On appeal from the Supreme Court, Essex county.
For the appellants, Milton M. Unger.
For the respondents, Elsie Rand (Joseph Coult, of counsel).
The opinion of the court was delivered by
PERSKIE, J. This is an action or proceeding under the Uniform Declaratory Judgment law. R.S. 2:26-67, et seq. Plaintiffs appeal from two separate rules on only one of which judgment final was entered and both of which will hereafter be referred to as rules. Both rules, among other things, resulted in the dismissal of the action against the defendant Louis Biondella, the respondent here.
No proofs were offered. The orders under review are based solely upon the facts set forth in appellants' petition and the schedules annexed thereto. A brief statement of these facts will lay bare the alleged justiciable controversy upon which relief was sought but denied.
From 1923 to May of 1939, Louis Biondella worked for appellants in their foundry at Newark, New Jersey, where cast iron pipes were manufactured.
For varying periods between July 4th, 1925, and October 1st, 1939, appellants were covered with standard workmen's compensation and employers' liability policies of insurance which were issued to them by The Travelers Insurance Company, Hartford Accident and Indemnity Company and Liberty Mutual Insurance Company, the other named defendants below.
By the terms of these policies each insurer agreed, among other things, (a) "to pay" promptly and in the manner provided by said policies the entire amount due to any of appellants' employes under our Workmen's Compensation act, (b) "to indemnify" appellants against loss by reason of liability imposed upon them by law for damages on account of injuries to their employes, and (d) "to defend" any suits or proceedings instituted against appellants under the stated circumstances, although such suits or proceedings "are wholly groundless, false or fraudulent."
On October 28th, 1939, Biondella caused a common law action to be instituted against appellants, his employers, in the Supreme Court of our state. The actionable negligence alleged, common law and statutory (R.S. 34:6-99, 100), was, generally stated, based upon appellants' failure to provide him with "safe methods and means" with which to do his work
and failure to provide him with a "reasonably safe place" in which to work. As a result of the alleged negligence, Biondella alleged that he contracted, during his employment by appellants, the ailment or disease of silicosis, and he further alleged, in substance, that since silicosis is not included in the schedule of compensatory occupational diseases (see Workmen's Compensation act, R.S. 34:15-31), he employed the stated form of action to recover his resultant damages. Cf. Rosacci v. U.S. Pipe and Foundry Co., 123 N.J.L. 357; 8 A.2d 707.
Appellants notified their named insurance carriers of this suit by Biondella, and called upon them to defend ...