Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Riverside Gardens, Inc. (Riverside) appeals from a County Court judgment affirming a Workmen's Compensation Division award to petitioner and her two sons for the death of her husband, Frederick Ryder, resulting from a fall from the third floor of the Riverside Garden Apartments, a building owned by Riverside. Petitioner's claim against Burton Moore, the tenant occupying the apartment from which her husband fell, was dismissed. She does not appeal this action.
Ryder was a carpenter, and for some eight to ten years had done considerable repair work in the apartment building owned by Riverside. The corporation had a full-time superintendent, William Johnson, and two other full-time employees to take care of normal maintenance work. However, when something beyond ordinary maintenance was involved, Johnson would inform either Burton Doremus, secretary of the corporation, or Doremus' sister, Helen Conover, the vice-president. If Doremus or Mrs. Conover decided that
the work should be done, he or she would tell Johnson to summon Ryder. Johnson had authority in an emergency to take whatever steps were necessary to remedy the situation, including the hiring of outside help. Although there is conflicting testimony as to whether Johnson also had authority to hire Ryder in the absence of an emergency, without consulting Doremus or Mrs. Conover, it is at least clear that it was Johnson who would speak to Ryder, explain the job to him, and ultimately give him the money he earned.
Ryder also did work for various tenants in the building at their own expense. Normally this would come about by a tenant informing Johnson of some job he wanted done, and asking him to send someone to attend to it. Johnson would usually send Ryder, who was his close friend.
On October 13, 1956 Ryder was in the apartment of Mr. and Mrs. Burton Moore on the third floor of the Riverside Garden Apartments. Whether he was then working for the Moores or for Riverside, the owner of the building, will be discussed in detail below. The building was but three stories high, and the Moore living room windows on the east side projected out from the sloping roof. The lowest portion of the roof was below the window and formed a ledge of 10 or 12 inches. Ryder's work on the day in question apparently called for his going outside the window and, again apparently (since no one saw the accident), it was from this ledge that he fell to his death. The ledge was examined sometime after the accident and was found unbroken.
Petitioner's theory is that her husband was in the employ of Riverside at the time he fell. She contends that he had been retained by Johnson, with the approval of Mrs. Conover, to repair the windows on the east side of the Moore apartment. It is clear from the record that these windows had been leaking for about ten years and that the Moores had complained of this to Johnson, Doremus and Mrs. Conover.
Riverside, on the other hand, maintains that Ryder was in the apartment at the request of Mr. Moore, for the purpose
of putting covers on the air conditioning units there. It also urges that even if Johnson sent Ryder to repair the windows, neither Doremus nor Mrs. Conover had approved this work, so what Johnson did was beyond the scope of his authority. The corporation further argues that Ryder's death was caused by his intoxication and, in any event, he was an independent contractor and not an employee.
The deputy director held that petitioner had sustained her burden of proving that her husband was employed by Riverside at the time of his death. He also held against the corporation on the other issues just mentioned. The County Court affirmed, and hence this appeal.
We do not consider it necessary to discuss at any length the issue of Ryder's alleged intoxication. Riverside clearly failed to discharge its burden of proving that this was the proximate cause of death.
As to the contention that Johnson had no authority to employ Ryder, suffice it to say that Johnson had at least the apparent authority to do so. The corporation is as fully responsible for his acts within the scope of such authority as if he had actual authority. El v. Newark Star-Ledger , 131 N.J.L. 373 (Sup. Ct. 1944).
We do not reach the relatively more difficult question of whether Ryder (assuming he was retained by Johnson to repair the windows) was an employee or an independent contractor, for our independent review of the record (Russo v. United States Trucking Corp. , 26 N.J. 430 (1958); Ricciardi v. Marcalus Manufacturing Co. , 26 N.J. 445 (1958)) convinces us that petitioner has not carried the burden of proving that her husband was working for Riverside at the time he fell to his death.
Petitioner's main witness was William Johnson, who had been superintendent of the Riverside Garden Apartments from 1947 until March 1957, six months before the hearing. He testified that sometime prior to October 13, 1956 Mrs. Conover had authorized him to hire Ryder to repair the windows in the Moore apartment. He, in turn, spoke to
Ryder about this job during the week preceding the accident, while Ryder was doing some other work at the building.
According to Johnson, Ryder arrived at the apartment building about 10 A.M., October 13, 1956. Ryder told him he would go up to the apartment to examine and measure the windows, and then would tell him whether they could be repaired or would have to be replaced. Although Johnson's testimony is vague on the point, it seems that Ryder then told him he would leave and return later that day, or the following day, to do the measuring. In any event, Johnson went shopping, and when he returned at about 1:30 P.M., he learned that Ryder had been killed.
On cross-examination Johnson said that despite the frequent complaints of the Moores about the rain coming in through their two living room windows, the windows had not yet been repaired when he left Riverside's employ in March 1957. Ryder, according to the witness, had over the years repaired about 50 such defective windows in the building.
Johnson was then confronted with his signed statement, taken by Capello, an insurance investigator, on October 15, 1956, two days after the accident. The statement began by describing the procedure by which Johnson, with the approval of Doremus, had frequently employed Ryder to work for the corporation. It then said that Ryder had sometimes been employed by various tenants for their own purposes, and continued as follows:
"* * * Sometime about one week ago I met a tenant Burton Moore Apt. 3A in the front yard. Mr. Moore asked me to tell Mr. Ryder that he, Mr. Moore had a job of installing plastic covers on Mr. Moore's air conditioning units, which are located outside of the windows on the third floors. On or about Tuesday or Wednesday of last week Fred Ryder came to the apartment to borrow some lumber. At this time I told Mr. Ryder of Mr. Moore's request. Mr. Ryder stated that he would make the arrangements with Mr. Moore. I do not know when Mr. Ryder made these arrangements. On Saturday Oct. 13, 1956 at or about 10 or 11 A.M. Mr. Ryder met me in the front yard of the house and told me to tell Mr. Moore that he would not complete the job on Mr. Moore's air conditioners
on that date, since he had another job to do in Lincroft which would take him most of the day. I did not see Mr. Moore to tell him. I did not see or hear of Mr. Ryder until about 1:30 P.M. when Mr. and Mrs. Moore came to my apartment and notified me that Mr. Ryder was laying below their window on the ground about forty feet below their window. Mr. Moore told me that Fred Ryder was standing outside his window and Mr. Moore had left the room to get the plastic covers. Mr. Moore said that when he returned to the window, Mr. Ryder was no longer on the ledge. Mr. Moore then saw that Mr. Ryder was laying on the ground. At the time of this accident Mr. Ryder was acting entirely on his own, was not authorized to do this work by me and I was not keeping any record of Mr. Ryders time on this job which Mr. Ryder was doing directly for Mr. Moore. The last time I recall that Mr. Ryder worked under my authorization was on or about Oct. 8 to 10. I forwarded Mr. Ryders check to him for this job on Oct. 11, 1956 at which time Mr. Ryder stopped by my apartment. I have read the four page statement. It is true Wm. G. Johnson."
When Johnson was shown this statement the following colloquy took place:
"Q. * * * Can you tell us whether that is your signature? A. Well, of course, ...