Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
[34 NJSuper Page 389] A single question is presented by this appeal. Felice Office Equipment Co. is a partnership consisting of Anthony Felice and Thomas Felice. Appellant, Dorothy Felice, is the wife of Anthony Felice; she is also an employee of the partnership. On September 27, 1951 she suffered an accident which arose out of and in the
course of her employment and she subsequently sought workmen's compensation. Her petition was dismissed in the Division of Workmen's Compensation and the County Court affirmed the dismissal. Both tribunals predicated their action on Bendler v. Bendler , 3 N.J. 161 (1949), which was deemed controlling. The issue to be determined then is whether an employee is barred from recovering the monetary benefits of the Compensation Act against a partnership employer because she is the wife of one of the partners.
At the outset it should be noted that the employment is not disputed. In fact, it appears that the wages of Mrs. Felice were included in the aggregate payroll of the partnership upon which the premium for the compulsory workmen's compensation insurance (R.S. 34:15-70 et seq.) was computed.
The Bendler case, supra , which was considered dispositive in the Division and in the County Court, involved a direct action between a husband and wife predicated on a contract of employment between them. The wife owned and operated a business and employed her husband to assist her. He was injured and sought compensation. The Supreme Court sustained the rejection of the claim, saying:
"But a contract of hire between spouses is utterly void and unenforceable at law. * * *
"* * * Article II of the Compensation Act is not applicable where the relationship of master and servant does not subsist; and there is no such relation where the purported contract of hire is void at law. * * *" (3 N.J. , at pages 168, 171.)
Manifestly, if that case is applicable it is binding here also. However, a differentiation is sought to be made on the ground that the partnership is the employer and not either one or both of the individuals who compose it. Basically, therefore, the question is: For purposes of the Workmen's Compensation Act, does a partnership employer have an individualism so detached from its members as to permit claims against it as an entity?
The act declares an employer to include "natural persons, partnerships, and corporations." Employee is defined as synonymous with servant and as including all natural persons who perform service for another for financial consideration, with certain exclusions not significant here, except perhaps to note that an employee wife of a member of a partnership is not one of them. N.J.S.A. 34:15-36.
Under the common law a partnership had no existence apart from its members who had to be sued as individuals on partnership obligations. However, as the Supreme Court observed in X-L Liquors, Inc. v. Taylor , 17 N.J. 444 (February 14, 1955), with the passage of time and the commercial development of our country, partnerships "came to be widely regarded as separate entities by men in their business affairs and legislatures and courts began to make inroads into the common-law doctrine."
The Uniform Partnership Law, adopted in New Jersey in 1919 (R.S. 42:1-1 et seq.), exhibits a recognition of this development and treats a partnership as an entity in a number of respects. For example a partnership is defined as a "person" (R.S. 42:1-2); real estate may be acquired in the partnership name and when so acquired is conveyable only in that name. R.S. 42:1-8. Significant, too, are the legislative elimination of any dower right of a partner's wife therein, and the declaration that such property shall not be subject to attachment or execution on a claim against an individual partner but only on actions against the partnership. R.S. 42:1-25.
It may be noted in passing that section 5 of the act (R.S. 42:1-5) says that "In any case not provided for in this chapter the rules of law and equity, including the law merchant, shall govern." The law of merchants has long recognized a partnership as an entity separate and distinct from its members. Burdick, Partnership (2 d ed. 1906), 2. And here it is relevant to point out that bankruptcy proceedings may be instituted against a partnership as an entity. 40 Am. Jur., ...