On appeal from the Supreme Court.
For the respondent, Thomas P. McKenna (Theodore D. Parsons, of counsel).
For the appellant, Wall, Haight, Carey & Hartpence (John A. Hartpence, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The plaintiff below, Mary Butler, was awarded damages at the Monmouth County Supreme Court circuit for personal injuries received in an automobile accident. The defendant appeals from the judgment entered thereon.
From the record in this case, it appears that the plaintiff entered the service of the defendant on May 27th, 1931, as a cook. She testified she merely went to the home of the defendant on that day to prepare lunch because of the illness of the regular cook and that after lunch Mrs. Eberstadt, wife of the defendant, asked her if she would not continue her service for a few days and accompany the family of the defendant to the summer home on Long Island over Decoration Day. The plaintiff agreed and went to Long Island for the time requested and on Sunday, May 31st, on the return trip from Long Island, the defendant's automobile, driven by his chauffeur and carrying as passengers the plaintiff and three young children of the defendant as well as a nursemaid, collided with another machine on the Harrison-Kearny turnpike in Hudson county, New Jersey, as a result of which the plaintiff sustained serious injuries. Thereafter on September 12th, 1932, she brought this suit against the defendant, the employer, in the Supreme Court, for damages for the injuries received on the theory that her employment being, as she claimed, casual in character, afforded her a common law
action since she was outside that class of employes entitled to compensation under section 2 of our Employers' Liability act. Pamph. L. 1911, ch. 95, p. 134. Subsequently, on May 27th, 1933, four days before the time limit, fixed by that statute (supra) for the filing of claims for compensation, would have expired, a petition for compensation was filed by her in the compensation bureau. Obviously this course was pursued by the plaintiff as a measure of caution to keep alive her claim if it should be determined in the Supreme Court that she was a regular employe of the defendant and therefore entitled to compensation, as provided by the statute.
The defendant answered the petition filed in the compensation bureau and admitted that compensation was payable in the case. The defendant thereupon amended his answer already filed in the Supreme Court action, by annexing thereto a copy of the petition for compensation and a copy of his answer admitting that compensation should be paid and reiterated the defenses already pleaded that he was not liable for damages sustained by the plaintiff through any act or default, if any there was, on the part of the chauffeur, since they were fellow servants. The answer further averred that the plaintiff was a regular and not a casual employe, having been hired for a month at a fixed salary; that she was injured by an accident arising out of and in the course of her employment and that the provisions of the Employers' Liability act applied to her and that her claim should be sent to the compensation bureau for determination as to the amount of compensation.
When the case was reached for trial at the Monmouth Circuit the defendant moved that this common law action be dismissed for lack of jurisdiction, which motion was denied. This denial is presented as one of the grounds of appeal. It is also argued by the appellant that the trial court should, as a matter of law, at the end of the entire case, have ruled that the employment of the plaintiff was regular and not casual and that therefore the action should have been dismissed or a verdict directed for the defendant on this ground. Both these questions may be treated together. The trial court correctly
disposed of these motions. It is true that the compensation bureau, under the statute as supplemented (Pamph. L. 1918, ch. 149, p. 430, § 3), has sole jurisdiction to award compensation to an injured employe whose injury arose out of and in the course of the employment, in cases where the employment admittedly is or is determined by the bureau to be, regular, and this jurisdiction is exclusive. It is likewise true that the bureau was completely competent to determine this preliminary question, that is, whether the employment was regular or casual -- if the plaintiff had in the first instance come to that forum for a determination of that question and if her employment was casual, her petition would have been dismissed. Thereafter she would have the privilege of instituting suit in a law court if she wished.
In the bureau the referee, representing the commissioner of labor, is judge of both law and fact. In a common law court a jury determines the fact. The judge is powerless to do so. Therefore, as to a preliminary question of this character, the jurisdiction of the compensation bureau and a common law court is co-equal. Since then the plaintiff's cause of action depended upon the character of her employment, whether casual or regular, and that was a fact question, it follows that the court was without power, in limine, to dismiss the plaintiff's suit at law. Cf. Boyle v. Van Splinter, 101 N.J.L. 89.
As to the second question, that the trial court should, as a matter of law, at the end of the plaintiff's case or at the end of the entire case, have dismissed the action or directed a verdict for the defendant on that ground, viz., that the employment was regular, the appellant relies upon the statute (supplement, Pamph. L. 1918, supra) which provides that "the commissioner of labor" * * * shall have exclusive, original jurisdiction of all claims for compensation arising under the act to which this act is a supplement," &c. This provision does not support the appellant's argument. It means this and only this ...