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Mazzuchelli v. Silberberg

Decided: January 19, 1959.

JOHN MAZZUCHELLI, SR., PLAINTIFF-APPELLANT,
v.
BERT SILBERBERG AND JAMES NITOLLI, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

Plaintiff sued to recover for personal injuries sustained in a collision between cars operated by defendants Silberberg and Nitolli. He was a passenger in the Silberberg car. The trial judge ordered a judgment of involuntary dismissal as to Silberberg on the ground that plaintiff's exclusive remedy against him was under the Workmen's Compensation Act, and the correctness of that action is the sole issue on the appeal from the judgment for Silberberg. The jury found for Nitolli, and in appealing from the judgment plaintiff asserts it was error to admit evidence that he had obtained workmen's compensation as the result of the accident.

We certified the cause on our own motion before consideration of it by the Appellate Division.

I.

Silberberg and his wife, as partners, operated a package liquor store in Union City under the trade name of Summit Wine & Liquor Store. They also acquired a tavern and package liquor store in Newark which they operated under the trade name Public Service Wine & Liquor Store, apparently

the name used by their vendor. Plaintiff was employed at the Union City store at which Mrs. Silberberg devoted her time. Silberberg's practice was to tend the Newark store during the day and to leave at about 5:30 P.M. for the Union City store where he worked until the closing hour. It was part of plaintiff's duty, as an employee of the partnership, to drive Silberberg to Newark in the morning and from Newark to the Union City store at the hour just indicated. Plaintiff's day usually ended upon conclusion of the return trip.

On the day in question, plaintiff came to Newark to pick up Silberberg in accordance with the established pattern. Silberberg took the wheel for the return trip. The accident occurred while the parties were still in Newark.

Plaintiff does not quarrel with the finding that he was injured by an accident arising out of and in the course of his employment. Indeed he had successfully pressed a compensation claim against Silberberg and his wife, trading under the Summit name. He contends, however, (1) that a partner is a third person within the meaning of the provision of the compensation act preserving the common law claim of an employee against third persons, R.S. 34:15-40, and (2) alternatively, that Silberberg was not acting in furtherance of the business of the employing partnership and hence should be liable at law.

To sustain the first proposition it must be found that the partnership is a jural entity distinct from the partners and is the sole employer within the meaning of the Compensation Act. Plaintiff appreciates that Parker v. Zanghi, 45 N.J. Super. 167 (App. Div. 1957), is against him. He asks that we disapprove that case and follow Minnesota decisions which hold a partner liable at law. Gleason v. Sing, 210 Minn. 253, 297 N.W. 720 (Sup. Ct. 1941); Monson v. Arcand, 244 Minn. 440, 70 N.W. 2 d 364 (Sup. Ct. 1955).

The Uniform Partnership Law, adopted in this State in 1919, did not embrace the so-called "entity" theory. Lewis, "The Uniform Partnership ...


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