Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
[74 NJSuper Page 344] Defendant insurance company appeals from a judgment in plaintiff's favor in the sum of $4,259.32, besides interest from February 8, 1960 and costs, granted by the Superior Court, Law Division, sitting without a jury. Suit had been based on two insurance policies issued by the defendant, insuring plaintiff against
loss resulting from injury or sickness, subject to the exceptions, limitations and provisions of each policy.
Plaintiff was injured on November 16, 1959, while the policies were in effect. He fell while he was attempting to get from a ladder to a scaffolding which he had erected against the outside wall of a house located at 905-907 Brighton Place, Ocean City, New Jersey. Plaintiff had erected the scaffold and had attempted to get on it for the purpose of examining the eave, extending out from the side of the building at a point between the first and second stories of this two-story dwelling, to determine whether it should be repaired. One of the outriggers broke, causing plaintiff to fall to the pavement with consequent injury.
Plaintiff's losses under the terms of the policies, consisting of his hospital, nursing, medical and other miscellaneous expenses, were stipulated at the trial. After making allowance for a $500 deductible provision, the net loss was fixed at $4,259.32, the amount for which judgment was entered.
The building where the accident occurred was owned by the Brighton Apartment Company, a New Jersey corporation, incorporated in 1936. On the date of the accident plaintiff was president and treasurer of this corporation and was owner of record of 449 shares, out of 550 shares issued and outstanding. His wife, Emma Johnson, held 100 shares and was secretary. A Mrs. Campbell held one share and was listed as vice-president. These three officers constituted the board of directors. Brighton Apartment Company owned three two-family houses and two boardwalk properties with stores, all of which were leased for use during the summer months only. It also had some stock investments. Plaintiff handled the leasing of the buildings to the summer occupants, took care of the maintenance of the outside of the various places, and hired painters, carpenters and others when painting and repairs to the buildings were needed. He effected transfer of securities owned by the corporation and the transfer of its real estate.
He and his wife took care of any complaints. She collected rents and arranged for the care of the inside of the houses.
Plaintiff never received any salary from the corporation, or any promise of salary in futuro , for services rendered by him for the corporation or on its behalf. Brighton Apartment Company never paid a salary to any of its officers. It never paid a dividend. When plaintiff's mother died in 1949, a mortgage held by her on the corporation's property was inherited by plaintiff and the corporation never paid any interest on or any part of the principal of that mortgage. The net worth of the corporation did increase, thus enhancing the value of plaintiff's shares in the enterprise. Plaintiff conducted an insurance business from his home and operated with his son a confection business on the boardwalk in Ocean City.
The defendant insurance company contended in the Law Division, as it does here, that it is not liable to plaintiff because of the following express exclusionary provisions in the policies. Hospital, Nurse, Medical and Surgical Policy No. 120315, insuring plaintiff, provides in Part II under "Exclusions":
"This policy does not cover any loss caused by or resulting from (1) injury or sickness for which compensation is payable under any Workmen's Compensation or Occupational Disease Law * * *."
Premier Expense Hospital Policy No. 33561, also insuring plaintiff, contains in Part IV thereof, under "Exclusions" this provision:
"This policy does not cover any loss caused or contributed by (1) injury or sickness for which compensation is payable under any Workmen's Compensation or Occupational Disease Act or Law; * * *."
In brief, defendant argues that plaintiff was an employee of the Brighton Apartment Company within the meaning of our Workmen's Compensation Act, N.J.S.A. 34:15-36, at the time of ...