On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Brennan. For reversal -- Justices Heher, Burling and Jacobs. The opinion of the court was delivered by Wachenfeld, J.
We granted certification to review the reversal by the Appellate Division of a determination in favor of the petitioner in the Workmen's Compensation Bureau. The question is whether or not the decedent, petitioner's husband, was an employee of the respondent at the time of his accidental death.
Kelleher Motor Freight Lines, Inc., is a trucking concern engaged in interstate commerce. Edward Wilson, the petitioner's husband, was an independent trucker who operated
his own tractor-trailer unit and responded to Kelleher's call to a truck stop for some one to haul freight from the respondent's depot in Newark to its depot in Chicago. While en route, Wilson was killed in Indiana on August 23, 1950.
The Bureau granted compensation, holding him to have been an employee, while the Appellate Division reversed, classifying him as an independent contractor.
In accordance with the custom of the trade, the respondent had "called up" decedent at a lot where free-lance truckers were in the habit of congregating to receive such calls. Respondent's purpose was to "lease" decedent's unit for a single trip from its terminal in Newark to its terminal in Chicago. The decedent signed an agreement covering the leasing of his equipment which provided, amongst other things: "The term of lease shall be the duration of one single outbound trip * * *." A fee was to be paid to the lessor "for the use of the above-described equipment on the single trip" on the basis of equipment rented and allowance for turnpike toll.
The lessor was obliged to pay all fines incurred for overload, overweight, overlength, absence of permits or plates, and traffic violations. No moneys were withheld by the respondent for income tax, social security or unemployment compensation.
The decedent drove under the I.C.C. rights of the respondent, and the record reveals he had driven on similar trips for the company on at least three previous occasions.
Petitioner relies principally on paragraph 6 of the agreement, which provides: "* * * while the foregoing equipment is under the direction and control of Kelleher Motor Freight Lines, Inc., that it shall be operated only by the lessor or his representative while in the employ of the Kelleher Motor Freight Lines, Inc."
The contract apparently was an attempt to conform with the I.C.C. regulations, but other than this one factor there seems to be no evidence of control over the conduct of the decedent during the trip ...