On appeal from the Superior Court, Appellate Division.
For reversal -- Justices Oliphant, Burling, Jacobs and Brennan. For affirmance -- Chief Justice Vanderbilt, and Justices Heher and Wachenfeld. The opinion of the court was delivered by Oliphant, J.
[17 NJ Page 292] This is a workmen's compensation case in which the sole issue is whether at the time of his accident
the plaintiff was an employee of the defendant or an independent contractor.
Plaintiff recovered an award in the Workmen's Compensation Division, which, on appeal was affirmed by a judgment entered in the Monmouth County Court. On further appeal the Appellate Division of the Superior Court reversed the judgment entered below and on the plaintiff's petition we granted certification. 16 N.J. 191 (1954).
Plaintiff, for a number of years, had operated a landscaping and excavating business under the trade name of "Shore Landscaping Service" and had business cards in that name. In that business he contracted for work on either the lump sum or hourly basis. His equipment consisted of a pick-up truck, a dump truck, a caterpillar-tractor type bucket-loader which evidently is a bulldozer with loading equipment, and the "hand tools necessary to the trade." He performed all his work himself and operated his own machines.
Some time prior to May 21, 1952 plaintiff noticed that a building in Freehold was being demolished and that there was a lot of refuse and debris around the premises. He left his business card there with one of the workmen and indicated to him he would be available when it came time to clear the debris. A few days prior to the aforementioned date the defendant telephoned plaintiff and asked him about his machinery and charges. Plaintiff replied that he "charged $8.00 an hour * * * the price prevailing for that size loading units" including the operator, in this case the plaintiff. He began work on May 21, 1952. By mutual agreement he was to be allowed to attend to other business one or two days a week.
Defendant was employing two men on the job, one named Lopez, who was in charge of the work, the other a relative of defendant, but Bennett, the defendant, was seldom there. Lopez told plaintiff "what to do more or less," namely what was salvage and what was to be loaded on the truck and instructed him to stop loading when he, Lopez, saw the truck was sufficiently filled. Subsequently Lopez was transferred to other work and his place was taken by one Fitzpatrick.
In demolishing the walls of the old building plaintiff and Lopez or Fitzpatrick jointly used a timber to push the walls down with plaintiff's loader and either Lopez or Fitzpatrick would signal to the plaintiff when the loader was to be moved forward. The method of operating the machine itself was left to the plaintiff.
On June 10, 1952 plaintiff was filling his bucket with debris at a point about 25 feet from a section of wall which was still standing when it buckled and fell, some of it striking the plaintiff and injuring him.
In the actual doing of the work at the job full control in the manner of doing the work was retained by the defendant. Plaintiff would be shown a pile of debris out of which salvagable material had been culled by the defendant, and he would be directed to lift it into trucks supplied by the defendant. Plaintiff had no control over what debris was to be loaded first, where his operations should take place, or when to consider a truck loaded. In knocking down walls his efforts were directed by defendant's employees. The defendant was always in a position to tell plaintiff what he wanted done and could discharge him at any time.
In addition, defendant made deductions from plaintiff's bills, which were rendered on "Shore Landscaping Service" bill heads, for social security, unemployment compensation contributions and withholding tax. This was all done by defendant's mother, his bookkeeper, at his direction. The defendant reported plaintiff's injuries to his insurance carrier, in which he referred to him as "an employee." He testified he did all this after the accident ...