Defendant City of Wildwood argues to add August C. Schultes, Sr., August C. Schultes, Jr., James F. Schultes and Mary E. Schultes, t/a A. C. Schultes & Sons, and the New Amsterdam Casualty Company as third-party defendants. The court heard counsel orally, Mr. Koury appearing for Cole and Cole and Mr. Connery for Horace G. Brown, and suggested briefs which later were filed.
The present case arises out of a suit instituted by the personal representative of Marshall Yearicks, deceased, against the City of Wildwood and the Atlantic City Electric Company, and it is asserted that Yearicks, while an employee
of A. C. Schultes & Sons, well-drilling contractors, sustained fatal injuries through electrocution on the premises of the defendant, City of Wildwood. The complaint alleges that the negligence of the City of Wildwood and the Atlantic City Electric Company, supplier of the electric power used by the City of Wildwood in the operation of its pumping station, resulted in the death of Yearicks.
Counsel for the plaintiff admits that in view of the fact that the plaintiff already has availed herself of the Workmen's Compensation Act, any right or remedy which she might have against the Schultes has been satisfied by the Compensation Act. Neither at common law nor in tort has the plaintiff a cause of action against her decedent's employer, A. C. Schultes & Sons.
Counsel for the motion contends that under third-party practice he should prevail. To the court's attention he brings Rule 3:14-1:
"A defendant may move, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him * * *."
The basis for the motion is alleged in three separate counts of the City of Wildwood's third-party complaint. The first and third counts assert that under a written contract between the city and A. C. Schultes & Sons there was an indemnification provision to save the city harmless "from all damages to which the said City or any of its officers, agents or servants may be put by reason of injury to the person or property of others resulting from carelessness in the performance of said work, or through the negligence of the said Contractor, or through any improper or defective machinery, implements or supplies used by the said Contractor in the aforesaid work or through any act or omission on the part of the said Contract or his agents or servants," and that by reason of said acts or omissions on the part of Schultes or its agents, Yearicks was killed. The third count also
asserts a right of action against the New Amsterdam Casualty Company, surety, to the extent of $4,592.50 on the indemnity bond filed by Schultes with the city. In short, the right of action asserted in the first and third counts is based on indemnification.
In the second count, it is asserted that Schultes should be brought into the case as a third-party defendant because Schultes is a joint tortfeasor and claims a right of contribution against Schultes, agreeable to N.J.S. 2 A:53 A -1 to 4, which reads:
"For the purpose of this act the term ['joint tortfeasors'] means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. A master and ...