On appeal from the Essex County Court, Law Division.
For affirmance -- Justices Heher, Oliphant, Wachenfeld and Burling. For reversal -- Chief Justice Vanderbilt. The opinion of the court was delivered by Oliphant, J. Vanderbilt, C.J. (dissenting).
This is an appeal from a judgment of the Essex County Court, Law Division, entered in favor of the defendants-respondents and against the plaintiff-appellant, as the result of a motion for summary judgment. The appeal is before us on our own motion.
The plaintiff husband, without the joinder of his wife, sued per quod consortium amisit for the loss of consortium due to injuries his wife received while in the defendant's employ. His wife had already received an award for such injuries pursuant to the Workmen's Compensation Act, R.S. 34:15-1 et seq. Since the institution of this action the defendant-employer obtained an order to implead the insurance carrier as a third-party defendant and the parties to the latter action agreed to stay the proceedings therein until the determination of the question presently raised in this cause.
The question here presented is whether the elective provisions of Article II of the Workmen's Compensation Act constitute a complete substitute for the common law action per quod consortium amisit. The contention of the appellant is that while the Legislature had the undoubted power to bar the husband's action per quod it did not do so in express language and that the court cannot by implication read into the statute an intention to repeal or abolish the husband's right per quod.
The relevant provisions of the act are as follows:
L. 1911, chapter 95, page 134:
"An Act prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder."
"When employer and employee shall by agreement, either express or implied, as hereinafter provided, accept the provisions of this article compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of his employment shall be made by the employer without regard to the negligence of the employer, according to the schedule contained in sections 34:15-12 and 34:15-13 of this title in all cases except when the injury or death is intentionally self-inflicted, or when intoxication is the natural and proximate cause of injury, and the burden of the proof of such fact shall be upon the employer."
"Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee himself and for compensation for his death and shall bind his personal representatives, his widow and next of ...