Schettino, Hall and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
Petitioner was denied compensation in the Division of Workmen's Compensation. The denial was affirmed by the County Court, and he appeals.
(Whenever emphasis appears in this opinion, it is ours.)
Respondent was in the "general home improvement" business. Its president, John Cocoziello, testified "we applied siding; we applied roofing; we did carpentry; we did mason work; built dormers, garages, recreation rooms; even built a house once in a while."
In the spring of 1955 petitioner and one Schaffer entered into an oral arrangement with respondent to apply siding upon buildings being "improved" by respondent, for $8 per "square" -- a "square" being 100 square feet. Petitioner and Schaffer did this steadily for about a year and a half until, in January 1956, petitioner fell from a scaffold while at work on such a building. It is for the injuries sustained in that fall that he seeks compensation.
In its answer to petitioner's claim petition, respondent denied petitioner was its employee, alleging that petitioner "was an independent contractor together with Durwood Schaffer and took this job with Schaffer as his partner." At the hearing the deputy suggested, and counsel agreed, that this issue of employment be tried first. That was done.
The taking of the testimony was completed in November 1956. Briefs were thereafter filed and, on April 22, 1957, the deputy delivered an oral opinion in which he found "that the relationship of master and servant did not exist." Pursuant thereto, on May 14, 1957, he entered an order dismissing the petition for the "reasons * * * more
fully expressed in my opinion rendered at the conclusion of this case which opinion is heretofore [sic] incorporated in this order * * *."
The opinion and the order are not adequate to discharge the deputy's "responsibility to make proper findings upon the essential matters to be determined under the claim petition." Folsom v. Magna Manufacturing Co. , 14 N.J. Super. 363, 369 (App. Div. 1951); Gagliano v. Botany Worsted Mills , 13 N.J. Super. 1 (App. Div. 1951); Patton v. American Oil Co. , 13 N.J. Misc. 825 (Sup. Ct. 1935) affirmed 116 N.J.L. 382 (E. & A. 1936). Cf., Testut v. Testut , 32 N.J. Super. 95 (App. Div. 1954).
We quote the oral opinion of the deputy in full:
"In this case, hearings were held on the question of whether or not the relationship of master and servant existed between the petitioner and the respondent in the instant case, and if it was so found to be, that medical testimony was to be offered.
On the issue of master and servant relationship, it was stipulated that the respondent received notice of an alleged accident which occurred on January 5, 1956. The respondent did pay temporary of 10 weeks at $30 a week, alleging that it was paid under a misapprehension of its liability.
At the outset it might be observed that the truth is hardly recognizable from either the petitioner's or the respondent's case, so that the matter resolves itself into the observations that have been made by me as the witnesses testified and evaluating their testimony for whatever weight it might have.
Briefs were submitted by each side, and these were duly considered as well as all of the exhibits and testimony in this case.
From a consideration of all the testimony, exhibits and stipulations, I am satisfied and find that the relationship of master and servant did not exist. It is my opinion and I find that this was a joint venture between Schaefer [sic] and the petitioner. This conclusion is supported in part by the payment to Schaefer and Congleton of a check which was divided among all of the parties concerned, after Schaefer deducted for his gas, and also the testimony of Congleton as to his truck, and his renting of premises.
While the petitioner relies on the case of Amend, because of the payment of temporary or acknowledgement of the carrier in a letter, nevertheless this case, cited in [ Amend v. Amend , 12 N.J. Super. 425], 79 A. 2 d 742 held that the filing of the Forms One, Two and Three constitute prima facie case for claimant in compensation ...