On appeal from the Supreme Court.
For the plaintiff-appellant, William A. Davenport (Joseph C. Paul, of counsel).
For the defendant-respondent, J. Frank Weigand.
The opinion of the court was delivered by
WELLS, J. This is an appeal by the plaintiff, United States Casualty Company, hereinafter called the Insurance Company, from a judgment of the Supreme Court for the defendant, Evans Hyrne, entered on an order of the Circuit Court judge of Essex county, sitting as Supreme Court commissioner, striking out the complaint filed by said Insurance Company against said defendant.
On August 26th, 1933, one George M. Mason, a policeman in the employ of the borough of Keyport, was injured during the performance of his duties, as the result of being struck by an automobile owned and operated by said defendant. Mason was subject to the provisions of the Workmen's Compensation
act and an agreement was entered into for the payment of compensation by the plaintiff, Insurance Company, insurance carrier for the borough of Keyport.
No action having been instituted by Mason within six months, on December 29th, 1934, the Insurance Company filed a complaint alleging compliance with all statutory requirements of section 23 (f) of the said act. On motion of the defendant this complaint was struck on the ground that it did not set forth a legal cause of action.
The last paragraph of section 23 (f) of the Workmen's Compensation act, as amended 1931 (Pamph. L., ch. 279, p. 74), is the only part involved in this appeal and is as follows:
"When an injured employe or his dependent fails within six months of the accident, to take legal action against a third party responsible for the injury, or accepts a settlement for less than the compensation obligation of the employer, the employer or his insurance carrier is hereby authorized to proceed legally against such third party; provided, however, if the amount secured by the employer or carrier is in excess of the employer's obligation and the expense of suit, the balance shall be paid to the employe or the dependent."
Within the meaning of this section the said defendant, Evans Hyrne, is the "third party."
Generally, three grounds are urged to sustain the judgment of the Supreme Court: (1) The procedure provided by section 23 (f) contravenes article IV, subdivision 7, paragraph 4 of the constitution of New Jersey, providing that "every law shall embrace but one object and that shall be expressed in the title;" (2) the provision for suit by an employer or his insurance carrier after six months from the date of the injury tends to establish a new limitation of action, and tends to split a cause of action; (3) the provision for suit by an employer or his insurance carrier creates an assignment of a tort claim before judgment, contrary to the ...