143 A. 313 | N.J. | 1928
Richard L. Davey, the appellant, instituted an action to recover damages for personal injuries received *179 by him. The defendants were the Delaware, Lackawanna and Western Railroad Company and the Lehigh Valley Railroad Company. The plaintiff alleged that the defendants, or one of them, owned a tugboat or ship known as the "Auburn," which was on navigable waters near a repair yard of the defendants located at West Brighton, Staten Island, New York; that he was a pipe-fitter engaged in the repair of said vessel; that while so engaged he was injured by the appliances and instrumentalities furnished by the defendants, and that said injury was due to the negligent failure to supply him with proper instrumentalities for his work and the failure to use reasonable care in the inspection thereof. The plaintiff inferentially alleged that he was engaged in interstate commerce. The defendant moved to strike out the complaint. The ground of the motion was that the cause of action was for a maritime tort and such an action is cognizable exclusively in admiralty, and the Supreme Court has no jurisdiction to entertain an action of this nature. The motion was granted. An order was entered striking out the complaint and dismissing the cause of action. From this order, which is in the nature of a final judgment, the plaintiff below has appealed. The only question for our decision is whether the Supreme Court has jurisdiction to entertain the cause of action alleged by the plaintiff.
This question, directly or indirectly, and in one form or another, has received the consideration of the courts of this state in a number of cases. In Coon v. Kennedy,
In O'Brien v. Scandinavian American Line,
In March v. Vulcan Iron Works,
Later, the case of Tucillo v. John T. Clark Son,
Prior to the enactment of the Workmen's Compensation act the law was that a maritime tort of the nature of the one sued on in the present case could be sued on at common law or in an admiralty court at the option of the injured party. TheHamilton,
Our attention has been called to the case of Messel v.Foundation Co.,
Accepting this decision as binding upon this court if there be statutes of this state similar to those in Louisiana, we have examined the Workmen's Compensation act to see whether it is exclusive of other forms of remedy. Is the common law now competent in New Jersey to give a remedy in the case under consideration? An examination of the Workmen's Compensation act of this state discloses that section 1 of the act has no application. Paragraph 7 of the act provides that when employers and employes shall by agreement, either express or implied, or as hereinafter provided, accept the provisions of section 2 of this act, compensation for personal injuries to or for the death of such employe by accident arising out of and in the course of his employment shall be made by his employer without regard to the negligence of the employer according to the schedule contained in paragraph 11, * * * c. Paragraph 8 provides that such agreemeent shall be 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 section 2 of this act, and an acceptance of all the provisions of section 2 of this act, and shall bind the employe himself * * * as well as the employer * * *. Section 9, in effect, provides that every contract or hiring shall be presumed to have been made with reference to the provisions of section 2. There is nothing so far as we can find in this act which contains a similar provision to the Louisiana code hereinbefore recited. For these reasons we are of the opinion that the case of Messel v. Foundation Co., supra, has no application to the present case. *183
Upon the authority of Bockhop v. Phoenix Transit Co.,supra, and March v. Vulcan Iron Works, supra, we think the order striking out the plaintiff's complaint was proper. The judgment of the Supreme Court is, accordingly, affirmed, with costs.
For affirmance — TRENCHARD, PARKER, MINTURN, KATZENBACH, WHITE, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 9.
For reversal — BLACK, CAMPBELL, LLOYD, VAN BUSKIRK, JJ. 4.