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Galler v. Slurzberg

Decided: June 25, 1954.


Clapp, Smalley and Schettino. The opinion of the court was delivered by Clapp, S.j.a.d.


Appeal is taken from a final judgment and order granting plaintiff injunctive relief against picketing and other activities by the 27 individual defendants. Interlocutory injunctions had theretofore issued, and litigation thereon is reported in 22 N.J. Super. 477 (App. Div. 1952) and 27 N.J. Super. 139 (App. Div. 1953).

For an obvious reason the final injunctions cannot be sustained. There is nothing to indicate that, had relief been

withheld, the defendants would probably have done that which was enjoined. Meyer v. Somerville Water Co. , 82 N.J. Eq. 572, 577 (Ch. 1914). Cf. , too, N.J.S. 2 A:15-53(b). Moreover, no activities of the sort enjoined had been carried on except for two periods, one of them three-quarters of a year, and the other a year and a half, before the final injunctions issued. An injunction is turned toward future mischief; its office is not to punish for the past. Bayonne Textile Corp. v. American, etc., Silk Workers , 116 N.J. Eq. 146, 164 (E. & A. 1934).

There must be a reversal on this ground. However we have decided not to rest our decision solely upon it. Aside from the fact that we have not had the benefit of argument on the matter (though we pressed the point on the oral argument), we cannot but be aware of the tensions exhibited here that may bespeak things not shown by the record. Besides, the question which occasioned 207 pages of brief and a 1,172-page appendix, with which we have been favored, not to speak of a final hearing lasting 22 days, seems to be involved in important phases of this litigation still pending below.

This question to which we allude is whether -- as held by this court in connection with the interlocutory injunction, 22 N.J. Super. 477, supra -- the defendants are employees; or whether -- as found by the trial court on the final hearing below -- they are independent contractors. The question comes before us in this way: plaintiff argues that defendants are not employees, as that term is used in the Anti-Injunction Act, N.J.S. 2 A:15-51 to 2 A:15-58, and that therefore that statute is not a bar to the injunctions here. Outdoor Sports Corp. v. A.F. of L., Local 23132, 6 N.J. 217 (1951). Plaintiff suggests additional theories which might sustain the injunctive relief granted and asks for further argument thereon, should we find its present contention invalid. Defendants do not deal with these theories. In view of plaintiff's failure to establish any threats by defendants or other circumstances warranting injunctive relief -- the matter first

mentioned in this opinion -- we will not deal with these theories or with questions we have as to the activities enjoined, other than picketing, concerning which the briefs are silent.

We address ourselves then to the question which led the parties and the court below to make this big record -- were the defendants employees?

Plaintiff is a partnership selling a soft drink, 7 Up, in certain counties of this State under an exclusive franchise granted by a national concern. Defendants were salesmen, each handling a route or routes within plaintiff's territory. The relationship between plaintiff and defendant was defined to some extent in a contract made in 1950 between plaintiff and an American Federation of Labor union which then represented defendants.

Out of the mass of factual detail bearing upon the question, we shall -- endeavoring not to repeat what we said in 22 N.J. Super. 477, supra -- set out, first, the factors relied upon to establish that defendants are independent contractors:

1. Right to discharge. Plaintiff contends it did not have the employer's usual redress (Courtinard v. Gray Burial, etc., Co. , 98 N.J.L. 493, 495 (E. & A. 1923); Geary v. Simon Dairy Products Co. , 7 N.J. Super. 88, 93 (App. Div. 1950)) against an employee who rejects instructions -- namely, of discharging him. However, a very substantial part of the defendants' activities was regulated by the 1950 contract, and for default in its terms by a defendant, the plaintiff could, at will, as noted 22 N.J. Super. , at p. 488, supra , terminate the contract as to him. As to defendants' actions not so regulated, the contention has some force; but, limited as it is to them, it is by no means dispositive. We may ask further, without passing on it, is it our law that to constitute a relationship one of employment, it must be at will? In other words, cannot a person still be an employee, though he is under contract for a term during which he cannot be discharged? U.S. v. Wholesale Oil Co. , 154 F.2d 745, 749

(C.C.A. 10 1946); In re Pacific Nat. Life Assur. Co. , 70 Idaho 98, 212 P. 2 d 397 (Sup. Ct. 1949); Kehrer v. Industrial Com'n , 365 Ill. 378, 6 N.E. 2 d 635 (Sup. Ct. 1937); Balfour v. Dohrn Transfer Co. , 328 Ill. App. 163, 65 N.E. 2 d 624 (App. Ct. 1946); contra see Rozran v. Durkin , 381 Ill. 97, 45 ...

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