Opinion
Argued May 22, 1941 —
Decided September 19, 1941.
Held, that the averments of the complaint do not reveal a cause of action for negligence under article I of the Workmen's Compensation Act.
On appeal from a judgment of the Supreme Court.
For the appellant, Samuel Craig Cowart.
For the respondent, James J. Skeffington.
Error is assigned on an order striking out the complaint. The assignment is not well grounded.
It is averred that plaintiff's decedent suffered fatal injuries while pursuing his employment with defendant. While he and several co-employees were engaged in "cleaning" one of defendant's highways with the aid of a horse-drawn truck, the horses took fright and ran over the deceased; and the gravamen of the complaint is that the defendant is liable for negligence under article I of the Workmen's Compensation Act ( R.S. 1937, 34:15-1, et seq.), since the deceased employee, at the time of the mishap, was, so it is pleaded, "not only performing his usual work for defendant, as a street cleaner, but was also, at the request of defendant, substituting for another employee, who was the regular workman for defendant in charge of driving horses to said truck, when cleaning the streets, as well as feeding and caring for them in the stable of defendant," and defendant, "by imposing this double duty on" the employee, "was guilty of negligence as said employee while shoveling up dirt from the gutter into the truck, could not" also "hold the reins securely in his hands," and lost his life when he "grabbed the reins to check" the frightened horses.
These allegations do not reveal a cause of action for negligence under article 1 of the Workmen's Compensation Act, supra. On the showing thus made, the dependents were limited to the compensation provided by article 2 of the cited statute. The administrator has no cause of action in tort. Gregutis v. Waclark Wire Works, 86 N.J.L. 610.
The judgment is affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 16.
For reversal — None.