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Knight v. Cohen

Decided: December 5, 1958.

JAMES A. KNIGHT, PETITIONER-RESPONDENT,
v.
HERBERT P. COHEN (INDUSTRIAL LUMBER CO., A PARTNERSHIP), RESPONDENT-APPELLANT



Giuliano, J.c.c.

Giuliano

The petitioner, James A. Knight, was employed by the respondent, Industrial Lumber Co. (hereinafter referred to as "Industrial"), as a truck driver and general yard handyman. His hours of employment there were 8:00 A.M. to 4:30 P.M., five days a week. The petitioner had been employed in this capacity by Industrial for approximately eight years.

The petitioner has, for the last three or four years, also worked for respondent Herbert P. Cohen, one of the two partners constituting Industrial, mowing the lawn and performing similar tasks about Mr. Cohen's residence. This latter employment obviously resulted from a combination of Mr. Cohen's desire to have someone aid with his house

chores and the petitioner's desire to supplement his regular income. This supplemental compensation was alleged by the petitioner to be "$25.00 for the grass and I'll pay you for extra things that you do around here." The frequency of the grass cutting depended upon the growth of the lawn.

On Saturday, April 20, 1957, the petitioner went to the home of respondent Cohen in response to a telephone call from Mrs. Cohen, the wife of said respondent. Shortly after he commenced mowing the lawn, and while operating a rotary type power mower on a terrace, the petitioner slipped and fell, one of his feet landing under the whirling blades of the mower, causing serious injury to several toes.

The matter was heard by the Deputy Director on April 23, 1957, and May 4, 1958. After hearing all the testimony, the Deputy Director found that the petitioner had suffered a compensable accident arising out of and in the course of his joint employment with both respondents. He found a judgment of $4,106.69 in favor of the petitioner, and each respondent was assessed one-half of the said total amount.

The respondent, Industrial, brings the instant appeal, denying any liability either jointly or individually. Injuries being admitted by both respondents, the main question for determination here is whether there was a joint employment. The respondent, Herbert P. Cohen, did not appeal, but relies upon the petitioner's contention that the judgment found below should be the judgment of this court.

The petitioner urges the finding of joint employment by virtue of the principle expressed in the case of Cser v. Silverman , 46 N.J. Super. 599 (Cty. Ct. 1957), affirmed per curiam 50 N.J. Super. 125 (App. Div. 1958). In that case the petitioner prosecuted workmen's compensation claims against both Max Silverman, trading as Maxwell Wine Company, and the Kessler Realty Company. The two claim petitions were consolidated for trial, which trial culminated in a finding of joint liability against the aforementioned respondents. Were the facts there analogous to the facts sub judice , that case would be controlling. However, this

court finds that there is at least one major distinguishing factor which, while present in Cser , is absent here.

This distinction is that of separate and distinct contracts. The testimony adduced at the hearing of the instant matter showed that: (a) there was a four-or five-year interval between commencing the Industrial employment and the Cohen lawn-mowing job; (b) there were separate types of labor performed; (c) there were different methods of compensation -- petitioner received $1.66 per hour for his labors with Industrial, and $25 per month for his lawn-mowing tasks; (d) these separate compensations were paid at different times; (e) the two employments were never performed at the same times of day. The distinguishing effect of such factors is obvious. In Cser the court stated:

"* * * 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 * * * 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 ...


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