Thomas Iron Co. v. Ensign-bickford Co.

• Decision Date: 08 March 1945
• Citation: 131 Conn. 665,42 A.2d 145
• Parties: THOMAS IRON CO. v. ENSIGN-BICKFORD CO.
• Court: Connecticut Supreme Court

131 Conn. 665

42 A.2d 145

THOMAS IRON CO.

v.ENSIGN-BICKFORD CO.

Supreme Court of Errors of Connecticut.

March 8, 1945.

Appeal from Superior Court, Hartford County; Shea, Justice.

Action under the Workmen's Compensation Law of New Jersey by Thomas Iron Company against the Ensign-Bickford Company, instituted by plaintiff in the name of four persons injured in its plant from an explosion alleged to have been caused by defendant's negligence. A demurrer to the reply to defendant's special defense was sustained, and plaintiff failing to plead further, trial court entered judgment for the defendant, and plaintiff appeals.

No error.

William T. Holleran, of New Haven (Arthur B. O'Keefe, of New Haven, on the brief), for appellant.

Charles Welles Gross, of Hartford (Reese H. Harris, Jr., of Hartford, on the brief), for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

The following facts appear from the writ and complaint. Thomas Iron Company owned a mine located at Wharton, New Jersey, where the four individuals upon whose behalf the action is brought were employed as miners. While so engaged on October 4, 1940, they were injured by the premature explosion of a blast, alleged to have been due to the defendant's negligence in manufacturing a fuse used in setting it off. The plaintiff company, pursuant to the Workmen's Compensation Law of New Jersey, paid and became obligated to pay substantial compensation to the four miners. On October 1, 1942, it brought this action in the name of the four employees in accordance with the provisions of the above-mentioned law.

The material provisions of this law are these: ‘Where a third person or corporation is liable to the employee * * * for an injury,’ the employee's right of compensation against the employer shall not bar his action against the third party, and any sum realized by the employee by virtue of this right of action against the third party shall serve to reduce the employer's obligation as further provided in the act. When an injured employee fails ‘within one year of the accident’ either to settle his claim or to bring suit against the third party, the employer ‘ten days after a written demand on the injured employee * * * can either effect a settlement with or institute proceedings against the third person or corporation’ for the damage sustained by the employee, ‘and such right of action shall be only for such right of action that the injured employee * * * would have had against the third person or corporation, and shall constitute a bar to any further claim or action by the injured employee * * * against the third person or corporation.’ Should the employer either by settlement or judgment obtain from the third party an amount ‘in excess of the employer's obligation to the employee and the expense of suit, such excess shall be paid to the employee.’ ‘The legal action contemplated herein above shall be a civil action at law in the name of the injured employee or by the employer * * * in the name of the employee to the use of the employer * * *.’ 2 N.J.Rev.Stat.1937, 34:15-40, N.J.S.A. 34:15-40. The plaintiff company made written demand of the employees in accordance with the above-quoted provision of the law.

The defendant pleaded as a second defense that ‘This action to recover damages for injury to the person’ of the plaintiff's employees ‘caused by negligence was not brought within one year from the date of the act or omission complained of.’ The plaintiff's reply admitted this allegation but alleged that the action was brought in accordance with the Workmen's Compensation Law of New Jersey as incorporated in the complaint, repeated in particular the provision empowering the employer to sue, and stated ‘that said action is a statutory civil action at law, as provided’ in that law, and that in this civil action at law on account of the defendant's wrongful act and neglect the New Jersey statutes provide the two years' limitation which we quote below. The defendant filed a demurrer to this reply, the material part of which is that under the provisions of the New Jersey Workmen's Compensation Law, the only cause of action is for injuries to the plaintiff's employees predicated on the defendant's negligence, and that the time within which the action could be brought is determined by the Connecticut one-year statute of limitations; General Statutes, Cum.Sup.1935, § 1680c; and not by the two-year New Jersey statute, which is not a part of the New Jersey Workmen's Compensation Law, but which applies to all actions for injuries to the person caused by wrongful act, neglect or default. 1 N.J.Rev.Stat.1937, 2:24-2, N.J.S.A. The court sustained the demurrer and, the plaintiff having failed to plead over, judgment was entered for the defendant, from which the plaintiff has appealed.

It is undisputed that, as a principle of universal application, remedies and modes of procedure depend upon the lex fori. The plaintiff company accordingly concedes that if this were a common-law action § 1680c would preclude recovery. It contends, however, that the general rule that remedies as distinguished from the rights of the parties are determined by the lex fori is subject to a well-recognized exception...