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O''Brien v. Washington National Insurance Co.

Decided: January 23, 1952.

JOHN FRANCIS O'BRIEN, PETITIONER-APPELLEE,
v.
WASHINGTON NATIONAL INSURANCE COMPANY, RESPONDENT-APPELLANT



Drewen, J.c.c.

Drewen

[17 NJSuper Page 550] Upon completion of petitioner's case in the Bureau, respondent moved to dismiss on the ground that at the time of the claimed accident petitioner's status was not that of an employee within the meaning of R.S. 34:15-36, but that of an independent contractor. The motion was denied and the jurisdictional question is here on appeal.

As shown by the record, the relation between the parties is expressed by the following facts and circumstances: Petitioner rendered two kinds of service to the company. One was the selling of insurance throughout the State of New Jersey, in connection with which petitioner attended meetings arranged by the company whereat instructions were given on different aspects of that endeavor. Petitioner's compensation for this part of his service was variable and calculated upon the basis of total premiums derived from the new business concluded by him, subject to reduction or refund based upon so much of the new business as, under stipulated circumstances, terminated in lapse. The other kind of service rendered was the collection of premiums from policyholders of the company included in an area called a "debit," comprising the Greenville, Lafayette and Marion sections of Jersey City. For this, petitioner's compensation was a fixed percentage of premiums collected.

He reported to the company office on Tuesday, Thursday, Friday and sometimes also on Saturday, of each week. He and others received instructions from one of the company personnel referred to as a "superior" and who from time to time, as petitioner states, "went out with us on an inspection of our collection books." On Tuesdays he turned in his premium and other receipts for the preceding weekend and also attended a sales meeting. On Thursdays he turned in his "full account" from his collection books. On Fridays he came to the office to be paid. I quote from petitioner's testimony: "Q. Did they tell you where to go and who to go to to collect the premiums? A. Yes, when I was broken in on the job, in my training period, they showed me everything of which I was supposed to do and who I was supposed to call on." Petitioner was free to work as many or as few days in a week as he wished, but he adds, "they want you out there every day." Collections might be made by day or night, but the company "preferred to have you out on the street eight o'clock in the morning." With respect to the "superior" and the extent of his control, petitioner states

"when he advised you, you took it as an order, being he was your superior."

It was during the collection of premiums on the debit, it should be remembered, that the alleged accident occurred.

Questions similar to that now presented have been repeatedly before the Bureau and the appellate courts. The decisions, however, are sui generis and what help they give derives more from enunciated principles than from comparability of facts. In Wadge v. Crestwood Acres, Inc. , 20 N.J. Misc. 188, affirmed 128 N.J.L. 551 (Sup. Ct. 1942), affirmed 129 N.J.L. 400 (E. & A. 1943), the familiar test is reiterated that where the employer retains the right to dictate the manner in which the task should be performed, the relation of master and servant exists. In Lewis v. National Cash Register Co. , 84 N.J.L. 598 (Sup. Ct. 1913), while the decision is not one in workmen's compensation, the court, in finding one Kaler not to be an independent contractor, was not influenced by the circumstance that for his services as salesman he was paid by commission. In Errickson v. Schwiers Co. , 108 N.J.L. 481 (E. & A. 1932), at page 483, the court said:

"An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done. * * * It will be seen, therefore, that the ultimate question in this case is, who had control of the operation."

The foregoing is cited with approval by the Supreme Court in Cappadonna v. Passaic Motors, Inc. , 136 N.J.L. 299 (Sup. Ct. 1947), affirmed 137 N.J.L. 661 (E. & A. 1948).

Two other decisions with elements pertinent to the question are Crawford v. Newark Star Pub. Co. , 15 N.J. Misc. 77 (Sup. Ct. 1936) and El v. Newark Star Ledger , 21 N.J. Misc. 57

(Com. Pl. 1943), affirmed 131 N.J.L. 373 (Sup. Ct. 1944). The Crawford case, though the specific defense of independent contractor was not there raised, implies clear support of petitioner on this issue. In the other case, El v. Newark Star Ledger , the petitioner, a 12-year-old school boy, daily delivered the company's newspaper to a fixed number of subscribers. His compensation was the difference between the wholesale and retail price of the papers. Petitioner could and did solicit new customers outside of his territory for which he received added ...


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