Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
The problem which primarily concerns us here is the difficult one of choice of law where the cause of action of an injured employee for negligence by a third person is disposed of differently by the workmen's compensation statutes of the state of injury, on the one hand, and, on the other, of the state where the employer, employee and the defendant reside, the employment contract was made, and the business of the employer is primarily carried on.
The defendant, a resident of this State, with offices and place of business at Collingswood, New Jersey, contracted in Pennsylvania with Sunday Breakfast Association, in December 1953, for the removal of wooden eaves and the installation of a metal cornice on the building of the Association in Philadelphia. Thereafter defendant subcontracted with J. W. Tragle, of Haddonfield, New Jersey, by agreement made in New Jersey, for the supplying and installation of the cornice, defendant to erect a scaffold and prepare the site for Tragle's workmen. Plaintiff, a resident of Camden, New Jersey, had for some time been in the employ of Tragle under a hiring effected in this state. On January 27, 1954, as such an employee of Tragle, plaintiff was working at the
site of the cornice installation in Philadelphia when he fell from the scaffold and sustained the injuries for which he brought the present action in the Law Division, asserting a claim for damages for injuries caused by defendant's negligence in the construction and maintenance of the scaffold. Plaintiff had first sought and been allowed an award of workmen's compensation in New Jersey as against his employer, Tragle. One of the defenses in the present action was that plaintiff had no cause of action against defendant under the law of Pennsylvania, because, under the circumstances obtaining when he was injured, he was a "statutory employee" of the defendant, within the workmen's compensation act of that commonwealth, under which plaintiff's common law remedy against the defendant was barred and his rights restricted to compensation at statutory rates. Upon the filing of a stipulation of facts setting forth the facts recited, as well as others, defendant successfully moved for summary judgment.
The principal basis for the decision of the trial court was that under the appropriate rule of conflict of laws plaintiff's rights against defendant were controlled by the tort rule of liability of Pennsylvania, the place of the injury. The argument of plaintiff that the workmen's compensation law of New Jersey, which would allow the common law action, should be applied in view of the contractual nature of the employment relationship, was rejected on the ground that "plaintiff was not a party to the contract between Tragle and the defendant."
At the outset it is to be observed that questions of full faith and credit under the United States Constitution are not posed in the Statement of Questions Involved in the briefs, nor, apparently, were they raised in the County Court, and, therefore, the determination of the issue at hand does not require retracing the ground gone over in such recent cases as Buccheri v. Montgomery Ward & Co. , 19 N.J. 594
(1955), and Bowers v. American Bridge Co. , 43 N.J. Super. 48 (App. Div. 1956), affirmed 24 N.J. 390 (1957), although consideration of the relative interests of both states in the relationships and legal consequences involved will be found pertinent in the matter of choice of law as well as in that of full faith and credit and decisions in both fields sometimes mutually relevant. 2 Larson, Workmen's Compensation (1952), chapter XVI, p. 355 et seq.; Comment , 23 Univ. of Chi. L. Rev. 515 (1956); Case Note , 67 Harv. L. Rev. 1281 (1954). We accept and deal with the present issue, as litigated by the parties both at the trial level and here, as one basically calling for a determination as to appropriate choice of law. However, there are passing statements in the body of defendant's brief assuming that full faith and credit requires affirmance of the judgment, and we will deal with the point later in this opinion.
Obviously the first step in the problem is resolution of the inquiry as to whether the substantive legal question presented is, as was assumed by the trial court, a matter primarily of tort law, rather than some other category of the law. Goodrich, Conflict of Laws (3 d ed. 1949), § 9, pp. 15-17. If it was, the trial judgment was correct, 2 Beale, Conflict of Laws (1935), § 378.2, p. 1289, as the law of the place of wrong normally determines whether there is a cause of action for the wrong. The general question of characterization or classification of workmen's compensation problems for purposes of choice of compensation remedy in interstate situations has stirred a variety of responses in the decisions, the most common of which are the tort, contract and employment relation concepts. 2 Larson, op. cit., supra , § 87.21, p. 379; § 87.31, p. 385; § 87.41, p. 389. The tort theory is that workmen's compensation laws are a statutory substitute for tort liability, the consequence being that the lex loci delicti should govern. The contract theory is that the workmen's compensation law of the state where the employment contract is made is imported, by statutory "election," into that contract and is generally controlling. There is evidence of strong doctrinal support for that view
in the decisions of our courts, although there has not heretofore been a frontal consideration of the matter from a choice of law standpoint. See Gotkin v. Weinberg , 2 N.J. 305 (1949); Miller v. National Chair Co. , 127 N.J.L. 414 (Sup. Ct. 1941), affirmed 129 N.J.L. 98 (E. & A. 1942); Stacy v. Greenberg , 9 N.J. 390 (1952); Buccheri v. Montgomery Ward & Co. and Bowers v. American Bridge Co. , both supra; English v. Stokes Molded Products , 43 N.J. Super. 68, 76 (App. Div. 1956). The employment relation theory, described by Larson (op. cit., supra , § 87.41, p. 389), as "the most relevant to compensation theory and the least artificial," and in Comment , 23 Univ. of Chi. L. Rev., supra , at p. 521, as "more realistic," gives controlling weight to the law of the state wherein the employer-employee relationship is situated. But in this as well as the related field of the incidence of the full faith and credit clause of the Constitution numerous and complex variations in the kinds of factual contacts which can be found between a particular litigation and two or more states have practically defied attempts at doctrinal classification along symmetrical and logical lines and forced the resolution of particular cases on the basis of what is aptly described in Buccheri v. Montgomery Ward & Co., supra , as "an interest weighing approach" (19 N.J. , at page 602), some of the relevant considerations being listed as "the place of employment contracts; the residence of the parties; the place of injury; the possibility of the workman becoming a public charge in the state seeking to award compensation." (Ibid.)
To return to the specific problem at hand, the emphasis of defendant's argument is that since the present action is one at common law in tort, not a claim for workmen's compensation, the substantive legal issue implicated is therefore necessarily one of tort and that consequently the conflict of laws solution should be achieved from a tort, rather than an employment-relation, or workmen's compensation, approach, thus calling for decision on the basis of the law ...