On appeal from a judgment of the Supreme Court, whose opinion is reported in 127 N.J.L. 440.
For the appellant, Cox & Walburg.
For the respondents, David Roskein, John A. Laird and Avidan & Avidan.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Supreme Court reversing a determination of the Essex County Court of Common Pleas in a proceeding growing out of a workman's compensation award. The respondent, Michael Romano, has an award against Ralph, Thomas and Louis DiDonato, individually and trading as DiDonato Brothers, for an injury from an accident found to have arisen out of and in the course of his employment by them. The appellant United States Casualty Company had issued a policy of compensation insurance to the partnership, but it disclaimed liability and refused to defend the claim upon the ground
that the risk was not covered by the policy. Following the award and the failure of the employer to satisfy it, as appears in the stipulation of facts, Romano instituted the statutory proceeding in the Essex County Court of Common Pleas, to compel the insurance company to pay. In this proceeding both the employers and the insurance company were made parties. Judge Flanagan held the loss was not covered by the policy. The employers brought certiorari and the Supreme Court reversed.
The DiDonato brothers were engaged in the produce business. The policy extended coverage to them in their business in the following language:
"Produce dealers, buying, packing or otherwise preparing general produce for shipment or transportation, using stores or buildings temporarily, but not caring for produce during transit, including drivers, chauffeurs, and their helpers, clerical office employees."
The facts are not in dispute. It appears that it July, 1939, the three brothers decided to purchase three lots and erect thereon three identical houses, one for each brother. With partnership funds, they purchased three lots from the Town of Bloomfield, one being conveyed to each brother. They then proceeded to build the houses, entering into contracts with independent contractors for some of the work and employing men under their own supervision for other parts of the work. The persons employed were paid by partnership checks from funds representing profits of the partnership in its produce business. The petitioner, Romano, was one of these employees and on July 18th, 1939, he suffered the injury which led to the award in the Bureau. As stated, the insurance company denied liability and the statutory proceeding to compel payment resulted.
The first point of the appellant insurance company is that the employers had no right to have the determination of the Common Pleas reviewed on certiorari. Reliance is upon the case of Chodosh Bros. v. American Mutual Liability Insurance Co., 119 N.J.L. 335, but there the employer, without paying the award, instituted an action at law against the insurance company for the amount of the award. Here a
statutory proceeding was instituted by the employee to which the employers were named parties and in which they filed an answer, and in which they ...