On certiorari to Middlesex County Court of Common Pleas.
For the defendant-prosecutor, Edward R. McGlynn (Joseph Weintraub, on the brief).
For the petitioner-respondent, Fleming & Potter (Russell Fleming, of counsel).
For the defendant-respondent, Morgan R. Seiffert.
Before Brogan, Chief Justice, and Justices Bodine and Heher.
Certiorari was allowed to review a judgment of the Middlesex County Court of Common Pleas against the American Mutual Liability Insurance Company of Boston, the prosecutor of the writ. The judgment was in favor of Rebecca Chodosh, widow of the late Louis Chodosh, for the amount of an award made in the Compensation Bureau to her for the death of her husband, the bureau finding that his death resulted from injury by accident arising out of and in the course of his employment.
The facts may be briefly stated as follows: Chodosh Brothers and Wexler Coal & Ice Company, Inc., a corporate
organization owned and controlled by members of the same family, three of them -- the Chodosh brothers and a fourth, Wexler, a brother-in-law -- was engaged in the coal, ice and fuel oil business. The company had two plants, one in Carteret, another at Rahway, and in addition owned some residential property close by the Carteret plant -- two houses at Railroad avenue, Carteret, where the decedent and one of his brothers, and Wexler, lived with their respective families. In back of the residential properties was a screened summer house which was used by these business associates for meetings of the corporation each week during the summer months. The decedent, while painting the roof of this summer house on June 29th, 1934, suffered sunstroke and died a week later, on July 5th. His wife, Rebecca, filed a claim petition in the Compensation Bureau, and was awarded compensation on May 22d, 1936. No appeal was taken. The insurance carrier, prosecutor of this writ, had refused to defend the action for compensation against its assured, the employer, on the stated ground that the work being done by the decedent at the time he suffered sunstroke, was not "within the inclusion of the policy for insurance coverage or liability."
It is stipulated that the policy of the insurance carrier was in force at the time of the accident and death and that the award made in the bureau has not been paid; that the insurance company had notice of the accident but that it disclaimed liability and refused to defend on the ground above stated. Thereafter Rebecca Chodosh filed a petition in the Pleas on June 12th, 1937, reciting the award, alleging that the policy of the prosecutor covered the engagement of her husband at the time of his death, and that the employer and insurance company, or either of them, failed to pay the said award. An order was made requiring the carrier to show cause why the award should not be paid by it. (Pamph. L. 1917, ch. 178; R.S. 34:15-70 et seq.) The carrier moved to dismiss the proceedings on several grounds -- mainly want of jurisdiction in the Pleas and failure to allege that the contract of the carrier covered the work done by the decedent out of which death resulted. The motion was denied. An answer was then filed by the insurance company on which issue was
joined and on March 11th, 1938, the court, on application of the carrier, joined the employer as a party so that the whole matter might be disposed of in one suit, on the theory that if the carrier were held liable on its contract it might be made whole by a counter-claim which it filed against the corporate employer.
The proceeding in question is brought under section 10 of the Workmen's Compensation Insurance act of 1917. R.S. ...