On appeal from Division of Workmen's Compensation.
This is an appeal from a determination of facts, award, and rule for judgment entered in the New Jersey Department of Labor and Industry, Workmen's Compensation Division, wherein the petitioner had filed two petitions, one against Max Silverman t/a Maxwell Wine Company, and one against the Kessler Realty Company.
This cause, to some extent, presents a question which does not seem to have been squarely determined by any previous decision in New Jersey. That question must be resolved, not in the light of some abstract supposition, but on the facts of this case whereof this court is duty bound to make its independent findings. Donofrio v. Haag Bros., Inc. , 10 N.J. Super. 258 (App. Div. 1950). Accordingly, this court will initially state its findings of fact.
Cser sustained his compensable injury in an accident which befell him on March 18, 1955 while doing some maintenance work in a building owned by Kessler Realty Co. (hereinafter to be referred to as Kessler or as the corporate respondent) in Perth Amboy, his injuries resulting in 5% of total and permanent disability; neither of the respondents questions the facts thus far stated and this court finds those facts amply sustained by the evidence. However, it was the petitioner's contention both before the Division of Workmen's Compensation and before this court that, at the time of the occurrence of the accident, he was in the joint employment and service of both respondents at a wage of $65 per week. The Division of Workmen's Compensation so found, and this court agrees with that finding -- specifically, that Cser was in the employ of both defendants at the time
of the occurrence of the accident, although the injury was received in the premises owned by only one of the employers. The two claim petitions were consolidated for trial before the Division of Workmen's Compensation and one award was there made on the basis of 5% of total and permanent disability, and certain medical and other expenses assessed against both respondents. The corporate respondent, Kessler, does not question the propriety of that award in any respect, but has suggested to this court that, if this court should agree with Silverman's argument here made to the effect that Silverman should be wholly exonerated from any liability to the workman, then Kessler's liability to the workman should be reduced. This aspect of the case will be hereinafter more fully discussed.
As already indicated, it is this court's factual determination that, at the time of the occurrence of the accident Cser was in the joint employment of both respondents, at a salary of $65 per week. From the evidence it appears that this wage was paid to Cser by both Silverman and Kessler, that is, by both the individual and the corporation, with the former contributing $40 per week and the latter $25 per week. The person actually directing and controlling Cser, in behalf of Kessler Realty, was Silverman; the person actually directing and controlling Cser, in behalf of Silverman, was Silverman himself. It was Silverman alone who directed Cser when to go and what to do in Perth Amboy where the corporation's building required some maintenance work; it was Silverman alone who directed Cser when to go and what to do in New Brunswick where Silverman's bottling establishment was located. Plainly, the "corporation" was a Silverman family convenience. The respective contributions of $40 and $25 per week bore absolutely no relationship to the service rendered for one or for the other during each recurrent week of employment. The wage contributions to Cser were nothing more than matters of bookkeeping or tax advantage to the two persons who paid the wages. The inescapable fact is that Cser was on duty call to both the corporation and to the individual at all times
during the week, as Silverman might from time to time direct. This court cannot ignore the fact, as Silverman from his argument (but not from his evidence) would have this court ignore, that there is absolutely no evidence in this case to the effect that (1) Cser made a contract with Silverman to work for him for $40 per week, and (2) Cser made a contract with Kessler to work for it for $25 per week. From the evidence this court finds that Cser's contract of employment with both respondents was to work for them for $65 per week at such times and places and for such specific tasks as Silverman might from time to time direct.
The wholly artificial position advanced by Kessler is contrary to the social purposes which inspired, and which are the very lifeblood, of our Workmen's Compensation Act. The word "employer" is not defined by N.J.S.A. 34:15-36. So, in a comparatively recent case two partners who had engaged the wife of one of them as an employee, sought to avoid the consequences of the statute on the plea that husband and wife could not contract with each other, with the consequence that the partners would not be liable for injuries sustained by the employee wife during the course of her employment. That specious plea was demolished. Felice v. Felice , 34 N.J. Super. 388 (App. Div. 1955). This court believes that a liberal construction of the statute here under consideration, with reference to the meaning of the word "employer," is the only one that will accord with the principles of construction applicable to this statute. Biglioli v. Durotest Corp. , 44 N.J. Super. 93 (App. Div. 1957).
The principle of law last referred to is further emphasized by the facts of this case. Under R.S. 34:15-12, the employee sustaining an injury such as that involved in the case at bar is limited to two-thirds of his wages. If Silverman's argument here made were accepted by the court, then this injured workman would receive nothing from Silverman because of the wholly fortuitous circumstance that the accident did not happen ...