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Danek v. Hommer

Decided: July 9, 1951.


Motion for summary judgment.

Hartshorne, J.c.c.


Plaintiff husband, without the joinder of his wife, here sues per quod for loss of consortium of his wife, due to injuries which she received while in defendant's employ. The wife, as such employee, has already received an award for such injuries from the present defendant as her employer, in proceedings under Article 2 of the Workmen's Compensation Act. R.S. 34:15-7. This award has in fact been paid by the third-party defendant insurance company which covered the defendant employer for such liability.

After the institution of this suit the defendant employer obtained from the court the right to file a complaint against its above insurance carrier, as a third-party defendant, for a declaration of its rights under its compensation insurance contract, as well as under a public liability contract. The parties to this third-party action agree to stay proceedings thereon until the determination of the question presently raised in the main proceeding by the above husband against the above employer of the wife.

In these main proceedings the defendant employer moves for summary judgment against plaintiff husband on the

grounds: (1) that the award for the injuries to plaintiff's wife has been paid in full, as above, this it is claimed being the sole remedy lying for her injuries, since the Workmen's Compensation Act was enacted by the Legislature with the purpose of substituting a relatively simple, fixed, contractual remedy in lieu of the several previous, relatively elusive, remedies in tort existing therefor at common law on the part of both husband and wife. (2) Defendant further claims that the above suit by the husband is barred by the statute of limitations, R.S. 2:24-2, the present complaint having been filed more than two years from the time of the occurrence of the above injuries to the wife.

The primary issue to be determined is, therefore, whether or not the Legislature intended the elective and contractual compensation provisions of Article 2 of the Workmen's Compensation Act, when applicable, to be a complete substitute for the previous admittedly unsatisfactory common law actions in tort for negligence, available to the employee and those connected with him. Of course, this does not apply to the rights of either employer or employee against third-party tortfeasors, as to whom the Workmen's Compensation Act has set up a remedy which our highest court has recently held to be exclusive. United States Casualty Co. v. Hercules Powder Co. , 4 N.J. 157 (1950). Nor does it apply to situations where Article 2 of the act does not apply because employer and employee have chosen to remain under Article 1. For here the new contract remedies are inapplicable, the old tort remedies on the part of not only the employee but his parents or spouse still remaining applicable, subject to the provisions of the act barring certain previous defenses available to the employer in such tort actions by the employee at least.

Of course, there is not the slightest question that previous to the enactment of the various workmen's compensation statutes, not only in New Jersey but throughout the United States, the common law tort procedures for recovery for accidental injury or death, arising out of and in the course

of employment, as brought by the employee and those connected with him, whether parents, spouse or family, had proven most unsatisfactory to both employee and employer. To the employee they had become notoriously elusive, due to the uncertainty of recovery at all, because of the various common law defenses available to the employer. To the latter the situation was unsatisfactory because of the fact that, if recovery did occur, the damages were often so heavy as to jeopardize the small employer's continuance in business. Thus, as was said in the earliest case to reach our highest New Jersey court in regard to this act, "the aim of (the then recent workmen's compensation laws) is to substitute, either by compulsion or by the voluntary act of the employers, for the common law liability for negligence, a definite payment by the employer, irrespective of negligence, which shall reach the workman or his dependents quickly and with small expense." Sexton v. Newark Dist. Telegraph Co. , 84 N.J.L. 85, at p. 100 (Sup. Ct. 1913); affirmed 86 N.J.L. 701 (E. & A. 1914).

From both the humane and economic standpoints this act substitutes, on the one hand, a much more certain recovery for the benefit of all those who suffer from injury and death, and, on the other hand, imposes a much more certain and regularly recurring recovery, in a way which the employer can more readily calculate, and provide against, as a further factor in the expense of doing business. Thus, the employee and those connected with him are protected personally, and so is the employer through his ability to shift this cost of accident to the industry itself. So far all will agree.

The sole question is whether, when the Legislature substituted this relatively certain recovery on contract, beneficial in fact to employer, employee, and those dependent on him, it intended, at the same time that it admittedly wiped out the previous unsatisfactory and uncertain recovery in tort by the employee, to retain, and impose on the employer, the equally ...

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