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Kawko v. Howe & Co.

Decided: January 7, 1943.

SALLY KAWKO, PETITIONER-DEFENDANT,
v.
HOWE & COMPANY, RESPONDENT-PROSECUTOR



On writ of certiorari.

For the petitioner-defendant, Charles S. Witkowski.

For the respondent-prosecutor, McCarter, English & Egner (Verling C. Enteman and Nicholas Conover English).

Before Justices Case, Donges and Colie.

Case

The opinion of the court was delivered by

CASE, J. The single question is whether the following provision in the Workmen's Compensation Act is constitutional as against an individual non-resident employer:

R.S. 34:15-55.1. "Any person or firm, not a resident of this state, or any corporation not licensed to do business in

this state, who shall employ any person to perform work, labor or services within this state shall be deemed by the accepting of the privilege of engaging in such work, labor and services by its employees to make, constitute and appoint the secretary of the workmen's compensation bureau as his or its agent for the acceptance of process in any proceeding by any such employee or dependent or representative of such employee, under and by virtue of this chapter; and the acceptance of such privilege or the entering into this state for the purpose of engaging in such employment shall be a signification of such employer, his or its agreement that any such process issued against him or it, which is so served, shall be of the same legal force and validity as if served upon him or it personally.

"Service of such process shall be made by leaving a copy of the petition with the secretary of the bureau, or someone designated by him in his office, and such service shall be sufficient service upon such non-resident employer; provided that notice of such service and a copy of the petition are forthwith sent by registered mail to the respondent to the address stated in such petition, by the secretary of the bureau, or such person acting for him in his office, and the respondent's return receipt and the affidavit of the secretary of the bureau, or such person in his office acting for him, of the compliance therewith are appended to such petition and filed in the office of the secretary of the bureau wherein such action may be pending; provided, also, that the date of the mailing and the date of the receipt of the return card aforesaid are properly indorsed on such petition and signed by the secretary of the bureau, or someone acting for him. * * *"

Phil Howe, an individual, trading as Howe & Company and a resident of the State of Washington, came into the State of New Jersey and here entered into a contract of employment with Sally Kawko, a resident of this state. Miss Kawko suffered within this state an injury arising out of and in the course of that employment. She filed a claim in the Workmen's Compensation Bureau. Service was made upon Howe as a non-resident employer in accordance with

the direction of the statute. It is conceded, in so far as this proceeding is concerned, that the statute was complied with in all respects and that Howe actually received a copy of the claim by registered mail from the secretary of the Workmen's Compensation Bureau. Howe went into the Bureau on his rule to show cause why Miss Kawko's petition should not be dismissed and is now before us as prosecutor of a writ of certiorari to review the discharge of the rule. He contends that because of the due process clause in the Fourteenth Amendment of the Federal Constitution a state tribunal may not fasten personal liability upon a non-resident individual who has not been personally served ...


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