Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
Mrs. Brooks was injured on June 20, 1957 when a wall cabinet containing dishes fell as she was mopping the kitchen floor in the four-room apartment occupied by her and her husband in defendant's tenement house at 512 Central Avenue, Union City, New Jersey. She and her husband, acting jointly as superintendents of the building, were given free occupancy of their apartment and $25 monthly in exchange for their services.
Mrs. Brooks sued the defendant in negligence in the Superior Court, Law Division, to recover for her injuries, and her husband joined in the action for his damages per quod. Defendant denied any negligence on its part and pleaded the usual defenses of contributory negligence, assumption of risk, and its lack of control of the instrumentality which caused Mrs. Brooks' injury. As a further separate defense, it alleged that the injuries to Mrs. Brooks were the result of an accident arising out of and in the course of her employment and for that reason her remedy was exclusively under the Workmen's Compensation Law.
The case was tried before a jury. Defendant's motions at the end of plaintiffs' case and at the close of all the evidence
for a dismissal on the ground, among others, that plaintiffs had no right to bring a common law negligence action in the Law Division because the claim was exclusively remediable in the Division of Workmen's Compensation, were denied. The jury returned a verdict in favor of the plaintiffs, awarding Mrs. Brooks $4,000 for her personal injuries and granting her husband $1,000 for his damages per quod. Defendant's motion for a new trial was denied. It thereupon appealed from the judgment based upon the jury's verdict and from the order denying a new trial.
If Mrs. Brooks' injuries were the result of an accident arising out of and in the course of her employment by the defendant, her remedy obviously would be limited to the benefits provided in the Workmen's Compensation Law. R.S. 34:15-7; New Amsterdam Casualty Co. v. Popovich , 18 N.J. 218 (1955); Dudley v. Victor Lynn Lines , 32 N.J. 479, 488 (1960). There was no evidence that plaintiffs and defendant had agreed prior to the accident to be bound by the provisions of Article 1 of the Compensation Act, R.S. 34:15-1, which permits an injured employee to sue his employer in a court of law for negligence. Accordingly, upon the hypothesis stated above, Mrs. Brooks would be obliged to pursue her claim under Article 2 of the statute, R.S. 34:15-9, in the Division of Workmen's Compensation. If her remedy was restricted to workmen's compensation benefits, her husband's per quod claim in the law action would also fall. Danek v. Hommer , 9 N.J. 56 (1952).
Was Mrs. Brooks injured in an accident arising out of and during the course of her employment? She and her husband became occupants of this apartment on the second floor of 512 Central Avenue about 1954 or 1955, when both were engaged by Mrs. Echelchik, defendant's predecessor in title, to act as superintendents of the building. Their duties consisted generally in cleaning the hallways, taking out the garbage, making minor repairs only, renting vacant apartments, collecting the rent and, during Mrs. Echelchik's ownership, depositing the rent money in the bank. As
noted above, they received for their services free occupancy of their apartment and $25 monthly. Subsequently, when defendant became owner of the premises, plaintiffs, as superintendents, received the same benefits and performed the same duties, except that they did not deposit the rent money collected but turned it over to an agent for the defendant.
Mrs. Brooks testified that most of her time was spent in the apartment house, because they were on call 24 hours a day and were, in fact, called at all hours of the day and night by the tenants because of leaks or other services required.
About 5:30 A.M. on June 19, 1957 Mrs. Brooks discovered that a leak had developed in the apartment above that occupied by plaintiffs and, as a result, great quantities of water descended into plaintiffs' apartment. Mrs. Brooks described the deluge as being "like Niagara Falls." The water covered their kitchen and bathroom floors and saturated the ceiling and walls of these rooms. Mrs. Brooks went immediately to the upstairs apartment and turned off the water there, but the water which had already escaped from the leaking pipe continued its descent into the Brookses' apartment for some time thereafter.
Defendant's business office did not open until 9 A.M., so that Mrs. Brooks was obliged to wait until that hour to give notice of the leak. She reported by telephone that the leak was a bad one and defendant said it would send someone down. The walls, ceiling and floor of her apartment had been saturated with water. However, the landlord's plumber did not arrive on June 19 and, during that entire day, water kept descending into plaintiffs' apartment and Mrs. Brooks kept mopping it up. When Mr. Brooks returned ...