McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
This workmen's compensation case presents the questions whether the lower tribunals properly considered respondent's defense of casual employment, and, if so, whether the proofs sustained the dismissal of the claim petition upon that ground.
The burden of proving casual employment is upon the respondent. The petitioner is not obliged to disprove it. Burdick v. Liberty Motor Freight Lines, Inc. , 128 N.J.L. 229 (Sup. Ct. 1942). However, if, while establishing an employment, the evidence shows a casual employment only, the petitioner is not to have an award merely because the respondent fails expressly to plead or to assert the defense. The right to compensation is purely statutory, see Nagy v. Ford Motor Company , 6 N.J. 341 (1951), and if petitioner was a casual employee when the accident occurred, he is excluded from benefits by the express terms of the act, R.S. 34:15-36; Burdick v. Liberty Motor Freight Lines, Inc., supra.
Without question the better practice is for the respondent affirmatively to plead the defense in the answer or, at least, as was done in the Burdick case, expressly to deny that petitioner is an employee within the meaning of the terms and provisions of the act. The petitioner is entitled to fair notice of the defenses he will be called upon to meet at the hearing. Respondent's answer here merely denies that petitioner met with an accident arising out of and in the course of his employment. This hardly sufficed to put the petitioner on notice that respondent intended to rely on the defense of casual employment; indeed, petitioner could logically infer from the answer filed that he was not to be confronted with that defense as respondent affirmatively pleaded that petitioner was an independent contractor.
At the close of petitioner's proofs respondent moved to dismiss the petition on the ground such proofs showed petitioner was a casual employee. He also asked leave to amend the answer to set up the defense of casual employment if the deputy director deemed an amendment to be necessary, insisting, however, that the issue was sufficiently raised by the denial in the answer that petitioner suffered an accident arising out of and in the course of his employment. Petitioner's attorney objected to the allowance of an amendment. Clearly, when an amendment is sought over objection it should not be allowed in a manner prejudicial to the opposing party. The practice followed in the courts should obtain. Hahn v. Hahn , 17 N.J. Super. 17 (App. Div. 1951); Rule 3:15-2. Leave to amend should be granted with considerable liberality. If the objecting party makes a showing of surprise or other good reason, the practice of the deputy director should be to grant such continuance and opportunity as may reasonably be required to enable the objecting party to meet the amendment.
In this instance the deputy director did not rule on the motion for leave to amend, but denied the motion for dismissal stating that, although "I am satisfied the motion is in order," respondent had the burden of proof of the defense.
The deputy director thereupon called upon respondent's attorney to present his witnesses. Respondent was not present at the hearing, and his attorney was instructed to try to get him there. At this stage petitioner's attorney intervened and expressed a preference for a continuance to another day because of another engagement. Respondent's attorney concurred and the deputy director accordingly continued the hearing to a date over a month later. The deputy director suggested to respondent's attorney that he "renew your amendment the next time and I will give some thought to it."
Respondent was the only witness on the continued date. That petitioner and his attorney knew respondent's testimony was being offered in support of the defense of casual employment is clear from the cross-examination of the respondent. The questions of the attorney for the petitioner were obviously directed toward obtaining admissions to refute the contention that petitioner's employment was casual. When respondent was excused from the witness stand the testimony was closed without any request by petitioner's attorney for leave to present additional testimony in rebuttal or otherwise. Thereupon respondent's attorney moved again for a dismissal of the claim petition on the ground that petitioner was a casual employee, but he did not renew the motion for leave to amend the answer. Both attorneys summed up. The deputy director then announced his oral finding that the defense of casual employment was sustained and that the petition was dismissed.
Plainly, petitioner cannot be heard to complain that the defense of casual employment was improperly considered in the lower tribunals. In the circumstances presented the mere absence of a formal amendment to the answer does not support his contention. He had ample notice of respondent's reliance upon the defense and that the continuance for over a month was to afford respondent the opportunity to adduce testimony in support of it. Petitioner too might have utilized that period to prepare to meet the defense and, on the adjourned day, to present testimony to refute it. Thus, no
prejudice to petitioner is shown requiring the ...