On appeal from the Superior Court, Law Division.
For affirmance in part and reversal in part -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance in toto -- Justice Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J.
[9 NJ Page 393] The question here is whether New York residents employed by a New York corporation under contracts of employment entered into in New York who sustained injuries in an automobile accident in
this State while returning to New York City from a work assignment in Pennsylvania, and who are entitled to benefits for such injuries under the New York Compensation Law (McK. Consol. Laws of New York, c. 67), may maintain common law actions in negligence in our Superior Court, Law Division, against the corporation president who owned, and the corporation sales manager who operated the automobile in which they were passengers.
Plaintiffs brought separate actions. The Law Division entered a like interlocutory order in each suit, upon motion of each plaintiff, striking a separate defense which interposed as a bar to the maintenance of the suit subdivision 6 of section 29 of the New York act precluding any action by an employee covered by the act for injuries sustained in the course of his employment against "another in the same employ" based upon such other's negligence or wrong. Each order also denied defendants' counter-motion for summary judgment.
The Appellate Division granted leave to appeal pursuant to Rule 4:2-2(b) and we have certified the appeals of our own motion.
Marlene Blouse Corporation was a New York corporation having its place of business in New York City. Plaintiffs, Stacy and Wolff, were employed by the corporation under contracts of employment entered into in New York. Defendant Meltzer was president of the corporation, and defendant Greenberg was its sales manager. Meltzer drove the group in his Cadillac automobile (maintained, however, at the expense of the corporation) from New York City to Nazareth, Pennsylvania, on the company's business. He did not accompany the group on the return trip, but at his request Greenberg drove the car back with plaintiffs as passengers. The mishap occurred en route back to New York City on September 10, 1949. Stacy and Wolff each brought suit by complaint filed February 6, 1950, in the Superior Court, Law Division, against Greenberg as operator and Meltzer as owner of the Cadillac to recover for the injuries sustained.
Meltzer's alleged liability is predicated solely upon the allegation that Greenberg was driving the automobile "as agent and servant" of Meltzer and that Greenberg's negligence is therefore "chargeable to" Meltzer.
The separate defense in each case, supported by an affidavit of Meltzer, alleges that Marlene Blouse Corporation "provided for compensation to be paid to the plaintiff in accordance with the terms of the said [New York] Act." This is not denied by plaintiffs' affidavits and may be taken as admitted. Plaintiffs admit that Marlene Blouse Corporation has paid all of plaintiffs' medical and hospital bills and full salary until the week ending November 5, 1949, and partial up to and including March 4, 1950, but each states that the payments "were not made nor accepted by me as compensation benefits under the New York statute" but "solely as a gesture by an employer to an employee with the understanding" "to pay the moneys out of any recovery" obtained. Neither plaintiff has made a claim for compensation under the New York statute.
If controlling effect be given to the Workmen's Compensation Law of New York, a question discussed hereinafter, and Greenberg was a person "not in the same employ" with plaintiffs at the time of the accident, subsection 1 of section 29 of that law permits plaintiffs to maintain the instant actions subject to specified liens upon any recovery. The actions were brought within the times limited by that subsection. And they are maintainable even if the payments admittedly received by plaintiffs were taken as compensation and medical benefits under the New York act. The subsection expressly authorizes timely actions based upon "the negligence or wrong of another not in the same employ," though the injured employee "may take such compensation and medical benefits." If, however, Greenberg was another "in the same employ" with plaintiffs when the mishap occurred, subsection 6 of section 29 of the act, if given effect by our courts, precludes plaintiffs from maintaining the instant suits against the defendants.
Well established principles of comity require that our courts give full effect to the New York statute upon the facts presented here. The New York statute became an integral part of plaintiffs' employment contracts when those contracts were entered into in New York. Post v. Burger & Gohlke, 216 N.Y. 544, 111 N.E. 351 (Ct. App. 1916). It is the incorporation of the terms of the New York Workmen's Compensation Law into his contract of employment entered into in that state which entitles the employee who sustains injuries outside of New York in the course of doing work incident to his New York employment to benefits under the New York law. Smith v. Aerovane Utilities Corp., 259 N.Y. 126, 181 N.E. 72 (Ct. App. 1932); Leary v. M.J. Daley & Co., 261 N.Y. 552, 185 N.E. 734 (Ct. App. 1933); Klein v. Pepe, 99 N.Y.S. 2 d 794 (Sup. Ct. 1950); cf. Cameron v. Ellis Construction Co., 252 N.Y. 394, 169 N.E. 622 (Ct. App. 1930), remittitur amended 253 ...