Glidear v. CharlesGlidear v. Charles
This is a workmen‘s compensation case. Petitioner was injured while working as a carpenter upon the construction of respondents’ new residence. The respondents let contracts for the excavation, plumbing and electrical work, but they hired artisans for the carpentry and masonry. The respondent, Mrs. Charles, hired petitioner as a carpenter to work on the house until it was completed. He hаd been a carpenter for 50 years. He was paid weekly at a daily rate of $10. Mrs. Charles supervised the work daily, and petitioner worked еach day, except for holidays and storms, from the middle of September, 1948, until he was injured at work on November 24, 1948, a substantial time before the building was сompleted. Respondents were not engaged in the construction business and it was conceded that the employment was not in conneсtion with any such vocation.
At the hearing before the Division of Workmen‘s Compensation respondents abandoned the defenses that (1) the petitioner was an independent contractor, and that (2) the accident did not arise out of and in the course of his employment. By amendment the defense of casual employment in other than respondents’ business was interposed. The Workmen‘s
The section of the statute implicated in this appeal, R.S. 34:15-36 as amended P.L. 1945, c. 74, is as follows:
“* * * `employee’ is synonymous with servant, and includes all natural persons who perform sеrvice for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer‘s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any businеss of the employer, as employment not regular, periodic or recurring; * * *”
The only question presented upon this appeal is whether, within the intendment of this statute, the substantially undisputed facts show that petitioner‘s employment was either regular, periodic or recurring in other than respondents’ business.
The Deputy Director and the County Judge relied upon Larson v. Hergert, 5 N.J. Super. 367 (App. Div. 1949), to sustain their conclusions that petitioner‘s employment was casual and not regular. We think the Larson case does not apply. Thеre the dismissal was affirmed upon the ground that the proof did not show, as alleged, that the employment was in connection with the employer‘s business. Furthermore, it was admitted that the employment was not regular, periodic or recurring. The claim before us arises from employment not in the еmployer‘s business, and whether it was regular, periodic or recurring is the pivotal issue.
Forrester v. Eckerson, 107 N.J.L. 156 (E. & A. 1930); Clausen v. Dinnebeil, 125 N.J.L. 223 (Sup. Ct. 1940), and Gray v. Greenwood, 129 N.J.L. 596 (Sup. Ct. 1943); affirmed, 130 N.J.L. 558 (E. & A. 1943), were also relied upon by the County Judge, and, in our opinion, аre not controlling, because the character, circumstances and term of
In the Forrester case, the employment was for such chores at the employer‘s home as might be assigned from day to day for a brief period, and which were not exclusively in the employee‘s trade; the work was neither regular, periodic nor reсurring, and when completed the employee returned to his regular work.
The Clausen case held that a brief job helping an owner put a new roof upon his house was casual and not compensable employment.
In the Gray case, the employment for one day at the employer‘s home of a dressmaker who had been so employed upon a few occasions irregularly over a period of years was held not to cоnstitute regular, periodic or recurring employment under the statute.
In Forrester v. Eckerson, supra, in construing the statute before us, Mr. Justices Donges for the Court of Errors and Appeals said:
“The question is, then, was plaintiff-respondent‘s work for the defendants-appellants regular, periodic or recurring?
The words, as used in this aсt, connote that employment is regular when it is steady and permanent for more than a single piece of work; recurring, when the work is to be рerformed at some future time by the same party, without further engagement; and periodic, when the work is to be performed at stated intervals, withоut further engagement.”
The varying circumstances of employment outside the scope of employer‘s business are myriad when employment is tested for the statutory non-casual requirements, — “regular, periodic or recurring.” No precise and practical definitions of compensable or casual employments under this provision of our statute suitable for all cases have been cited; and it is apparent that nоne can be composed. Each case must stand or fall upon its own facts tested by the fair meaning of the statutory standards of employment — “regular, periodic or recurring.”
Our cases indicate that steady employment in the employee‘s usual line or trade and for more than a single piece
We now turn to appraisal of the facts before us under the applicable principles cited above. It seems clear that in the case sub judice petitioner was not employed for a single piece of work, nor for a single job, in any sense indicative of casual employment. He was hired for a substаntial residence construction project of unestimated duration except its completion. The work was in his regular trade and inferably rеquired his carpentry skill in the broad area of framing, exterior, interior, rough and finished work. He was paid weekly on a daily rate, and he had worked steadily for ten weeks before he was injured. Even then his employment was not ended because the house was not yet complete. What elеments of “regular” employment in the usual or statutory sense of a “steady, permanent” nature are lacking here? We perceive none. The term of petitioner‘s employment was the completion of the construction, and we surmise in his work as a carpenter this indicated as steady and as permanent an employment as is found usually in the trade. The evidence, in our opinion, shows that petitioner established a compensable claim under the Workmen‘s Compensation Act. The court below erred in affirming the dismissal of petitioner‘s claim by the Division of Workmen‘s Compensation.
The judgment of the County Court is reversed and the cause is remanded for further proceedings consistent herewith.