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Graham v. Green

Decided: February 17, 1959.

WALTER GRAHAM, AN INFANT, BY HIS GUARDIAN AD LITEM, ELVIRA GRAHAM, PETITIONER-RESPONDENT,
v.
MAX GREEN, INDIVIDUALLY, AND TRADING AS SERVICE BEVERAGE CO., RESPONDENT-APPELLANT



Schettino, Hall and Gaulkin. The opinion of the court was delivered by Schettino, J.A.D.

Schettino

Appeal is from a County Court judgment in favor of the petitioner affirming an award of compensation of a Deputy Director of the Division of Workmen's Compensation.

It is our function to weigh and consider the evidence anew, make our own findings but accord deference to the Deputy Director's opportunity to judge the credibility of the witnesses. Yeomans v. Jersey City , 27 N.J. 496, 511 (1958); Russo v. United States Trucking Corp. , 26 N.J. 430, 435 (1958); Ricciardi v. Marcalus Mfg. Co. , 26 N.J. 445, 446-447 (1958). We consider this appeal with these principles in mind.

The facts, insofar as are pertinent herein, are as follows. Appellant is a dealer in soda beverages. On May 23, 1956 Willie Benjamin, a truck driver employed by Society Club Beverage Co., called at appellant's plant to pick up some empty bottles. While doing so it was necessary to remove some cases of empty bottles stacked against a partition. The partition, a permanent one, unexpectedly collapsed causing many cases of bottles to crash to the ground. The testimony indicated that anywhere from a few hundred to a thousand bottles were broken. On Friday, May 25, 1956, Saul Kopf, an agent of the appellant, asked Benjamin if he could come to appellant's plant on his day off, on the following day, to clean up the broken glass and to bring a helper with him. Benjamin accepted and returned on Saturday with the petitioner,

a friend of his, and did the work. Both were paid by appellant for their labor.

While cleaning up the glass petitioner cut his finger but continued to work, wrapping his handkerchief around the cut. He reported to work with his regular employer, the Robert Treat Beverage Company, on the following Monday and Tuesday, as a helper on a soda delivery truck. Late Monday or early Tuesday the finger began to pain him intensely and he reported to a clinic. The wound had become severely infected. Petitioner discontinued his work with Robert Treat.

Petitioner subsequently filed his petition for workmen's compensation in which he sought double recovery pursuant to the provisions of N.J.S.A. 34:15-10 as petitioner was an infant under eighteen years of age at the time of the accident. At the hearing appellant denied that petitioner sustained an accident arising out of and in the course of employment with appellant, denied that petitioner was an employee of appellant, and alleged that petitioner was a casual employee within the provisions of N.J.S.A. 34:15-36.

At the hearing testimony was adduced on behalf of appellant that, previous to the incident of May 23, the most bottles that had ever been broken at any particular time in respondent's plant were 36. It was conceded that on all previous occasions the normal breakage of bottles was cleaned up at the time of breakage by a regular employee. There was further uncontradicted testimony on behalf of appellant that the collapse of a partition with a subsequent breaking of many bottles had never occurred previous to this instance during the approximately fifteen years that appellant had been in the beverage business. Moreover, appellant never before hired any one to clean up broken bottles.

It is also undisputed that petitioner worked at appellant's plant on this one day only, never having worked there before nor since. There is clear testimony, and we so find, that petitioner and Benjamin were employed for the sole purpose of cleaning up the glass and debris that resulted from the collapse of the partition.

The Deputy Director resolved all questions of credibility in favor of petitioner and found that an employer-employee relationship was established and that petitioner was not a "casual employee" within the meaning of N.J.S.A. 34:15-36 stating:

"Obviously in the instant case the petitioner was engaged in the employer's business. The breakage of bottles and the removal thereof were a normal incident in the respondent's business, and the fact that several hundred bottles were broken on a ...


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