The parties to this workmen's compensation proceeding appear before this court pursuant to a remand from the Superior Court, Appellate Division. In order to better understand the issue to be resolved here, a review of antecedent proceedings is advisable.
On September 26, 1955 the petitioner's son, Donald Hannigan, was killed as a result of an automobile accident in the City of Newark. At that time the decedent was driving a taxicab owned by the respondent, David Goldfarb. The petitioner filed a dependency claim petition for compensation on July 23, 1956, to which answer was filed on October 19, 1956, and which was brought on for hearing before Deputy Director Maurice A. Kaltz on January 23, 25 and 28, and February 7, all in 1957.
The first three days of the above mentioned hearing were spent in adducing testimony primarily and almost exclusively concerned with whether or not a requisite situation of employment existed between Hannigan and Goldfarb. On January 28, 1957 Mr. Wald, counsel for the respondent, inferred that not only would a motion be made by him on the issue of employment, but also that "there were some aspects surrounding the occurrence of this accident which I [have] not completed investigating." At Mr. Wald's request, the case was continued. When the hearing was resumed
for the last time, on February 7, 1957, one John P. Brady was sworn on behalf of the respondent and was questioned as to toxicological studies he made of the organs of the decedent. The following colloquy ensued:
"The Deputy Director: What is the purpose of the witness here? Mr. Wald: I am going to establish, your Honor, that the death of this decedent was the approximate result of drunkenness.
The Deputy Director: Then you cannot do it. You have to plead it specially and you haven't. I sustain the objection."
At this time the respondent was unsuccessful in an attempt to amend the answer. On February 11, 1957, Deputy Director Kaltz rendered a previously reserved decision in favor of the petitioner.
Appeal of the deputy director's decision was prosecuted to this court. Thereupon, this court made an independent finding of fact that the decedent was not an employee of the respondent. The petitioner then appealed to the Appellate Division of the Superior Court and in a decision by Judge Edward Gaulkin, the judgment of this court was reversed. Judge Gaulkin said, in part:
"Though we have no New Jersey case on all fours with the one at bar, the holdings and the philosophy of the cases we do have dealing with the employer-employee relationship in general lead us to the conclusion that * * * the real question for solution here is, does Goldfarb 'engage merely in the leasing of taxicabs, or does he operate a line of taxicabs as a common carrier of passengers?' * * * (W)hen all factors are considered we think there can be little doubt Goldfarb is operating a line of taxicabs as a common carrier of passengers, and that while he has adopted this method of fixing the compensation of his drivers, they are nevertheless his employees. One cannot call these drivers 'independent contractors' or entrepreneurs without embarrassment." Hannigan v. Goldfarb , 53 N.J. Super. 190, 206, 207 (App. Div. 1958.)
The case was remanded to this court to consider the intoxication evidence issue as well as to
"* * * make findings of fact and conclusions of law * * * and enter judgment as it shall finally determine ...