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Wilkerson v. Steinberg & Spielfogel Inc.

Decided: January 19, 1943.


On certiorari.

For the petitioner-respondent, Anschelewitz & Barr (Joseph F. Mattice, of Counsel).

For the respondent-prosecutor, Foley & Francis (Gerald T. Foley, of counsel).

Before Brogan, Chief Justice, and Justices Parker and Porter.


The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. This is a compensation case. The petitioner was awarded compensation in the Bureau and, on appeal to the Pleas, the Bureau was affirmed. We allowed certiorari. The question raised is whether the petitioner suffered a compensable injury, arising out of and in the course of his employment, when it happens, as here, that at the time of the injury he was performing no service for his employer. The facts are as follows: The petitioner was engaged as a "helper" on the delivery truck of Steinberg & Spielfogel, Inc., wholesale grocers. It was not a full time job; he was employed periodically when needed. On the day of his mishap petitioner was hired for work by one of the company's drivers, Venable, on the authority of a foreman,

Riley. Late that day he was injured in the performance of work, unrelated to his duty to the employer, undertaken at the direction of Riley. The work undertaken was moving furniture, the property of one Drake (with whom Riley boarded), from Asbury Park to Deal, New Jersey.

To get down to particulars -- the petitioner testified that he had worked for the company on and off, for five or six years, for one, two or three days a week; that on the morning in question he worked at the employer's warehouse for an hour and a half and then went to Asbury Park and worked moving furniture until noon; that after lunch he again worked loading a truck at the employer's plant after which he and Venable resumed the job of moving the Drake furniture and in so doing he fell and was injured. Taken back to the plant, he advised Riley that the moving job was not completed because of his injury and that he was going to visit his doctor. He was paid $2 by Riley for his day's wage and Venable gave him some money, probably $3, which he described as a "tip" for the work moving furniture. Riley's testimony was that he authorized the hiring of the petitioner and he paid him $2 for the day; that the company was not in the trucking business generally, although occasionally moving work for themselves and "members of the family" was done but not for "out-siders." Another witness, Schnar, an employee of respondent, revealed that the company moved furniture but only for members of the firm.

The driver, Venable, testifying for the respondent, said he was requested by Riley to move Drake's furniture; that Riley owned a truck which he kept in the employer's garage but that it wasn't in working order on the day in question, whereupon Riley directed the witness to use one of the company trucks, which he did. The witness said that no work was done for the respondent on that day and that he hired the petitioner for the job of moving the furniture, at Riley's request; that Drake gave him $6, half of which he gave to Wilkerson. Mr. Steinberg, manager of the respondent, produced the payroll book and said it did not show that Wilkerson was employed on the day of the accident and that Riley had no authority to have furniture moved; that the driver,

Venable, reported for work on December 21st, 1940, and that helpers were paid out of petty cash by Riley. On the crossexamination it was brought out that the payroll book to which the witness referred showed an alteration on December 21st, 1940. The book was put in evidence but it is not printed in the state of case. Riley, called this time by respondent, said that Wilkerson was on the premises on the day of the accident, brought there by Venable, and that Venable worked that day. He denied instructing the driver to move the furniture; denied any knowledge of how Venable came to move it and asserted that his own truck was in good condition. Called on rebuttal, petitioner said that at the time of his hiring nothing was said to him by the driver about moving furniture.

The referee in the Bureau believed the petitioner's testimony and held that where there is a deviation in employment it must be shown that the change was made known to the employee and that he consented thereto; and that ...

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