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Knight v. Cohen

Decided: July 14, 1959.

JAMES A. KNIGHT, PETITIONER-RESPONDENT AND CROSS-APPELLANT,
v.
HERBERT P. COHEN, INDIVIDUALLY, RESPONDENT-APPELLANT, AND HERBERT P. COHEN AND MURRAY KLEIN, A PARTNERSHIP, SUED HEREIN AS INDUSTRIAL LUMBER COMPANY, RESPONDENTS-RESPONDENTS AND CROSS-RESPONDENTS



Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D.

Sullivan

An award in favor of petitioner in a workmen's compensation case engenders the appeals and cross-appeal herein considered.

The petitioner, James A. Knight, had been employed by Industrial Lumber Co. (Industrial) as a truck driver since 1950. His weekly wages from Industrial at the time of his accident were $66, and his regular hours of employment were from 8:00 A.M. to 4:30 P.M. each day, five days a week. Industrial is a partnership consisting of Herbert P. Cohen and Murray Klein as partners. Its business consists of the operation of a lumber yard in Jersey City. Petitioner's "boss" at Industrial was Cohen, one of the partners.

"For three to four years" prior to his accident petitioner had started taking care of the grass at Cohen's house in Maplewood, for which he was paid $25 monthly by Cohen. He also performed other chores about the Cohen household as requested, such as washing and waxing automobiles,

handling storm windows, screens, and the like for additional compensation. None of this work was performed during petitioner's regular working hours at the lumber yard. Petitioner also did janitorial evening work for Bloomfield Window Washing Company at Upsala College for wages of $80 per month. On April 20, 1957, while cutting the grass at the Cohen residence with a power mower, petitioner slipped and fell and the mower severely injured his left foot. As a result of this incident he filed a workmen's compensation claim petition against "Herbert P. Cohen and/or Industrial Lumber Company." After hearing, the deputy director determined that the employment of petitioner at the time of the accident "amounted to a joint employment" and that "petitioner was in fact working for Industrial at the same time he was performing functions for the individual." The compensation award was charged one-half to each respondent. In calculating the compensation rate the deputy director combined all of the wages earned by petitioner at the time of the accident and arrived at a weekly wage of $96.25. This resulted in an award for temporary and permanent disability at maximum rates.

On appeal the County Court determined that petitioner's employment by Cohen at his residence was distinct and separable from his employment by Industrial. The court therefore ruled that the award was to be assessed only against Cohen individually and not against Industrial. As to the amount to be awarded, the findings on disability not being contested, the court held that "* * * all the petitioner's regular employment wages must be included when determining the rate of compensation to be applied, which in turn results in the maximum assessment rate here." The effect of this was to affirm the quantum of the award granted in the Division. The only modification made by the County Court was that the award against Industrial, the partnership, was vacated and as to it, the petition was dismissed. Knight v. Cohen , 53 N.J. Super. 122 (Cty. Ct. 1958).

Cohen has appealed from so much of the ruling as assesses the entire compensation award against him. He also charges that it was error for the court to add petitioner's wages from separate employments together in order to arrive at petitioner's rate of compensation. Petitioner appeals and cross-appeals from that part of the ruling which dismisses the claim against Industrial.

Petitioner's claim against both respondents is based on the concept of joint employment. He relies on Cser v. Silverman , 46 N.J. Super. 599 (Cty. Ct. 1957), affirmed per curiam 50 N.J. Super. 125 (App. Div. 1958), to support his position that both of his employers are liable for his compensation claim and that in computing his award, the wages paid him by both employers must be added together.

The legal principle of Cser, supra , is that in a compensation case where there is a finding of joint employment, the award is to be measured by the total wages paid by the joint employers and is to be assessed against both of them. See also Scott v. Public Service Interstate Transp. Co. , 6 N.J. Super. 226 (App. Div. 1950). Application of the Cser rule, therefore, depends on whether or not joint employment exists. In Cser the injured employee worked simultaneously for an individual and also a corporation run by the same individual. The County Court, however, found a unity of control and authority in the two employments, with a corresponding intermingling of the employer's duties on both jobs to a point where it was impossible to separate them. The court said at page 601, of 46 N.J. Super.:

"It was Silverman alone who directed Cser when to go and what to do in Perth Amboy where the corporation's building required some maintenance work; it was Silverman alone who directed Cser when to go and what to do in New Brunswick where Silverman's bottling establishment was located. Plainly, the 'corporation' was a Silverman family convenience. The respective contributions of $40 and $25 per week bore absolutely no relationship to the service rendered for one or for the other during each recurrent week of ...


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