The opinion of the court was delivered by STEIN, S.J.A.D. (temporarily assigned).
This appeal is from a summary judgment entered in the Superior Court, Law Division, Essex County, pursuant to Rule 3:56 in favor of the plaintiff and against the defendants Nicholas Popovich,
Two separate petitions for compensation were filed in the Workmen's Compensation Division, one against the present defendant and the other against Kramer, the plaintiff's assured. The two petitions were consolidated for trial. Each respondent in the compensation proceedings in effect denied employment of the decedent at the time of the accident. The deputy director who heard the matter found in favor of the decedent's infant daughter against both Popovich and Kramer and awarded her $24.50 a week until her eighteenth birthday, a total of $22,932. He based his ruling upon a finding of fact that both Popovich and Kramer were engaged in a joint venture and that both respondents were "jointly and equally liable."
Upon the entry of the judgment in the Division, the daughter's guardian proceeded, pursuant to R.S. 34:15-84, against the New Amsterdam Casualty Company (the plaintiff herein) to compel payment of the award on the ground that it had issued a workmen's compensation insurance policy to the Kramer company. In those proceedings a judgment was entered requiring the New Amsterdam Casualty Company to pay the award. Under that judgment the New Amsterdam Casualty Company has paid the weekly payments as they became due, together with costs and counsel fees, and will be obligated to continue making weekly payments until the entire award has been paid. The New Amsterdam Casualty Company brought the instant suit to secure contribution from the Popoviches to the extent of one-half the payments already made.
The trial court entered summary judgment in favor of the plaintiff for one-half the sums already paid on account of the said award. The learned trial court held that the common-law rule prescribing contribution between joint tortfeasors (since changed by N.J.S. 2A:53A-3) was not applicable here because an employer's liability under our Workmen's Compensation Act rests not upon tort but upon contract; that the plaintiff insurance carrier succeeded to the rights of its assured against the co-employer; and that "the joint status of these co-employers was of integral relevance in the Workmen's Compensation Bureau litigation from the judgment in which no appeal was taken, all involved parties having been effectively before the court in the legal sense, and the status of equality so adjudicated is res adjudicata as to that element."
We agree with the conclusion of the trial court that the common-law rule denying contribution between joint tortfeasors is not applicable here. The right of an injured employee to recover workmen's compensation arises not ex delicto but by reason of a statutory contract. Danek v. Hommer, 9 N.J. 56 (1952). The trial court, however, erred in holding that the judgment of the Workmen's Compensation Division was res judicata of the rights of the two respondents inter sese.
In limine we note that the Division of Workmen's Compensation of the Department of Labor is not a court. It is a quasi-judicial division of a department of the executive branch of the government. Mulhearn v. Federal Shipbuilding
But even if the Division were a court instead of an administrative tribunal, its determination could not be binding upon the instant parties. "Where a court has incidentally determined a matter which it would have had no jurisdiction to determine in an action brought directly to determine it, the judgment is not conclusive in a subsequent action brought to determine the matter directly." Restatement of the Law of Judgments, § 71. Here, in order to indicate from whom the petitioner could collect her award, the Division of necessity was required to determine the common liability of both respondents to the petitioner. It lacked the power, however, to adjudicate that liability between the respondents themselves. Indeed, the Workmen's Compensation Act is devoid of any provision for the filing of a counterclaim or crossclaim of any kind.
In the case of Pearlman v. Truppo, 10 N.J. Misc. 477, 159 A. 623, 624 (Sup. Ct. 1932), Justice (then Judge) Ackerson said:
"It is fundamental and universal that the former judgment proffered as res adjudicata in a subsequent suit must have been rendered in an action in which the parties to the subsequent suit were
The rule annunciated by Justice Ackerson is supported by the great weight of authority in this country. Mr. Freeman, in his scholarly treatise on the Law of Judgments (5th ed.), § 422 says:
"Parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they were adversary parties in the original action. There must have been an issue or controversy between them."
See also Black on Judgments (2nd ed.), § 599; Van Fleet on Former Adjudication, § 256; Bigelow on Estoppel (6th ed.), p. 113; and Chand on Res Adjudicata, § 77. In Bigelow's text, supra, the author epitomizes the rule as follows:
"Judgment against several defendants cannot, however, determine the rights of the defendants inter sese. Thus, if judgment be given against several co-contractors, and satisfaction is obtained by one of them, he cannot use the judgment as binding evidence against the others of their liability to him to contribute."
A great many authorities on both sides of the subject have been collected in an annotation appearing in 101 A.L.R. 104, et seq.
Among the cases tending to sustain the doctrine announced by the text-writers and cases above considered, see Warren v. Boston & M.R. Co., 163 Mass. 484, 40 N.E. 895 (Sup. Jud. Ct. 1895); Harvey v. Osborn, 55 Ind. 535 (Sup. Ct. 1877);
We think it must be held that an award in the Workmen's Compensation Division against several co-employers is not res judicata of their rights inter sese in a subsequent action between them for contribution.