Danek v. HommerDanek v. Hommer
Plaintiff husband, without the joinder of his wife, here sues per quod for loss of consortium of his wife, due to injuries which she received while in defendant‘s employ. The wife, as such employee, has already received an award for such injuries from the present defendant as her employer, in proceedings under Article 2 of the Workmen‘s Compensation Act.
After the institution of this suit the defendant employer obtained from the court the right to file a complaint against its above insurance carrier, as a third-party defendant, for a declaration of its rights under its compensation insurance contract, as well as under a public liability contract. The parties to this third-party action agree to stay proceedings thereon until the determination of the question presently raised in the main proceeding by the above husband against the above employer of the wife.
In these main proceedings the defendant employer moves for summary judgment against plaintiff husband on the
The primary issue to be determined is, therefore, whether or not the Legislature intended the elective and contractual compensation provisions of Article 2 of the Workmen‘s Compensation Act, when applicable, to be a complete substitute for the previous admittedly unsatisfactory common law actions in tort for negligence, available to the employee and those connected with him. Of course, this does not apply to the rights of either employer or employee against third-party tortfeasors, as to whom the Workmen‘s Compensation Act has set up a remedy which our highest court has recently held to be exclusive. United States Casualty Co. v. Hercules Powder Co., 4 N.J. 157 (1950). Nor does it apply to situations where Article 2 of the act does not apply because employer and employee have chosen to remain under Article 1. For here the new contract remedies are inapplicable, the old tort remedies on the part of not only the employee but his parents or spouse still remaining applicable, subject to the provisions of the act barring certain previous defenses available to the employer in such tort actions by the employee at least.
Of course, there is not the slightest question that previous to the enactment of the various workmen‘s compensation statutes, not only in New Jersey but throughout the United States, the common law tort procedures for recovery for accidental injury or death, arising out of and in the course
From both the humane and economic standpoints this act substitutes, on the one hand, a much more certain recovery for the benefit of all those who suffer from injury and death, and, on the other hand, imposes a much more certain and regularly recurring recovery, in a way which the employer can more readily calculate, and provide against, as a further factor in the expense of doing business. Thus, the employee and those connected with him are protected personally, and so is the employer through his ability to shift this cost of accident to the industry itself. So far all will agree.
The sole question is whether, when the Legislature substituted this relatively certain recovery on contract, beneficial in fact to employer, employee, and those dependent on him, it intended, at the same time that it admittedly wiped out the previous unsatisfactory and uncertain recovery in tort by the employee, to retain, and impose on the employer, the equally uncertain and unsatisfactory ancillary recovery in tort, by those connected with the employee.
In that case the Court of Errors and Appeals said, as to Article 2 of the Workmen‘s Compensation Act: “The damages to be paid by the employer in case of death are limited by that act and an action cannot be maintained in disregard of that act. * * * The scheme of the act is to give compensation in lieu of damages to certain dependents and not to next of kin as such * * * the power of the Legislature to give or withhold a right of action in such case and to declare to whom and in what amount compensation shall be made cannot be doubted.” (Italics ours.) Next came the case of Young v. Sterling Leather Works, 91 N.J.L. 289 (E. & A. 1917). In that case the court had the following to say as to its viewpoint that Article 2 of the Workmen‘s Compensation Act was a complete substitute for the previous common law rights of recovery: “It is to be borne in mind that the act we are considering is one of social insurance and is a complete institution created by the legislature in the interest of employer and employee. * * * The legislature had the clear
Shortly thereafter, in the Hartman case, supra, our highest court said: “the weekly compensation based on wages is intended as compensation to the injured employe and his dependents for all elements of damages.” (Italics ours.) In Miller v. National Chair Co., 127 N.J.L. 414 (Sup. Ct. 1941); affirmed 129 N.J.L. 98 (E. & A. 1942), the court restates the same doctrine as follows: “The declared policy of article 2 is to preclude any other recovery or measure of compensation in cases ruled by its terms.” In that case our highest court quotes from the decision of the United States Supreme Court in Bradford Electric Light Co. v. Clapper, 286 U.S. 145 (1932). Curiously a clerical error appears in this quotation, the decision of the United States Supreme Court, as approved by the Court of Errors and Appeals, having been that as to the Vermont Workmen‘s Compensation Act, that this act provided “not only for employees a remedy which is both expeditious and independent of proof of fault, but also for employers a liability which is limited and determinate.” (Not employees as said in the Miller case). Obviously, the husband‘s common law action per quod in tort does not comprise “a liability which is limited and determinate.” Thus, the United States Supreme Court joins with our New Jersey courts in their viewpoint that the compensation provisions of the Workmen‘s Compensation Act are intended to be a complete substitute for previous common law proceedings for all concerned. Indeed, in Burns v. Vilardo, 26 N.J. Misc. 277 (Sup. Ct. 1948), it was expressly held that where a wife had recovered a compensation award, as here, she could not sue in tort thereafter, nor could her husband sue per quod, as here. Finally, in the recent case of U.S. Casualty Co. v. Hercules Powder Co., supra, our
Thus our highest court has long since held that Article 2 of the Workmen‘s Compensation Act, here in question, is a complete substitute for the previous common law tort recovery, not only of the employee but of those connected with him, these holdings having covered not only the employee‘s parents but his dependents in case of death. That our courts in these decisions correctly interpreted the intention of the State Legislature must not only be legally presumed, but is also evidenced in fact, since, despite the annual sessions of our Legislature thereafter, the Workmen‘s Compensation Act has remained unamended in that regard for 30 years since such decisions. State v. Moresh, 122 N.J.L. 77 (E. & A. 1939); Barringer v. Miele, 6 N.J. 144 (1951); Mechanics Finance Co. v. Austin, 11 N.J. Super. 399 (App. Div. 1951).
That the legal profession itself has clearly agreed with this intention of the Legislature, to make Article 2 of the Workmen‘s Compensation Act a complete substitute for the earlier tortious common law remedies of the employee and those connected with him, is clearly evident from the fact that the present suit is the first case known, since the above decisions 30 years ago, in which a recovery per quod has been sought by a husband, after the injured spouse has received a compensation award in full. This of itself raises an additional question as to the legality of such claim. Snegon v. Consolidated, &c., Ins. Co., 117 N.J. Eq. 325 (Ch. 1934); Burlington County v. Martin, 129 N.J.L. 92 (E. & A. 1942).
That the inspiration for the present claim comes, not from the New Jersey statute and decisions, but from the
Further, it should be borne in mind that there is a split in the authorities throughout the country, as to whether the various workmen‘s compensation acts were intended to be a complete substitute, in the form of a remedy on contract, for the previous unsatisfactory common law remedies in tort, between employer, employee, and those connected with him. In this split the Hitaffer case simply represents one of the decisions which take the viewpoint contrary to that for which the courts of New Jersey and those of many other jurisdictions have long stood. Indeed, by many of these authorities, New Jersey has long been recognized from its above decisions (Young v. Sterling Leather Works, supra; Buonfiglio v. Neumann & Co., supra; Hartman v. Unexcelled Mfg. Co., supra; Gregutis v. Waclark Wire Works, supra) as having been the basic and original exponent of the principle that the Workmen‘s Compensation Act was intended to be such a
The contrary line of decisions, exemplified by the Hitaffer case, supra, include King v. Viscoloid Co., 106 N.E. 988 (Mass. 1914); Allen v. Trester, 199 N.W. 841 (Neb. 1924); Roxana Petroleum Co. v. Cope, 269 P. 1084 (Okla. 1928);
In addition, it might be noted that the award made the wife in such cases as this, covers not only temporary and permanent compensation for her inability to function as a human being, a much broader criterion than mere loss of earnings, including even disfigurement and loss of sexual power for instance, (Everhart v. Newark Cleaning & Dyeing Co., 119 N.J.L. 108 (E. & A. 1937); Hercules Powder Co. v. Morris Common Pleas, 93 N.J.L. 93 (Sup. Ct. 1919)), but that it also covers medical expenses. All of the above, to some extent at least, would be exactly what a husband
Further, the words of the act should be noted, in the very paragraph dealing with the statute‘s “construction,” that, while Article 1 of the act is expressly stated to be “in extension of the common law,” such is not said of Article 2, that setting up the compensation schedule here applicable. Since “expressio unius est exclusio alterius,” it would seem that the Legislature did not intend that Article 2 — the compensation schedule here in question — should be considered as merely an “extension of the common law.” If not, then such schedule must be in substitution of the common law. If in substitution of the common law, as above, the continuance of the common law remedy, covering much the same subject matter, would be clearly inconsistent with such purpose of substitution.
Despite the above, plaintiff relies in support of his action, not only upon the above line of cases, to the contrary of the various authorities above cited which follow the above New Jersey decisions, but also calls attention to the wording of various provisions of the New Jersey statute. For instance, he alludes to the provision that the statute constitutes “a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article.”
Were this case res nova, there might be substantial force to this line of reasoning. But, the answer is, it is not res nova. As seen above, our courts have held for years that not only an employee but those connected with him, both as a parent and as a representative of his dependents in case of his death, have been granted by the Legislature, within its sovereign power (Young v. Sterling Leather Works, supra), a more satisfactory remedy, in full substitution for the less salutary remedy they had at common law. That our Legislature has not only in law, but in fact, approved of this construction of the act has been evidenced by its acquiescence therein for more than 30 legislative sessions. Furthermore, while there may be a slight distinction between the control of a father over the earnings of his daughter, and that of a husband over the earnings of his wife, it is assuming a good deal to believe that the New Jersey Legislature had any such fine distinction as this in mind when it enacted the Workmen‘s Compensation Act in 1911. Again, can it be sensibly presumed that the Legislature intended that, after
Since the cause of action on which the plaintiff sues has thus been wiped out by the Legislature, the question whether this cause of action is barred by the statute of limitations, and the other points raised in plaintiff‘s brief, become moot, together with the entire ancillary third party proceedings above alluded to.
Summary judgment may accordingly be entered for defendant.