For the prosecutor Newark Star-Ledger, Osborne, Cornish & Scheck (Ervin S. Fulop, of counsel).
For the prosecutor Liberty Mutual Insurance Company, John W. Taylor.
For New Jersey Press Association, amicus curiae, Carey & Lane (Robert Carey and Harry Lane, of counsel).
For the respondent, Fox & Krieger (Harry Krieger, of counsel).
Before Justices Parker, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a workmen's compensation case. R.S. 34:15-7, et seq. The basic question for decision on the facts of this case is whether petitioner was correctly adjudged to have suffered a compensable accident, or whether petitioner should have been adjudged not to have suffered such an accident because, as urged for prosecutors, his employer and its insurance carrier, petitioner was "engaged" in one or more of the activities set down in R.S. 34:15-36, paragraph 3, which reads as follows:
"A person engaged in the vending, selling or offering for sale or delivering directly to the general public newspapers, * * * or acting as sales agent or distributor as an independent contractor of or for any such newspaper, * * * shall not be considered an employee within the provisions of this chapter."
Petitioner, a school boy, twelve years of age, employed by prosecutor news company, hereafter referred to as prosecutor, as its "distributor," or as its "route man," under the terms and conditions more fully hereinafter set forth, worked from one of its "district offices" (No. 7) at 20-22 Parkhurst Street, Newark, New Jersey, under the immediate "charge and control" of the branch manager of that office.
On May 7th, 1940, petitioner, after serving the subscribers on his route (No. 715), returned to prosecutor's branch office with an undelivered copy of its paper intended for a prospective subscriber, a Mrs. Todd. According to the petitioner he was directed by the branch manager to deliver this paper to an "unknown house" around the corner, and according to the branch manager he told petitioner, as he was leaving for
home, "to put [the paper] in some house as I asked him to put it in some house where he could come back and get a customer later on." At all events, while allegedly carrying out the stated direction or request, petitioner met with an accident. He suffered "a fracture about two and one-half inches above the knee" of his right leg and as a result of the "overriding" and "everything that goes with that type of a fracture, there has been [among other things] a shortening of the right leg."
Petitioner, by his next friend, his father, filed an employee's claim petition for compensation. Prosecutor by its answer denied that petitioner had sustained an accident which arose out of and in the course of his employment, and denied that he was an employee within the meaning of the act. Prosecutor further raised the defenses that petitioner was not an employee because he was engaged in the activities set down in R.S. 34:15-36, paragraph 3, and that he was not employed contrary to the Child Labor Law. R.S. 34:15-10.
This case has been before the Workmen's Compensation Bureau (hereinafter referred to as the Bureau) and the Essex County Court of Common Pleas (hereinafter referred to as the Pleas) on two separate occasions with the same results in each tribunal.
On the first occasion in the Bureau, pursuant to stipulation, evidence was to have been adduced solely on the question of the liability. Presentation of evidence as to the "extent of liability" was made to abide the determination of liability. Evidence was adduced extra the stipulation. On the evidence so adduced, the deputy commissioner ...