On appeal from the Workmen's Compensation Division of the Department of Labor and Industry.
Haytko's petition for an award of appellee.
workmen's compensation was dismissed on the ground that he was a casual employee within the contemplation of R.S. 34:15-36. He now appeals.
The evidence is not substantially in dispute. It shows that respondent was engaged in the manufacture and sale of pins. In the latter part of May, 1951, it was engaged in moving all or part of its plant and manufacturing facilities from Newark to North Carolina. On May 29, 1951, petitioner was employed to assist in the moving, to move, crate and load on trucks office equipment, desks, filing cabinets and other equipment. The employment was for a short, temporary, but indefinite period and Haytko understood that he was to be paid at the rate of $1.50 an hour, which was the standard rate of pay for that type work.
After working for about two hours he sustained an accident which resulted in injury and hospitalization. While at the hospital he received four or five weeks compensation for temporary disability at $25 per week, and a check for $12 representing payment for services rendered on the day of the mishap.
Evidence was offered to the effect that some time prior to Haytko's hiring one Bennett, respondent's superintendent,
told a William Dunkinson, sales manager of the Lincoln Storage Warehouse, about the impending plant and equipment removal and asked him to assist in the location of a couple of men who were experienced in packing and crating of equipment and who could be hired by respondent for that purpose. Although Dunkinson's company was not handling the moving project, at his request he did locate petitioner and another person and brought them to Bennett who hired them.
No witnesses were produced by respondent and on its motion the petition was dismissed for the reason already set forth.
Casual employment is defined specifically in the Workmen's Compensation Act (R.S. 34:15-36) 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."
Consequently where the issue is whether or not an employment is casual, two tests may be applied: (1) Is the work in connection with the employer's business? If so, did the occasion for it arise by chance or pure accident? (2) If not in connection with any ...