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Glidear v. Charles

Decided: February 8, 1951.

HARRY GLIDEAR, PETITIONER-APPELLANT,
v.
HAROLD A. CHARLES AND HELEN G. CHARLES, RESPONDENTS APPELLEES



Freund, Proctor and Rogers. The opinion of the court was delivered by Rogers, J.A.D.

Rogers

This is a workmen's compensation case. Petitioner was injured while working as a carpenter upon the construction of respondents' new residence. The respondents let contracts for the excavation, plumbing and electrical work, but they hired artisans for the carpentry and masonry. The respondent, Mrs. Charles, hired petitioner as a carpenter to work on the house until it was completed. He had been a carpenter for 50 years. He was paid weekly at a daily rate of $10. Mrs. Charles supervised the work daily, and petitioner worked each day, except for holidays and storms, from the middle of September, 1948, until he was injured at work on November 24, 1948, a substantial time before the building was completed. Respondents were not engaged in the construction business and it was conceded that the employment was not in connection with any such vocation.

At the hearing before the Division of Workmen's Compensation respondents abandoned the defenses that (1) the petitioner was an independent contractor, and that (2) the accident did not arise out of and in the course of his employment. By amendment the defense of casual employment in other than respondents' business was interposed. The Workmen's

Compensation Division dismissed petitioner's claim for lack of jurisdiction in that petitioner's employment was not within the protection of the workmen's compensation statute because it was casual, and not regular, periodic or recurring; and the County Court affirmed the dismissal upon the same grounds. Petitioner now appeals from the judgment entered upon the latter appeal.

The section of the statute implicated in this appeal, R.S. 34:15-36 as amended P.L. 1945, c. 74, is as follows:

"* * * 'employee' is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments, 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; * * *"

The only question presented upon this appeal is whether, within the intendment of this statute, the substantially undisputed facts show that petitioner's employment was either regular, periodic or recurring in other than respondents' business.

The Deputy Director and the County Judge relied upon Larson v. Hergert , 5 N.J. Super. 367 (App. Div. 1949), to sustain their conclusions that petitioner's employment was casual and not regular. We think the Larson case does not apply. There the dismissal was affirmed upon the ground that the proof did not show, as alleged, that the employment was in connection with the employer's business. Furthermore, it was admitted that the employment was not regular, periodic or recurring. The claim before us arises from employment not in the employer's business, and whether it was regular, periodic or recurring is the pivotal issue.

Forrester v. Eckerson , 107 N.J.L. 156 (E. & A. 1930); Clausen v. Dinnebeil , 125 N.J.L. 223 (Sup. Ct. 1940), and Gray v. Greenwood , 129 N.J.L. 596 (Sup. Ct. 1943); affirmed, 130 N.J.L. 558 (E. & A. 1943), were also relied upon by the County Judge, and, in our opinion, are not controlling, because the character, circumstances and term of

the employments involved in those cases differ essentially from the employment elements before us.

In the Forrester case, the employment was for such chores at the employer's home as might be assigned from day to day for a brief period, and which were not exclusively in the employee's trade; the work was neither regular, periodic nor ...


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