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Stillwell v. McGrath

Decided: October 26, 1964.

GERALD STILLWELL, AN INFANT, BY HIS GUARDIAN AD LITEM, SARAH E. STILLWELL, AND SARAH E. STILLWELL, INDIVIDUALLY, PLAINTIFFS,
v.
MARGARET A. MCGRATH, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. THOMAS ANTOZZESKI, THIRD-PARTY DEFENDANT



Civil action. On motion for summary judgment of dismissal of third-party complaint.

Wood, A.c., J.c.c. (temporarily assigned).

Wood

[85 NJSuper Page 253] This case is before the court on motion by Thomas Antozzeski, the third-party defendant, for summary judgment of dismissal of the third-party complaint filed against him in the cause.

From the pleadings and admissions on file (R.R. 4:58-3) the following facts appear:

On or about December 8, 1962 the minor plaintiff, Gerald Stillwell, was a volunteer fireman and a member of the Humane Fire Company Rescue Squad of the City of Bordentown. On that day he was a passenger in an ambulance owned by Hope Hose Company Rescue Squad, also of Bordentown. The operator of the ambulance was the third-party defendant Antozzeski, who was a member of both the Hope and Humane Rescue Squads. The ambulance was responding to an emergency call. At the intersection of Farnsworth Avenue and State Highway Route 130 in the Township of Bordentown the ambulance was in collision with an automobile operated by defendant Margaret A. McGrath. Stillwell sustained injuries in said accident, to recover damages for which this suit was instituted against defendant McGrath, who in turn joined Antozzeski as third-party defendant, charging him with negligence and demanding that such negligence be adjudged the sole cause of the accident, and, in the alternative, demanding contribution under the Joint Tortfeasors Act. It is admitted that the minor plaintiff Stillwell received workmen's compensation benefits from the compensation carrier for the City of Bordentown for the injuries which he received. It is likewise admitted that Stillwell and Antozzeski were both rescue squad volunteer workers at the time of the accident.

Antozzeski now moves for summary judgment of dismissal of the third-party complaint, upon the ground that, on the undisputed facts, he and Stillwell were "fellow employees" at the time of the accident, and that action against Antozzeski is therefore barred by the provisions of N.J.S.A. 34:15-8, which provides, inter alia:

"If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong."

Defendant-third-party plaintiff resists the motion on the ground that Stillwell and Antozzeski were not "fellow employees" within the meaning of the statute above quoted. It is argued that although both men were members of the Humane Rescue Squad, only Antozzeski was a member of the Hope Rescue Squad and that, as such, he was operating the ambulance, owned by Hope, as its agent. Since Stillwell was not a member of Hope but only of Humane, it is contended that he was not a fellow-employee of Antozzeski. Hence, it is argued, Antozzeski is not immune from common-law liability to Stillwell and therefore is not immune from liability for contribution to defendant McGrath.

The question for determination, then, is whether third-party defendant Antozzeski is immune from suit by virtue of the above-quoted provisions of N.J.S.A. 34:15-8. This involves consideration of the status of both Stillwell and Antozzeski in the present factual setting, in the light of N.J.S.A. 34:15-43. That statute extends broadly the protection and benefits of the Workmen's Compensation Law to volunteer firemen and rescue squad workers while engaged in their humanitarian avocation. In pertinent part it provides as follows:

"* * * every active volunteer, first aid or rescue squad worker, including each and every authorized worker who is not a member of the volunteer fire company within which the first aid or rescue squad may have been created, doing public first aid or rescue duty under the control or supervision of any commission, council or any other governing body of any municipality * * * shall be compensated under and by virtue of the provisions of this article and article 2 of this chapter (sections 34:15-7 et seq.). * * *

Every active volunteer, first aid or rescue squad worker, including every authorized worker who is not a member of the volunteer fire company within which the first aid or rescue squad may have been created, shall be deemed to be doing public first aid or rescue duty under the control or supervision of any such commission, council [or] governing body * * * within the meaning of this section if such control or supervision is provided for by statute, or if the first aid or rescue squad of which he is a member or authorized ...


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