Stacy v. Greenberg, A--112

• Decision Date: 12 May 1952
• Docket Number: No. A--112,A--112
• Citation: 88 A.2d 619,9 N.J. 390
• Parties: STACY v. GREENBERG et al. WOLFF v. GREENBERG et al.
• Court: New Jersey Supreme Court

Page 390

9 N.J. 390

88 A.2d 619

STACY v. GREENBERG et al.

WOLFF v. GREENBERG et al.

No. A--112.

Supreme Court of New Jersey.

Argued April 21, 1952.

Decided May 12, 1952.

George F. Lahey, Newark, argued the cause for appellants (Lahey & Gockeler, Newark, attorneys).

Joseph Weintraub, Newark, argued the cause for respondents (McGlynn, Weintraub & Stein, Newark, attorneys).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, JR., J.

The question here is whether New York residents employed by a New York corporation under contracts of employment entered into in New York who sustained injuries in an automobile accident in this State while returning to New York City from a work assignment in Pennsylvania, and who are entitled to benefits for such injuries under the New York Compensation Law (McK.Consol. Laws of New York, c. 67), may maintain common law actions in negligence in our Superior Court, Law Division, against the corporation president who owned, and the corporation sales manager who operated the automobile in which they were passengers.

Plaintiffs brought separate actions. The Law Division entered a like interlocutory order in each suit, upon motion of each plaintiff, striking a separate defense which interposed as a bar to the maintenance of the suit subdivision 6 of section 29 of the New York act precluding any action by an employee covered by the act for injuries sustained in the course of his employment against 'another in the same employ' based upon such other's negligence or wrong. Each order also denied defendants' countermotion for summary judgment.

The Appellate Division granted leave to appeal pursuant to Rule 4:2--2(b) and we have certified the appeals of our own motion.

Marlene Blouse Corporation was a New York corporation having its place of business in New York City. Plaintiffs, Stacy and Wolff, were employed by the corpoation under contracts of employment entered into in New York. Defendant Meltzer was president of the corporation, and defendant Greenberg was its sales manager. Meltzer drove the group in his Cadillac automobile (maintained, however, at the expense of the corporation) from New York City to Nazareth, Pennsylvania, on the company's business. He did not accompany the group on the return trip, but at his request Greenberg drove the car back with plaintiffs as passengers. The mishap occurred en route back to New York City on September 10, 1949. Stacy and Wolff each brought suit by complaint filed February 6, 1950 in the Superior Court, Law Division, against Greenberg as operator and Meltzer as owner of the Cadillac to recover for the injuries sustained. Meltzer's alleged liability is predicated solely upon the allegation that Greenberg was driving the automobile 'as agent and servant' of Meltzer and that Greenberg's negligence is therefore 'chargeable to' Meltzer.

The separate defense in each case, supported by an affidavit of Meltzer, alleges that Marlene Blouse Corporation 'provided for compensation to be paid to the plaintiff in accordance with the terms of the said (New York) Act.' This is not denied by plaintiffs' affidavits and may be taken as admitted. Plaintiffs admit that Marlene Blouse Corporation has paid all of plaintiffs' medical and hospital bills and full salary until the week ending November 5, 1949 and partial up to and including March 4, 1950, but each states that the payments 'were not made nor accepted by me as compensation benefits under the New York statute' but 'solely as a gesture by an employer to an employee with the understanding' 'to pay the moneys out of any recovery' obtained. Neither plaintiff has made a claim for compensation under the New York statute.

If controlling effect be given to the Workmen's Compensation Law of New York, a question discussed hereinafter, and Greenberg was a person 'not in the same employ' with plaintiffs at the time of the accident, subsection 1 of section 29 of that law permits plaintiffs to maintain the instant actions subject to specified liens upon any recovery. The actions were brought within the times limited by that subsection. And they are maintainable even if the payments admittedly received by plaintiffs were taken as compensation and medical benefits under the New York act. The subsection expressly authorizes timely actions based upon 'the negligence or wrong of another not in the same employ,' though the injured employee 'may take such compensation and medical benefits.' If, however, Greenberg was another 'in the same employ' with plaintiffs when the mishap occurred, subsection 6 of section 29 of the act, if given effect by our courts, precludes plaintiffs from maintaining the instant suits against the defendants.

Well established principles of comity require that our courts give full effect to the New York statute upon the facts presented here. The New York statute became an integral part of plaintiffs' employment contracts when those contracts were entered into in New York. Post v. Burger & Gohlke,216 N.Y. 544, 111 N.E. 351 (Ct.App.1916). It is the incorporation of the terms of the New York Workmen's Compensation Law into his contract of employment entered into in that state which entitles the employee who sustains injuries outside of New York in the course of doing work incident to his New York employment to benefits under the New York law. Smith v. Aerovane Utilities Corp., 259 N.Y. 126, 181 N.E. 72 (Ct.App.1932); Leary v. M. J. Daley & Co., 261 N.Y. 552, 185 N.E. 734 (Ct.App.1933); Klein v. Pepe, 99 N.Y.S.2d 794 (Sup.Ct.1950); cf. Cameron v. Ellis Construction Co., 252 N.Y. 394, 169 N.E. 622 (Ct.App.1930), remittitur amended 253 N.Y. 559, 171 N.E. 782 (Ct.App.1930); Zeltoski v. Osborne Drilling Corp., 264 N.Y. 496, 191 N.E. 532 (Ct.App.1934). We give similar effect to our own statute as to hirings entered into in this state. Gotkin v. Weinberg, 2 N.J. 305, 66 A.2d 438 (1949).

The New York and New Jersey statutes differ as to the extent to which the statutory remedy is an exclusive remedy. Section 11 of the New York act makes the liability of the employer to pay compensation 'exclusive and in place of any other liability whatsoever, to such employee * * * at common law or otherwise on account of such injury' unless the employer fails to secure the payment of compensation for his injured employee. And subsection 6 of section 29 provides: 'The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ.' The New York Court of Appeals has held that section 11 and subsection 6 of section 29 are both 'evidence of the legislative intent to make compensation the comprehensive and exclusive remedy for such injury' both as to the employer and 'the employing organization.' Williams v. Hartshorn, 296 N.Y. 49, 69 N.E.2d 557, 558 (Ct.App.1946). New Jersey makes the statutory remedy exclusive as against the employer. Gotkin v. Weinberg, supra. However, the bringing of an action in negligence against a fellow servant causing the injury is not precluded. Churchill v. Stephens, 91 N.J.L. 195, 102 A. 657 (E. & A.1917).

That New Jersey permits and New York denies a right of action to an injured employee against a fellow servant whose negligence or wrong occasions his injury, is no reason for our courts refusing to give controlling effect to the New York statute upon the facts presented here. Plaintiffs are not entitled to compensation under our Workmen's Compensation Act for the injuries suffered in the mishap. They were not in New Jersey upon a work assignment to be performed in this State. Their presence here, though in the course of and incident to their New York employment, was merely as transients en route back to New York City after completion of a work assignment in Pennsylvania connected with their primary New York employment. Their contact with our State was purely casual and not in the performance of their employment contracts within the reach of our decisions which imply our statute into a foreign contract of hiring to be performed in this State. American Radiator Co. v. Rogge, 86 N.J.L. 436, 92 A. 85, 94 A. 85 (Sup.Ct.1914), affirmed 87 N.J.L. 314, 93 A. 1083 (E. & A.1915), error dismissed 245 U.S. 630, 38 S.Ct. 63, 62 L.Ed. 520 (1917).

The cases thus do not present the complex problem of the application of conflicting workmens' compensation acts to an accident with which two or more states may have some legitimate concern, nor involve the necessity of our determining the extent of the authority of New Jersey to legislate for the bodily safety and economic protection of employees injured within its borders. See Pacific Employers Insurance Co. v. Industrial Accident Commission, 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940 (1939) and Alaska Packers Association v. Industrial Accident Commission, 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935). Nothing is presented in this situation which is obnoxious to the public policy of New Jersey. Recognition of the limitations upon plaintiffs' rights of suit against fellow servants imposed by the New York statute can in no wise be prejudicial to the interests of our State. By making the New York statute the applicable law in the instant cases we merely recognize that by their conduct plaintiffs have subjected themselves to certain restrictions upon their rights to pursue remedies against their fellow servants incorporated by the New York law into their contracts of employment. These are substantial provisions of such...