On appeal from Cape May County Court.
McGeehan, Donges and Colie. The opinion of the court was delivered by Donges, J.A.D.
Certiorari was allowed to review the determination of the Cape May County Court affirming an award in the Workmen's Compensation Bureau in favor of petitioner-respondent, for disability resulting from an accident which was alleged to have arisen out of and in the course of his employment by the defendant-appellant, on February 2, 1946.
The accident and the injury to respondent are not controverted. Two questions were raised at the hearing and argued here, namely: (1) Was petitioner an employee of the defendant? (2) Did petitioner sustain an accident arising out of and in the course of his employment?
The answer to both questions is to be found in the testimony of petitioner, much of which was not denied. Petitioner had a truck and defendant through its superintendent, engaged him to work 8 hours a day for 6 days a week at a fixed amount. Petitioner testified that he did hauling, as he was directed by the persons having authority to direct employees as to their
duties and that he performed whatever work he was directed to do. The superintendent of construction for defendant, Henry Witte, testified that he hired petitioner. On direct examination he testified:
"Q. Did you hire George Mayo? A. Yes * * *.
"Q. What did you hire him to do? A. Well, to do general hauling.
"Q. What did he have that induced you, if anything, to hire him? A. He had a truck. I hired him and the truck.
"Q. At what price? A. $40.00 a week.
"Q. Now, did he perform his work of hauling? A. Yes.
"Q. Who told him what to do? A. Well, I told him ...