Yearicks v. City of Wildwood

• Decision Date: 15 November 1952
• Docket Number: No. 1--7023,1--7023
• Citation: 92 A.2d 873,23 N.J.Super. 379
• Parties: YEARICKS v. CITY OF WILDWOOD. ATLANTIC CITY ELECTRIC CO. v. SCHULTES et al.
• Court: New Jersey Superior Court

Page 379

23 N.J.Super. 379

92 A.2d 873

YEARICKS v. CITY OF WILDWOOD.

ATLANTIC CITY ELECTRIC CO. v. SCHULTES et al.

No. 1--7023.

Superior Court of New Jersey, Law Division.

Nov. 15, 1952.

Mauricc Y. Cole, Atlantic City, for the motion (Cole & Cole, Atlantic City, attorneys).

Horace G. Brown, Camden, for plaintiff, opposed.

WOODS, J.S.C.

Defendant, City of Wildwood argues to add August C. Schultes, Sr., August C. Schultes, Jr., James F. Schultes and Mary E. Schultes, t/a A. C. Schultes & Sons, and the New Amsterdam Casualty Company as third-party defendants. The court heard counsel orally, Mr. Koury appearing for Cole and Cole and Mr. Connery for Horace G. Brown, and suggested briefs which later were filed.

The present case arises out of a suit instituted by the personal representative of Marshall Yearicks, deceased, against the City of Wildwood and the Atlantic City Electric Company, and it is asserted that Yearicks, while an employee of A. C. Schultes & Sons, well-drilling contractors, sustained fatal injuries through electrocution on the premises of the defendant, City of Wildwood. The complaint alleges that the negligence of the City of Wildwood and the Atlantic City Electric Company, supplier of the electric power used by the City of Wildwood in the operation of its pumping station, resulted in the death of Yearicks.

Counsel for the plaintiff admits that in view of the fact that the plaintiff already has availed herself of the Workmen's Compensation Act, any right or remedy whichshe might have against the Schultes has been satisfied by the Compensation Act. Neither at common law nor in tort has the plaintiff a cause of action against her decedent's employer, A. C. Schultes & Sons.

Counsel for the motion contends that under third-party practice he should prevail. To the court's attention he brings Rule 3:14--1:

'A defendant may move, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. * * *'

The basis for the motion is alleged in three separate counts of the City of Wildwood's third-party complaint. The first and third counts assert that under a written contract between the city and A. C. Schultes & Sons there was an indemnification provision to save the city harmless 'from all damages to which the said City or any of its officers, agents or servants may be put by reason of injury to the person or property of others resulting from carelessness in the performance of said work, or through the negligence of the said Contractor, or through any improper or defective machinery, implements or supplies used by the said Contractor in the aforesaid work or through any act or omission on the part of the said Contract or his agents or servants,' and that by reason of said acts or omissions on the part of Schultes or its agents, Yearicks was killed. The third count also asserts a right of action against the New Amsterdam Casualty Company, surety, to the extent of $4,592.50 on the indemnity bond filed by Schultes with the city. In short, the right of action asserted in the first and third counts is based on indemnification.

In the second count, it is asserted that Schultes should be brought into the case as a third-party defendant because Schultes is a joint tortfeasor and claims a right of contribution against Schultes, agreeable to N.J.S. 2A:53A--1 to 4 which reads:

'For the purpose of this act the term 'joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. A master and servant or principal and agent shall be considered a single tortfeasor.

'The right of contribution exists among joint tortfeasors.

'Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share; but no person shall be entitled to recover contribution under this act from any person entitled to be indemnified by him in respect to the liability for which the contribution is sought.

'This act shall apply to all actions for contribution commenced, and to all judgments recovered, after the effective date hereof irrespective of the time of the commission of the wrongful act or acts by the joint tortfeasors; provided, that it shall not apply with respect to payments made prior to the effective date hereof.'

Counsel have called the courts' attention to a number of citations which we have read and, on reading the same, have discovered other citations which seem to throw a little light on the problem we must resolve at this juncture.

Ordinarily the authorities hold that joint tortfeasors acts are inapplicable as between an employer who is within the Workmen's Compensation Act and a third party whose negligence together with that of the employer is alleged to have resulted in the injury to the employee. In ...