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Breeze v. Herbert J. Elkins Inc.

Decided: July 9, 1958.

WILLIAM P. BREEZE, JR., BY HIS GUARDIAN AD LITEM PHILIP C. DANIELS, JR., PETITIONER-RESPONDENT,
v.
HERBERT J. ELKINS, INC. AND VAN WYK CONSTRUCTION COMPANY, INC., JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, RESPONDENTS-APPELLANTS



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

Price

[51 NJSuper Page 298] By this appeal Herbert J. Elkins, Inc. (hereinafter designated Elkins) and Van Wyk Construction Company, Inc. (hereinafter designated Van Wyk) seek the reversal of a joint judgment against them in the County Court December 3, 1957 in favor of petitioner William P. Breeze, Jr. by his guardian ad litem Philip C. Daniels, Jr. Said judgment was entered on appeal from a similar judgment entered July 25, 1957 in the Division of Workmen's Compensation in the sum of $14,580 plus incidental allowances representing a period of 486 weeks at $30 a week. The judgment awarded compensation as the

result of the instantaneous accidental death of William P. Breeze, father of William P. Breeze, Jr., on March 28, 1955.

At the time of his death decedent was performing work under a construction contract for the erection of a truss span sub-structure "for the Gloucester approaches from Gloucester Anchorage to Newton Creek of a bridge over the Delaware River connecting Packer Avenue in Philadelphia, Pa. and Gloucester City, New Jersey."

William P. Breeze, Jr., by his guardian ad litem , filed an amended dependency claim petition with the Division of Workmen's Compensation pursuant to N.J.S.A. 34:15-7 et seq. against the corporate defendants jointly, severally and in the alternative.

The appellants shall hereafter be referred to as joint adventurers.

The notice of appeal was as follows:

"Notice is hereby given that Herbert J. Elkins, Inc. and Van Wyk Construction Company, jointly, appeals to the Superior Court of New Jersey, Appellate Division, from that portion of a determination and Judgment entered by the Camden County Court, Law Division on December 3, 1957 in the above matter affirming the Judgment of the Deputy Director of Workmen's Compensation Division holding that (a) the petitioner's decedent was in the employ of Herbert J. Elkins, Inc. and Van Wyk Construction Company jointly; and (b) from that portion of a certain order entered January 2, 1958 which assessed counsel fees in favor of the petitioner and in favor of the defendant, Herbert J. Elkins, Inc., individually, against the respondent-appellant, Herbert J. Elkins, Inc. and Van Wyk Construction jointly.

/s/ WILLIAM G. FREEMAN,

Attorney for and of Counsel with Respondent-Appellant

Herbert J. Elkins, Inc. and Van Wyk Construction Company Jointly."

The basic question presented by this appeal is whether the evidence justified a joint recovery against the two named corporations allegedly engaged in a joint adventure. Specifically, the issue is whether the court erred in holding that decedent's employers at the time of the fatal accident were the joint adventurers aforesaid and not Elkins solely.

There is no dispute that the death of decedent arose out of and in the course of his employment, nor that William P. Breeze, Jr. is his only dependent. As stated, the single question is whether at the time of the fatal accident decedent was employed solely by Elkins or was employed by Elkins and Van Wyk jointly as corporations engaged in a joint adventure.

The contract for the work in question was of such scope that it could not be performed adequately and expeditiously by a single contractor. The contract between Elkins and Van Wyk jointly and Delaware River Port Authority was executed October 27, 1954. In it the Authority was designated "party of the first part," and Elkins and Van Wyk were therein designated as the contractor, "party of the Second part."

The contract inter alia provided as follows:

"ARTICLE IV -- Laws and Regulations: The Contractor shall take out Workmen's Compensation Insurance insofar as the Work covered by this Contract is concerned and comply with the Compensation Acts of Pennsylvania and New Jersey and all other Municipal, State, or Federal legislation or regulations as they apply.

ARTICLE XX -- Insurance: The Contractor shall maintain during the life of his Contract adequate insurance as follows:

(a) Compensation Insurance: Adequate Compensation Insurance for all the Contractor's employees who will be engaged in work at the site of the Project. If any part of the Contractor's Contract is sublet, the Contractor will require his sub-contractor to maintain such insurance of all of the sub-contractors' employees who will be so engaged.

ARTICLE XXXI -- Responsibility of Contractor: The Contractor shall be deemed and considered an independent contractor in respect to the work covered by this Contract and shall assume all responsibility and expense for the Work, for risks and casualties of every description arising out of the nature of the Work, the action of the elements, or unforeseen or unusual difficulties. * * *"

Subsequent to the entry into the aforesaid contract with the Authority, Elkins and Van Wyk executed a written contract dated January 10, 1955 by which they agreed to a division of the work which they had jointly contracted to

perform as aforesaid. Their contract with the Authority on October 27, 1954 was by reference incorporated in and made part of the contract of January 10, 1955. In the latter contract each agreed to assume full responsibility for furnishing materials and performing the work referable to designated portions of the total work encompassed by the main contract.

The contract between Elkins and Van Wyk provided inter alia as follows:

"1. ELKINS will provide all the materials and will perform all the work required under Item 1 of said contract and will receive from the sum allotted therefor 70% thereof and VAN WYK will receive the other 30% of the said sum; that is, $14,000 to ELKINS and $6,000 to VAN WYK. As payments are received under said contract for the materials and work performed by ELKINS under Item 1, 70% of each payment will be distributed to ELKINS and 30% of each payment will be distributed to VAN WYK within forty-eight hours from the receipt of such payments by the parties hereto.

2. ELKINS will provide all the materials and perform all the work required under Items 2, 3, 4, 5, 9, 10, 11 and 13 of the said contract and shall receive therefor the unit prices and lump sums designated for the same in the said items.

3. VAN WYK will provide all the materials and perform all the work required under Items 6, 7, 8 and 12 of the said contract and shall receive therefor the unit prices and lump sum in the said items.

4. Each of the parties hereto will supply all moneys, equipment, labor, materials, supervision and all other items or services required to perform the work and comply with all obligations allotted to it under this agreement; to wit, ELKINS will furnish the capital, equipment, labor, materials and supervision required to initiate, prosecute and complete Items 2, 3, 4, 5, 9, 10, 11, 13 and the part of Item 1 allotted to it of the said contract; and VAN WYK will furnish the capital, equipment, labor, materials and supervision required to initiate, prosecute and complete Items 6, 7 and 8 and 12, and the part of Item 1 allotted to it of the said contract."

The contract between Elkins and Van Wyk further provided for the prompt payment of sub-contractors and materialmen having claims arising out of the performance of the respective portions of the work. It contained a provision that each corporation would pay its employees the salaries and wages due them in connection with the prosecution of the work required under the part of the contract allotted to each. It contained a clause as follows:

"If at anytime either party shall fail to make payment as herein specified, the other shall have the right and authority to withhold from any sums or payments which may be due or received, but not paid, for the account of such defaulting party, sufficient moneys to make payment for such proper and lawful debts, salaries or wages."

Each party had the right to require the other to exhibit receipts for any claims or indebtedness arising out of or connected with the performance of the work allotted to each, with provisions for the protection of one party in the event of default by the other in the discharge of such items.

The contract further provided in part as follows:

"6. The parties hereto shall secure all bonds and insurance required for the performance of all items of the said contract and as required by the same in their joint names and each party will pay for such portion of the total premiums due as the portion of the contract to be performed by each shall bear to the entire contract. * * *

7. Each party will set all lines, grades and provide all layouts and other required services for the items allotted to it and shall provide a qualified superintendent for the work assigned to it until said work shall be satisfactorily completed and accepted by the said Port Authorities. The superintendent of each party shall not have the authority to incur any debt or obligation on behalf of the other and shall exert his best endeavors at all times during the performance of the items or part thereof assigned to each to expedite the performance of said work and to promote harmony, coordination and cooperation for the mutual interest for both parties in the performance of the work itself and in the creation and maintenance of good public relations.

8. Each party shall furnish its own watchmen as it shall determine necessary and shall provide proper safeguards for the protection of its own employees and other persons lawfully in and about premises and each shall bear the loss of its own materials or equipment which may be stolen, damaged, destroyed or missing unless the same shall be due to the neglect or fault of the other party.

9. Neither party shall make or agree to any change in the plans or specifications of any work to be done under the terms of the said contract except insofar as that work which shall be totally performed by it and as to any other work, any change, omission, or addition thereof or thereto shall require the written approval of the other party. If any party shall incur any expense or obligation for the ...


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