On appeal from Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J.
Stacy and Wolff were injured in an automobile accident on a New Jersey highway while returning to New York City from a work assignment in Pennsylvania for their employer, Marlene Blouse Corporation of New York City. They sue Greenberg, the corporation's sales manager, who was driving the car in which they were passengers, and Meltzer, the corporation's president, in whose individual name the car was registered. The defense is that their sole remedy is under the New York Workmen's Compensation Law (McK., Consol. Laws of New York, c. 67), subsection 6 of section 29 of that law providing:
"The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ."
At an earlier stage of the litigation, Stacy v. Greenberg, 9 N.J. 390 (1952), we held that as a matter of comity our courts should give effect to the New York statute, but that summary judgment in favor of defendants was properly denied in light of the conflict in the opposing affidavits on
the motion therefor whether Greenberg at the time of the mishap was "another in the same employ" with plaintiffs within the meaning of the New York law. At the trial plaintiffs obtained judgments on jury verdicts which the Appellate Division affirmed, 26 N.J. Super. 457 (1953). We allowed certification on defendants' petition, 13 N.J. 313 (1953).
The substantial question is whether the trial judge erred in refusing to enter judgment for the defendants on motion.
The testimony on behalf of the parties is in substantial agreement. The employer sells apparel in New York City manufactured for it by a concern in Nazareth, Pennsylvania. Its executives and key employees frequently make the trip from New York to Nazareth on matters concerned with this business. They may travel by means of their choice but often drive and not infrequently in the Cadillac convertible registered in Meltzer's name but purchased by the corporation and maintained and garaged at its expense. On this occasion the plaintiffs and defendants and two other employees drove to Nazareth in the Cadillac on Friday afternoon, September 9, 1949, on such a business mission. The party completed the work at about noon on the following day. Meltzer decided to return to New York with the Nazareth plant manager in the latter's car. In the presence of Stacy and Wolff, Meltzer, in Stacy's words, said to Greenberg, "Dave, do me a favor, take my car back to New York and if the boys wish to go, take them." Greenberg acceded to the request and Stacy and Wolff elected to go with him. It also appeared that on other trips, although not on this one, Meltzer used the Cadillac for his personal pleasure to visit resorts or neighboring places of entertainment.
As on the previous appeal, the parties agree that plaintiffs and Greenberg remained in the course of their employment "so far as compensation benefits are concerned" until their return to New York. In our earlier decision, after examining pertinent New York authorities pursuant to a stipulation of counsel that "all decisions of the New York courts which
may be cited by counsel shall be deemed to be in evidence for the purpose of the determination by the court as to the State of New York law," we concluded that, though Greenberg and plaintiffs might be entitled to compensation benefits under the New York Act for their hurts, Stacy and Wolff were barred by the statute from maintaining common law actions against Greenberg only if Greenberg's act of driving was in the authorized performance of a job for his employer. Meltzer's affidavit on the motion for summary judgment contended that Greenberg was driving "solely" in the performance of such a duty, but Stacy's affidavit asserted that "the car was being returned to New York by Greenberg purely for the accommodation of Meltzer individually."
The pretrial order made after the coming down of our first opinion supplements the prior stipulation with a provision that "It will be conceded at trial that law of N.Y. as recited in opinion of the Supreme Court and the cases relative ...