Breslin, R.w., J.c.c., Temporarily Assigned.
[123 NJSuper Page 498] This action evolves from a collision between two automobiles
that occurred on January 29, 1969 on Mountain Avenue in the Township of Springfield, Union County, New Jersey. Plaintiff Rose Marshall and defendant Ruth Force were responding to an emergency call as members of the Springfield First Aid Squad. Pursuant to a prearranged plan, Mrs. Force had picked up Mrs. Marshall at the latter's home and they were on their way to the First Aid Squad headquarters to obtain an ambulance. They were travelling in a vehicle driven by Mrs. Force and owned by defendant Force Machinery Co. when a collision occurred with a vehicle owned by defendant Edythe Margolis and operated by defendant Edward Margolis. Mrs. Marshall sustained injuries as a result of the collision and instituted the instant action against Mrs. Force and Edward Margolis for their allegedly negligent operation of the vehicle, and against Force Machinery Co. and Edythe Margolis, as respective owners of the two vehicles, on the basis of alleged agency relationships between said owners and the operators of the respective vehicles. Richard Marshall, Rose Marshall's husband, asserts a per quod claim against the same defendants.
Motions for summary judgment have been filed on behalf of defendant Force Machinery Co. on the ground that the undisputed facts establish that Ruth Force was not its agent in operating the vehicle, and on behalf of defendant Ruth Force on the ground that the injury to Rose Marshall was compensable under the Workmen's Compensation Act and therefore N.J.S.A. 34:15-8 precludes this claim as one against a co-employee.
In opposing the motion of defendant Force Machinery Co. plaintiffs rely on the familiar presumption that the operator of a motor vehicle was the agent of the owner and was operating the vehicle within the scope of the agency. Cowan v. Kaminow , 128 N.J.L. 398 (E. & A. 1942); Tischler v. Steinholtz , 99 N.J.L. 149 (E. & A. 1923). The presumption, however, is rebuttable, and if the owner presents uncontradicted evidence that the driver was not, in fact, his agent, the trial judge must decide the issue in
In the instant case it appears without dispute that at the time of the accident defendant Ruth Force was operating the vehicle for the purpose of responding to an emergency call in connection with her membership in the Springfield First Aid Squad. Such activity had nothing to do with the Force Machinery Co. The fact, brought out in the deposition of Mrs. Force, that her husband was the principal stockholder of the company and that she herself owned stock in the company in no way serves to support a finding of agency. That she had been given permission by Force Machinery Co. to use the vehicle is also irrelevant in the face of the undisputed fact that she was not serving the interests of the company at the time. The motion by defendant Force Machinery Co. for summary judgment must therefore be granted.
Plaintiff Rose Marshall received an award pursuant to the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq. , by a judgment of the Division of Workmen's Compensation dated July 26, 1971. The award was based upon the injuries in the accident in question. Defendant Ruth Force contends that she is therefore entitled to the benefit of N.J.S.A. 34:15-8, which provides in relevant part:
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.
Plaintiffs contend that it has not been established that the accident was one "arising out of and in the course of his or her employment," N.J.S.A. 34:15-7, nor that the injury was therefore "compensable under this article," N.J.S.A. 34:15-8. Initially, the court finds it difficult to justify the instant claim against Mrs. Force since plaintiffs now attempt to abandon and disavow allegations that were
implicitly made on Mrs. Marshall's behalf in the proceeding before the Division of Workmen's Compensation, i.e. , that the accident was one arising out of and in the course of employment and was compensable under the act. Would it not be reasonable for the court to hold that plaintiffs are now estopped to make contrary allegations, or that a binding election was made when the compensation claim was filed and pursued to judgment? What plaintiffs attempt to do here is to be distinguished from a case where, after receiving a compensation award, an employee proceeds against a third party on the theory that, in fact, the injury was caused by the negligence of the third party, either solely or jointly with negligence imputable to the employer. Such a course of action is implicitly recognized by N.J.S.A. 34:15-40 ("Liability of Third Party") and does not involve inconsistent allegations on the part of the employee, since pinpointing responsibility in negligence is not the object of the compensation proceeding. In the instant case plaintiffs legitimately proceed against Edythe and Edward Margolis for their alleged negligence. On the other hand, determinations as to whether the injury was employment-related and therefore compensable under the act are relevant to the compensation proceeding and, in fact, involve ...