For the prosecutor, Edwin Jos. O'Brien.
For the respondent, Hudspeth & Harris.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. By concession of each party, the real and only issue in this case is whether Morris Greenhaus, deceased, was or was not employed by the prosecutor at the
time of the accident resulting in his death. Did the statutory relationship of employer and employe exist between the parties? The bureau held that it did not; the Court of Common Pleas of Hudson County held that it did. Which is correct?
Under subdivision (c) of paragraph 23, section 3, general provisions, of our Workmen's Compensation act (Pamph. L. 1919, ch. 93, p. 211), it is provided:
"(c) Employer is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; employe is synonymous with servant and includes all natural persons who perform service 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 business of the employer, as employment not regular, periodic or recurring." (Italics ours).
To constitute one an employe it is essential that there shall be a contract of service. Honnold on Workmen's Compensation, chapter 51, page 176 (1918 ed). The test by which to determine whether one person is another's employe, within the rule making the employer liable for injuries resulting from the negligence of this employe, is whether the alleged employer possesses the power to control the other person in respect to the transaction out of which the injury arose. Ibid. ch. 49, pp. 167, 168. See 20 C.J. 1241.
The prosecutor is a corporation. How could it be bound?
In the case of Erie Railroad Co. v. S.J. Groves & Sons Co., 114 N.J.L. 216; 176 A. 377, the writer of this opinion for the Court of Errors and Appeals restated the law applicable as follows:
"It was incumbent upon the plaintiff to show that the contract upon which suit was brought was the contract of the defendant. To bind the defendant the contract must be proven to have been the act of the defendant either by corporate ...