Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
[35 NJSuper Page 54] In this negligence action the jury returned a verdict in favor of the defendant. The appeal
presents to us a number of alleged errors in the charge of the trial court to the jury.
Timber Structures, Inc., a manufacturer of roof trusses, had a contract to install two of them in a building in Paterson. Plaintiff was an employee of Timber and engaged in the work. The defendant, Richard A. Ench, was in the business of renting equipment and rented a crane and operator to Timber for use in putting the trusses in place. While the crane was being used for this purpose and as a result thereof, plaintiff received the injuries for which this action was brought.
One of the basic issues involved was whether the crane operator was defendant's employee or that of plaintiff's employer, Timber Structures, Inc. It was Ench's contention that the operator had come under the exclusive dominion and control of Timber, thereby acquiring the status pro hac vice of its employee, thus making the doctrine of respondeat superior inapplicable against Ench for the operator's negligence.
The first trial resulted in an involuntary dismissal of the action predicated upon a determination that under the facts proved it conclusively appeared that the crane operator was the employee of Timber Structures at the time of the accident. The Appellate Division reversed (Larocca v. American Chain & Cable Co., Inc. , 23 N.J. Super. 195 (1952)) and the Supreme Court affirmed the reversal (13 N.J. 1 (1953)), both courts declaring that the issue of the operator's status as an employee of the defendant was a factual problem for jury determination.
On the retrial which produced this appeal, the appellate mandate was followed and the issue was submitted to the jury. One of the errors now charged is that the evidence showed conclusively that there had been no transfer of control over the crane operator to Timber and consequently the question of whose employee he was at the time of the accident should not have been given to the jury; they should have been told that he remained Ench's servant. However,
all parties concede and our examination of the portions of the testimony appearing in the appendix demonstrates that the facts proved on this subject were substantially the same as at the first trial. Under the circumstances we have no doubt that the trial court was correct in permitting the jury to decide the matter.
In the course of the charge, the jury was told:
"* * * This plaintiff, Carmin Larocca, worked for this Timber Structures, Inc. Now he is not suing Timber Structures. He was an employee of Timber Structures. He can't sue them in a court like this. His suit against them would be in another court, called The Compensation Court. We have no concern about that. This is what we call a common law action based upon negligence. * * *"
An objection was interposed on the ground that "the reference to the plaintiff's other remedy, if any, in Workmen's Compensation" introduced an irrelevant and "perhaps" prejudicial element into the case. And it is now argued that a reversal of the adverse jury verdict should be ordered because of the court's statement.
The former Court of Errors and Appeals declared that the existence of a remedy under the Workmen's Compensation Act has no relevancy in a third-party negligence action brought by a plaintiff-employee; and further that a trial court is correct in refusing to charge the jury that if they found for the defendant the verdict would not leave the plaintiff without remedy because ...