On appeal from New Jersey Department of Labor and Industry, Division of Workmen's Compensation.
Dorothy Felice, wife of Thomas Felice, a partner in the respondent partnership, filed a claim petition seeking to recover compensation for injuries sustained by her while employed by the partnership. The Deputy Director dismissed the claim petition upon the ground that the petitioner, the wife of one of the partners, cannot maintain a claim for compensation under the act, against the partnership. It is from this dismissal that the petitioner appeals to this court.
The facts in this case have been stipulated between counsel for the respective parties, and substantially are as follows:
The respondent is a partnership, consisting of Thomas Felice and Anthony J. Felice. The partnership commenced business in August of 1948, and continues its operations from its place of business in Camden, New Jersey, and is engaged in the general business of the sale of office equipment, stationery and related items.
The petitioner, Dorothy Felice, is the wife of one of the partners, to wit: Anthony J. Felice, and it was stipulated that she was in the employ of the partnership as a secretary, on the date of the accident, September 27, 1951.
On that date, the petitioner was making a deposit on behalf of the partners for the partnership account, and while returning from the bank, to the car, and while getting into the car, she struck her head on the body of the vehicle, at the top of the door frame. As a result of this accident, she received injuries for which she filed a petition, in order to recover benefits under the Workmen's Compensation Act.
The only question involved on this appeal is whether compensation is recoverable under the Workmen's Compensation Act (R.S. 34:15-7 et seq.) by a wife who was injured while serving a partnership, at a stipulated weekly salary, in the operation of a business in which her husband was one of the partners.
The question for my determination is of first impression in this State.
In the case of Bendler v. Bendler , 3 N.J. 161, 69 A. 2 d 302 (Sup. Ct. 1949), it was held that in order for a party to recover compensation, it is necessary to find a contractual relationship, creating an employer-employee relationship. In that case, a husband was injured while serving his wife in the operation of a business, which she conducted separate and apart from him. The court held that employment ordinarily presupposes a contractual relationship, and denied the husband the right to recover. The court stated as follows:
"But a contract of hire between spouses is utterly void and unenforceable at law. The acts empowering a married woman to bind herself by contract as if a femme sole, and to sue and be sued in her own name, apart from her husband, have not so far severed the unity of person and interest of husband and wife in the law as that their contracts inter se are enforceable at law and are no longer the subject of jurisdiction in courts of equity alone. The disablement of husband and wife to contract with and to sue each other continues 'except as heretofore, and except as authorized' by the provisions of the chapter relating to married persons embodied in the Revision of 1937. P.L. 1852, p. 407; Revision of 1874, p. 468, sections 5, 10, 11, 14; Revision of 1877, p. 638, sections 5, 10, 11, 14; P.L. 1895, p. 821; Comp. Stat. 1910, p. 3226, sections 5, 10, 11, 14; P.L. 1934, p. 490; R.S. 37:2-5, 37:2-6, 37:2-16, Vide Alpaugh ...