For the prosecutor, Theodore Strong & Son (Russell Fleming, of counsel).
For the defendant, Clarkson A. Cranmer.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. The question requiring decision is whether petitioner is entitled, by virtue of 2 Rev. Stat. (1937) 34:15-74 (source, chapter 172, Pamph. L. 1931, p. 382), to compensation for injuries which he received while in the performance of services as a member of a volunteer fire company which had been formed pursuant to 1 Rev. Stat. (1937) 15:8-1 (source, chapter CLXXVI, Pamph. L. 1876, p. 286). We do not think so.
Petitioner was a member and secretary of the Franklin Fire Company No. 1, which is a volunteer fire company. He received no compensation from this company, but earned his livelihood as an employe of the Calco Chemical Company of Franklin township. On August 3d, 1936, he was injured while driving a fire engine to a fire in that township. The township only, appears to have filed an answer. It should be observed that there is nothing to indicate the disposition made of petitioner's claim against the fire company. No point, however, is made on this score.
While the proofs disclose a reference by the petitioner to the alleged existence of an oral agreement between the township and the fire company for the rendition of fire protection, which agreement was supposedly made prior to petitioner's affiliation with the fire company, yet there is not a scintilla of legal proof in support of the existence of such an agreement. Petitioner, in fact, admits that his reference thereto was based on clear hearsay. There is, however, plenary proof to support the finding, and we so find, that there was no contract between the fire company, or petitioner, and respondent, creating the relationship of employer and employe between them. Nor is there any proof from which it may be properly inferred that respondent exercised, or had the right to exercise, control, supervision or regulation of either the fire company or petitioner. There is proof that respondent, at the end of each year, contributed, by way of gift, to petitioner's fire company -- as it did to other companies in varying amounts -- the sum of $100. See 2 Rev. Stat., supra, 40:47-27 (source, chapter 245, Pamph. L. 1933, p. 668).
The workmen's compensation bureau found that petitioner was an employe of Franklin township under the pertinent provisions of 2 Rev. Stat., supra, 34:15-43 (chapter 355, Pamph. L. 1931, p. 873); that the accident arose out of and in the course of that employment; and that petitioner was entitled to compensation based upon his weekly wage in his private employment, in accordance with 2 Rev. Stat., supra, 34:15-75 (chapter 172, Pamph. L. 1931, p. 382, § 2).
Respondent appealed to the Somerset County Court of Common Pleas. That court determined, inter alia, that 2 Rev. Stat., supra, 34:15-74 (chapter 172, Pamph. L. 1931, p. 382, § 1), requiring that "the governing body of every municipality * * * provide compensation insurance for volunteer firemen * * *" applied only to firemen belonging to those companies formed under 2 Rev. Stat., supra, 40:149-10, 11 (chapter 61, Pamph. L. 1987, p. 137), and not to companies formed, as was petitioner's, under 1 Rev. Stat., supra, 15:8-1 (chapter CLXXVI, Pamph. L. 1876, p. 286).
Accordingly, the judgment of the bureau was reversed, and the petition for compensation was dismissed. This court granted certiorari.
In considering and determining the issue here involved, we must bear in mind certain settled and basic principles. 1. A necessary prerequisite for recovery under the Workmen's Compensation act is the existence of the relation of employer-employe. Corbett v. Starrett Bros., Inc. (Court of Errors and Appeals), 105 N.J.L. 228; 143 A. 352; Rojeski v. Pennington Dairy Farms, Inc., 118 N.J.L. 335; 192 A. 746. 2. In order for that relation to exist, there must be a valid contract of service together with the right or power in the employer to control the employe with respect to the transaction out of ...