbeck, employee, opposed by the United Sand & Gravel Company, employer, and the Pennsylvania Manufacturers' Casualty Insurance Company, insurer.To review an adverse judgment, the insurer brings certiorari.

Case remanded with instructions to dismiss the insurer from the proceedings, and judgment, as thus modified, affirmed.

October term, 1941, before BROGAN, C. J., and CASE and HEHER, JJ.

Coult, Satz, Tomlinson & Morse, of Newark (Joseph Coult, Jr., of Newark, of counsel), for prosecutor.

Arthur D. McTighe, of Trenton (Hervey Studdiford Moore, of Trenton, of counsel), for respondentJoseph Schmerbeck.

Samuel Koestler, of Elizabeth (Benjamin Nohemie, of Elizabeth, of counsel), for respondentUnited Sand & Gravel Co.

BROGAN, Chief Justice.

By this writ a judgment of the Workmen's Compensation Bureau is brought up for review.The Deputy Commissioner in his determination ordered that judgment be entered in favor of the petitioner for compensation and against the respondents.The respondents were the United Sand and Gravel Company, a corporation of Pennsylvania (the employer), and the Pennsylvania Manufacturers Casualty Insurance Company, a Pennsylvania corporation (the employer's insurance carrier).The last-named party, namely, the insurance carrier, is the prosecutor of the writ and the contention is that the Workmen's Compensation Bureau was without jurisdiction "to render a judgment against the carrier as the Workmen's Compensation Act of New Jersey [N.J.S.A. 34:15-1 et seq.] does not apply to the contract of insurance, which was in existence at the time of the accident, between the said insurance carrier and the employer."

The basic question is whether our statute(R.S. 34:15-84, N.J.S.A. 34:15-84) comprehends the situation that resulted from the facts in this case.That statute reads as follows: "Every such contract shall further provide, or be construed to provide, that any injured employee or his dependents may enforce the provisions thereof to his or their benefit, either by agreement with the employer and the insurance carrier, in event that compensation be settled by agreement, or by joining the insurance carrier with the employer in his petition filed for the purpose of enforcing his claim for compensation, or by subsequent application to the court of common pleas, upon the failure of the employer, for any reason, to make adequate and continuous compensation payments."

The petitioner, a resident of New Jersey, filed a claim petition on Sept. 13, 1940, stating that he suffered a compensable accident on July 1, 1940, at Morrisville, Pa.; that his employer was the United Sand and Gravel Company, Kingston, N. J.The name of the insurance carrier was also listed.The employer, in its answer, said that its address was Morrisville, Pa.; that it had notice of the injury; that it arose out of and in the course of the employment; that compensation had been promised "in accordance with the provisions of the Workmen's Compensation Act of Pennsylvania[77 P.S.Pa. § 1 et seq.]"; that the hiring was done in that state and that the "Workmen's Compensation Commission of New Jersey is without jurisdiction in the premises."The carrier filed "a.special answer to claim petition" alleging that the petitioner was hired in Pennsylvania; that it was not the insurer of the employer under the New Jersey Compensation Act but only under the Pennsylvania Workmen's Compensation Act; that it was ready to pay compensation under the Pennsylvania statute and that the New Jersey Compensation Bureau was without jurisdiction.

On Dec. 13, 1940, a hearing before the Deputy Commissioner was had.Counsel for the insurance carrier appeared for the carrier and the employer and it was stipulated that the issue to be litigated was the question of jurisdiction, that is, whether the contract under which petitioner was hired was made in New Jersey or in Pennsylvania.The undisputed testimony is that the employer's plant was in the State of Pennsylvania and that the petitioner worked for the employer only at that plant.It is unnecessary to go into the details of the hiring.The Deputy Commissioner found that the petitioner was hired in New Jersey.The testimony amply persuades us that this conclusion on this element of the case was correct and we find accordingly.

Thereafter and on December 27, 1940, the employee filed an amended claim petition for compensation.The insurance carrier was made a party.It filed answer alleging that the statute, supra, did not and does not apply to the contract of insurance between it and the employer; and that such contract extended no "coverage to an award to this petitioner under and by virtue of the Workmen's Compensation Act of the State of New Jersey" and that...