Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
Plaintiff, as executrix of the estate of her late husband, Kenneth C. Hagen, sued the defendant, Bernard R. Koerner, and nine other defendants, in negligence for the wrongful death of her husband. The decedent died on November 17, 1958, at Westwood, New Jersey, while working for William F. Hegarty, Inc., by whom the defendant Koerner was also employed at the time and place of the fatal accident. Hagen allegedly died as a result of a charge of electricity emanating from high tension wires during the course of his employment. This action in the Superior Court, Law Division, has not yet been tried.
Pursuant to leave granted by court order of January 22, 1960, Koerner filed and served a third-party complaint against his employer, William F. Hegarty, Inc. In this pleading Koerner denies that he was negligent in any manner whatsoever. He then claims that, should it be determined that he is liable to the plaintiff executrix by reason of the fact that he was acting as an employee for and in behalf of William F. Hegarty, Inc. "pursuant to specific instructions by servants and agents of the said William F. Hegarty, Inc., and in obedience to said instructions and directions," he is entitled to be indemnified from all such liability by his said employer.
The third-party defendant, William F. Hegarty, Inc., moved without affidavits or other proofs, for entry of a judgment dismissing the third-party complaint, as upon a motion for judgment on the pleadings, pursuant to R.R. 4:12-3. It relied upon the law as stated in Farren v. New Jersey Turnpike Authority , 31 N.J. Super. 356 (App. Div. 1954). On May 9, 1960 the trial court ordered the
third-party complaint dismissed with prejudice. Koerner appeals from that order of dismissal.
In its opinion the trial court properly noted that the action was brought for damages for negligence against the named defendants; and that the plaintiff could not bring a negligence action against decedent's employer, William F. Hegarty, Inc., directly. The trial court also stated:
"Under the Workmen's Compensation Act the only liability of Hegarty is for the payment of the benefits specified in that act." (Emphasis supplied)
That statement is true under New Jersey law, so far as the injured employee is concerned. But the exclusiveness of the workmen's compensation remedy in actions brought on behalf of the injured employee does not preclude others from bringing a common law action against the employer on proper grounds. See Cafone v. Spiniello Construction Co. , 42 N.J. Super. 590 (App. Div. 1956); Cozzi v. Owens Corning Fiber Glass Corp. , 59 N.J. Super. 570 (Cty. D. Ct. 1960), affirmed 63 N.J. Super. 117 (App. Div. 1960); Metzenbaum v. Golwynne Chemicals Corp. , 159 F. Supp. 648 (D.C.S.D.N.Y. 1958).
In 101 C.J.S. Workmen's Compensation § 982(a), p. 454, the principle is set forth as follows:
"Generally, the provisions of the Workmen's Compensation Act, which makes the remedies under the act exclusive, apply to third persons suing in the employee's right, but not to those suing in their own right. Rights to death benefits other than those provided by the compensation act may or may not be affected.
Provisions of Workmen's Compensation Acts which make the payment of compensation the exclusive remedies, except for other remedies expressly provided, may apply to any person suing in the employee's rights; but not to a person suing in his own right, at least where the right arises from the breach of an independent duty of the employer to the person suing." (Emphasis supplied)
The rule of Farren v. New Jersey Turnpike Authority, supra , relied upon by the third-party defendant, provides that when an injured employee ...