Schneider, J.c.c. (temporarily assigned).
Defendant brings a motion for summary judgment. On April 5, 1961 defendant Sarah Greenstein was operating her automobile, and plaintiff was a passenger in said car. The car struck a pole and plaintiff was injured. Plaintiff sued in negligence for her personal injury. She was a domestic servant in the employ of the Greenstein family and worked one day per week. She was hired by defendant and her work was under the direction and control of defendant. The accident occurred while plaintiff was being driven by defendant from the bus station to defendant's home.
Plaintiff filed a petition applying for compensation under the Workmen's Compensation Law of New Jersey by reason of the injury sustained in the accident. The petition was filed against the husband of defendant and a judgment was awarded. The present suit was filed March 20, 1963.
Defendant contends that she is the employer of plaintiff; that the injury arose out of and in the course of the employment and that the sole remedy available to the plaintiff is the relief under the Workmen's Compensation Law. Plaintiff contends that the husband is the employer and that a third-party suit therefore may be brought against the wife.
In the case of Auten v. Johnston, 115 N.J.L. 71 (Sup. Ct. 1935), it was held:
"* * * The presumption is that, in the employment of a house servant, the wife acts as the agent of her husband; to fix upon her such a contractual liability, it must affirmatively appear that she hired the servants on her own individual credit. * * *" (at page 75)
The court held that the principle was rooted in the obligation of the husband to provide for the wife; the wife does not incur personal liability in discharging her duties in the household, and the law regards her as the agent of the husband.
Auten was a workmen's compensation case and the court held the husband to be the employer for the purpose of protecting the wife as a member of the household and not for the purpose of creating a new liability upon the wife. Plaintiff relies upon that case, but this court is of the opinion that the decision does not create a third-party liability in the wife where compensation is sought under the Workmen's Compensation Law of New Jersey. The entire tenor of the decision was to protect the wife against liability.
Again in Stewart v. Brant, 19 N.J. Misc. 37, 17 A. 2 d 275 (W.C.B. 1940), it was held that the husband was presumed to be the employer, but here again, the purpose was to protect the wife against liability.
Defendant contends that the wife who acts as her husband's agent in the hiring and controlling of a domestic servant has immunity from a civil suit. N.J.S.A. 34:15-8 provides as follows:
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 ...