14 N.J. Misc. 86 | New Jersey Department of Labor Workmen's Compensation Bureau | 1936
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2. The proofs manifest that on the evening of May 1st, 1934, the respondent made an arrangement with the petitioner whereby the petitioner on the morning of the following day, May 2d, 1934, became an employe of the respondent, as a laborer, to assist certain contractors whom the respondent had previously engaged to make certain alterations to premises known as Eo. 1299-a Paterson Plank road, Secaucus, Eew Jersey; that the work which said petitioner was engaged to perform was to assist as laborer the aforesaid contractors in the removal of flooring of the store floor of said premises, and to render assistance in the breaking and removal of concrete steps which were in front of said store premises, and carrying materials snch as lumber, brick and cement to and from the premises which were being altered by said contractors; that said petitioner was employed at the rate of fifty cents per hour, or $4 per day for eight hours per day; that in the engagement by the respondent of said petitioner for the rendition of services as laborer aforesaid there was no agreement between said parties as to the length of time that said petitioner was to work on the job which he had been employed to work upon, and that the respondent was privileged to discharge said petitioner from said employment at any time and without notice, and that the petitioner was privileged to cease working for said respondent at any time and without notice, and that such employment was only for the one particular job of assisting as laborer aforesaid in alteration aforesaid.
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4. The proofs manifest that the petitioner was one accustomed to engage himself as a laborer for or with anyone who would employ him in such respect.
5. The proofs manifest that the petitioner was in the
I do hereby further find and determine in the matter sub judice three questions were submitted to me for my consideration and determination—
(1) Casual emplojunent.
(2) Accident, if any.
(3) Notice of such accident within statutory period. My conclusions with regard thereto are as follows:
(1) That the employment of the petitioner by the respondent was casual within the purview of section 23, subdivision (c) (Cum. Supp. Comp. Stat. 1911-1924, p. 3885, § **236-32, subd. 23(c), of the statutory enactment aforesaid, which defines “casual” and divides same into two classes: (1) That which is in connection with employer’s business; (2) that which is not in connection with employer’s business. I do further find and determine that the petitioner’s employment by and with the respondent as manifested by the proofs herein was neither regular, periodic or recurring, and therefore must be classified as “casual.” In Forrester v. Eckerson, 107 N. J. L. 156; 151 Atl. Rep. 639, the court defines “regular.” “periodic” and “recurring” as follows:
“The words, as used in this act, connote that employment is regular when it is steady and permanent for more than a
“In the case under consideration there is nothing to suggest regularity of employment, because upon completion of the particular job, plaintiff would return to his usual and regular employment with the Butterine Company, nor is there any testimony that it was in contemplation that he should return to defendant’s home at any time, either fixed or indefinite, to do any work. If other work was ever to be done, a new employment would be entered into. The- employment, therefore, was casual.”
The above cited case, and the rule of law and the facts stated in the aforesaid quotation therefrom, is, in my judgment, applicable to the case sub judice.
The petitioner’s petition is therefore dismissed.
Notwithstanding my finding and determination that by reason of the fact that the employment of the petitioner with the respondent, was casual, and by reason thereof the workmen’s compensation bureau is without jurisdiction in the premises, I deem it appropriate to hereby make known that my consideration of the testimony and proofs in the case warrants me in finding and determining, and I therefore do hereby find and determine, upon the proofs herein, that the petitioner has failed to prove—(1) the happening of the alleged accident whereby the petitioner claims to have suffered an injury arising out of and in the course of his employment, casual though it be; and (2) that the petitioner has failed to prove the giving of statutory notice of the alleged happening of May 3d, 1934; and (3) that the proofs fail to show that the respondent had any notice whatever of the alleged happening to the petitioner on May 3d, 1934, prior to the telephone message communicated to him in thé latter part of September, 1934, by the petitioner’s attorney as mentioned hereinabove.
It is, therefore, ordered that the petitioner’s aforesaid petition be and is hereby dismissed.