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De Monaco v. Renton

Decided: October 15, 1954.

ROBERT DE MONACO, AN INFANT, BY HIS GUARDIAN AD LITEM, MARY GIACOBE, PETITIONER-APPELLANT,
v.
LOUIS RENTON, RESPONDENT-RESPONDENT



The opinion of the court was delivered by Artaserse, J.s.c. (assigned).

Artaserse

This is a workmen's compensation case. The infant petitioner, a newsboy selling newspapers to the general public, seeks workmen's compensation from the respondent, a newspaper distributor. The Deputy Director of the Division of Workmen's Compensation determined that the relationship of master and servant existed between the infant petitioner and the respondent, but dismissed the petition because of the provisions of N.J.S.A. 34:15-36 which excludes newsboys selling newspapers to the general public as employees within the provisions of the Workmen's Compensation Act. The infant petitioner appeals from the judgment of dismissal. The following facts are gleaned from the record:

The infant petitioner was born on June 1, 1940, and on November 14, 1952, while engaged in selling newspapers to the general public, was struck and run down by an automobile, sustaining injuries for which he seeks workmen's compensation from the respondent. It appears that the infant petitioner was engaged as a newsboy selling papers to the general public from September 1951 until June 1952, when he ceased doing so. He obtained his papers from the respondent. On November 12, 1952 he was asked by the respondent if he wanted to work and in response thereto

the infant petitioner resumed selling newspapers to the general public. He worked the evenings of November 12, 13 and 14, 1952, until he met with his accident at about 11:45 P.M. on the last date. Although there was no requirement as to when to start or when to stop, the infant petitioner usually worked from eight o'clock in the evening until one or two o'clock in the morning. When the respondent did not personally give the infant petitioner the newspapers some one on his behalf would do so. There was no requirement for the infant petitioner to sell any definite number of newspapers. He received one cent for each paper sold. At the end of the evening the infant petitioner turned over to the respondent all of his receipts from the sale of the papers. The cost of all papers given to him and for which he was charged was deducted from the receipts and the balance was returned to the infant petitioner. All shortages in receipts were made up by the infant petitioner. For the three days that the infant petitioner worked prior to his accident he received $3 or $3.50 all told.

On the date of the accident, November 14, 1952, the infant petitioner arrived at the Journal Square, Jersey City, newsstand of the respondent at about eight o'clock in the evening and received a quantity of Daily News and Mirrors. He was told by the respondent or another in his behalf to go to the State Theatre on the Hudson County Boulevard, Jersey City, to sell said papers to the general public and if he had any unsold papers when the last performance ended, to go to another spot on the opposite side of the street to sell them to the general public. The infant petitioner remained at the State Theatre until the last performance ended and, having some unsold papers, he was on his way to the opposite side of the street to sell them when he was run down by an automobile.

The respondent is an inspector for the Daily News and has been so employed for 19 years. He has supervision of the circulation, distribution and promotion of said paper in northern New Jersey. In addition thereto he conducts and is engaged in operating a newsstand for himself at Journal

Square. It appears that the respondent had the newspapers picked up at the Jersey City exit of the Holland Tunnel and taken to his private place of business at Journal Square where they would be distributed to the various newsboys. At Journal Square the newspapers would be counted and distributed to the newsboys for sale to the general public at specific spots. The price of the papers to the public was fixed by the respondent and the infant petitioner was obliged to sell at that price. The respondent had the right to and did allot to the infant petitioner particular public spots where to sell the newspapers to the general public. The infant petitioner was obliged to stay at that particular spot or at the successive particular spot, as was the case here, to sell newspapers to the general public. He worked or not as he desired, and if he did not appear some one else would be put in his place. The infant petitioner was not engaged in selling newspapers to specified customers of the respondent nor was he delivering newspapers on a definite or specified route for the respondent but rather was selling newspapers to the general public. Apparently there were no deductions for social security, unemployment compensation or withholding taxes.

The factual questions to be settled are: (1) was the infant petitioner an independent contractor or an employee; (2) if an employee, was he an employee within the provisions of the Workmen's Compensation Act in view of the provisions of N.J.S.A. 34:15-36; (3) if the infant petitioner was an employee within the provisions of the Workmen's Compensation Act was he employed in violation of N.J.S.A. 34:2-21.15 and N.J.S.A. 34:15-10 which would entitle him to double compensation under the schedules provided in N.J.S.A. 34:15-12?

At the oral argument the infant petitioner contended that the determination of the Workmen's Compensation Division that the relationship of master and servant existed between the infant petitioner and respondent be not disturbed and that this court concern itself solely with the questions of whether the infant petitioner was an employee

within the provisions of the Workmen's Compensation Act and whether he is entitled to double compensation. The applicable rule is to the contrary. The hearing of the appeal before the County Court is a trial de novo , "provid[ing] a new mind for the consideration of the testimony adduced." Charlock v. M.W. Kellogg Co. , 4 N.J. Misc. 260 (Sup. Ct. 1926); New York Live Poultry Trucking Co. v. Schwartz , 5 N.J. Misc. 178 (Sup. Ct. 1927); Sweigard v. Richards , 118 N.J.L. 394 (Sup. Ct. 1937); Folsom v. Magna Manufacturing Co. , 14 N.J. Super. 363 (App. Div. 1951). The County Court should, of course, consider the findings of fact of the Division of Workmen's Compensation and give due, although not necessarily controlling, regard to the opportunity of the deputy director to evaluate the credibility of the witnesses. Donofrio v. Haag Brothers, Inc. , 10 N.J. Super. 258, 262 (App. Div. 1950); Gagliano v. Botany Worsted Mills , 13 N.J. Super. 1, 5 (App. Div. 1951). This rule is well settled and salutary. However, it does not bar an Appellate Court, in reviewing the record and reaching ...


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