Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The petitioner, Edward E. Condon, a painter, sought a workmen's compensation award for injuries resulting from a fall from the roof of respondent's barn. This appeal is from concurrent findings by the Division of Workmen's Compensation and the County Court granting the award. The sole question for determination is whether the petitioner was an "employee" or an "independent contractor" within the meaning of the Workmen's Compensation Act.
The essential facts are not in dispute. The petitioner was in business for himself as a painting contractor and so represented himself to the public. In 1952 he had done some painting for the respondent at a flat contract price, at which time his status was admittedly that of independent contractor. Early in 1953 the parties entered into an agreement
whereby the petitioner was to nail and paint the roof of respondent's barn; he was to supply the material, to be reimbursed therefor and to be paid $2 per hour for his labor. No definite starting or finishing date was agreed upon, nor was there any agreement as to how many hours each day the petitioner should work.
The petitioner began the work on May 4, 1953. While working, the respondent approached him and asked whether he was covered by insurance. The petitioner said that his coverage was limited to his own liability and would not include respondent's liability for him. The respondent replied that he would arrange to have the petitioner covered under his Workmen's Compensation policy. Thereafter he did contact his insurance agent who advised him that the petitioner would be covered as requested. On May 13, 1953 the petitioner fell from the barn roof sustaining the injuries for which he seeks compensation. He was never carried on the respondent's payroll; payments were made to him upon receipt of bills without any income tax or social security deductions.
The petitioner urges this court to affirm the judgments below by applying the "two court" rule as stated in Hagerman v. Lewis Lumber Co. , 24 N.J. Super. 120 (App. Div. 1952), affirmed 13 N.J. 315 (1953):
"Our former Court of Errors and Appeals held in workmen's compensation cases that where two independent and distinct tribunals, such as the Workmen's Compensation Bureau and the Court of Common Pleas, had reached the same conclusion on an issue of fact that the conclusion so reached should not be lightly disturbed by the appellate court."
The rationale of this rule is that where there is a factual dispute in the tribunals below, the findings of fact made there should be given determinative weight because they are in a position to observe the witnesses and judge their credibility. Here, there is no factual dispute, so that the problem of weighing conflicting evidence and judging credibility of witnesses is not present. Accordingly, in this
instance, the appellate court is in equally as good a position as the trial courts to determine the ultimate question from the undisputed facts and is not bound by the "two court" rule. Moreover, despite conflicting evidence and concurrent findings below, this court has the power to make new findings of fact where the necessities of justice so require. R.R. 4:88-13. Hagerman v. Lewis Lumber Co., supra.
The petitioner stresses the conversation between the parties respecting his being covered under the respondent's workmen's compensation policy. On the one hand, he contends that this fact is determinative of what the parties considered their relationship to be, i.e. , employer-employee. On the other hand, he contends the respondent is now estopped from denying the existence of such a relationship. We do not agree, deeming it significant that the parties entered into their original agreement and the petitioner commenced work without any reference having been made to the subject of workmen's compensation insurance.
Dean Larson has observed that cases involving "services," such as repair or maintenance, raise the closest and most controversial questions in the field of compensation law. 1 Larson, Workmen's Compensation , § 45.31. However, the problems raised thereby must be ...