For the prosecutor, McDermott, Enright & Carpenter (Carl S. Kuebler, of counsel).
For the respondent, John W. Taylor.
Before Brogan, Chief Justice, and Justices Case and Heher.
BROGAN, CHIEF JUSTICE. Certiorari was allowed to review a judgment of the Compensation Bureau which dismissed the claim petition of the prosecutor. The writ goes directly to the judgment of the Bureau, the accident having happened out of the state (Cf. R.S. 1937, 34:15-66). The question is whether the petitioner's decedent, at the time he met his death, was an "employee" in the statutory sense. If he was, the respondent concedes that his death arose out of and in the course of the employment.
The decedent, Charles M. Burdick, was in the trucking business in Erie, Pennsylvania. As such truckman he operated tractors, vans and gasoline tank wagons and had in his employ several helpers and drivers. On May 10th, 1940,
together with a helper, Lawrence Hanner, an employee of ten years standing, Burdick delivered a truck load of goods in the New York area. There he learned from Carl Myatt, a freight loader in his employ, that the respondent herein, Liberty Motor Freight Lines, Inc. (hereinafter referred to as "Liberty") wanted a shipment of oil taken from Newark to Buffalo. Thereupon the decedent and Hanner drove to Newark "to pick up a load of oil * * * and deliver it in Buffalo." Burdick's truck was taken to Bayway, New Jersey, by employees of Liberty, where it was loaded with oil, and returned to Newark, whereupon it was taken over by Burdick and Hanner who then started on the trip to Buffalso, Burdick doing the driving. En route, at or near Ramapo, New York, a tire on the trailer blew out. The decedent and Hanner drove up to a gas station to put on a substitute tire and while Mr. Burdick was putting air into a spare tire, it blew out and he received injuries from which he died the following day.
The petition was dismissed, the learned referee holding that the decedent at the time was an independent contractor and therefore not an employee within the provisions of the Workmen's Compensation Act. The respondent and the decedent, at the time of the hiring, entered into an agreement, in writing. It was labeled "Lease of motor vehicle equipment for one trip" and therein the decedent (referred to in the agreement as the lessor) leased to Liberty the said vehicle for one trip from Newark to Buffalo, the equipment to be under the complete control of Liberty "to the exclusion of all parties whomsoever including the lessor." Compensation was stipulated at so much per ton, the lessor to furnish qualified drivers and helpers who were to be subject to the control, management, direction and orders of the lessee (Liberty), said drivers and helpers to be considered as employees of the lessee and not of the lessor. Provision was made in the contract for workmen's compensation insurance, social security and unemployment insurance.
In addition to urging the dismissal of the petition on the independent-contractor theory, it was further contended by Liberty, as a second point, that the employment, if any, was casual. This second point will have our consideration later.
The Workmen's Compensation Act defines the terms "employer," "employee" and "casual employment" as follows: "* * * 'Employer' is declared to be synonymous with master and includes natural persons, partnerships and corporations; 'employee' is synonymous with servant, and includes all natural persons, who perform services for another for financial consideration, exclusive of casual employment, 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." Those in casual employment therefore are, by the statute, excluded from the benefits of the Workmen's Compensation Act, which enure only to those who are employees within the statutory definition.
Under the provisions of agreement for the leasing of the motor equipment, we cannot say that the decedent was not an employee within the intendment of the statute. Our conclusion is the exact opposite. Many of the normal conditions of employment, it is true, are not present, viz., the deceased and his helper were not carried on the payroll of Liberty; the compensation of the deceased was not definite and fixed, rather it was indeterminate, the undertaking being one that might result in a profit or a loss to Burdick; the helper's wages were to be paid by Burdick, not by Liberty, unless it chose to do so, in which event reimbursement was to come from Burdick. There was a like provision in the agreement as to the cost of the trip for gasoline, garaging, & c. Such conditions are not usual in an employer-employee relationship and yet the parties, by their agreement, in unmistakable terms determined the status of the deceased and his helper and under that agreement those who undertook delivery of the oil for Liberty were designated as its employees. It is our duty to enforce the contract as ...