Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
[61 NJSuper Page 356] Petitioner John Epps filed a petition for workmen's compensation, claiming that while working for the defendants he "was burning brush and a hot ash went into [his] eye." At the conclusion of the hearing before the Deputy Director, the petition was dismissed. On appeal, the County Court reversed and made an award in favor of the petitioner -- hence the present appeal by respondents.
The essential facts, as disclosed by the testimony, are in sharp dispute. The defendants, husband and wife, leased their one-family home at 27 Deerfield Road in West Caldwell, N.J., to Lt. Colonel Bartlett for the term of two years expiring August 1, 1956. Mrs. Gold lived with her father and mother, Mr. and Mrs. Kaufman, in Kenilworth, N.J., until the end of July of that year. Her husband was discharged from military service on July 6, 1956. Mrs. Gold testified that on August 1 the tenant vacated the premises. On August 3 she and her mother went to the house where she and her husband had formerly resided, to make plans for reoccupying the premises. By prior arrangement they met Mrs. Gold's father, together with petitioner, at the house.
Petitioner testified that he was positive it was a Saturday in May 1956 that Mr. Kaufman "picked him up" on McCarter Highway, Newark, and drove him to the Gold home. He had been told that Mrs. Gold had some cleaning to be done -- taking paper off the walls, cutting and burning brush, and grading in the rear yard. He testified that Mrs. Gold told him he would be paid $11 a day, his lunch and transportation for his services. In describing the work, he said it took a "little better than three weeks" to remove paper from the walls and paint, and a couple of weeks to size the walls. He also said that he worked "a couple of weeks" cleaning around the premises. Epps said that he worked more than five days a week. When asked if the work was steady or intermittent, he testified, "I worked just as long as I wanted to work. I worked every day if I wanted to work."
On cross-examination he estimated that after doing the inside work it took him three or four days to do the grading and when asked again how long it took him to grade the back yard, he estimated "around five or six weeks." When asked how long it took him to sandpaper and to steam the paper off the walls, he said, "Around three days," and when asked the same question again he answered, "A little over
three weeks. I would say." He testified to helping size the walls, and when asked how long it took him, he said, "I estimate, about a couple of weeks, or two weeks or more." Epps was asked how long it took him to clean the hedgerow and answered, "I would say, around five or six weeks." He estimated that it took him around five or six weeks to grade the back yard, and then changed his testimony to say that it took him only "three or four days, or something like that." To fill in the low spots in the yard, Epps said, it took "a couple of weeks."
He testified that while he was burning brush on August 22 at 1:30 or 2:00 in the afternoon he "was burnt in the eye by a spark * * * it popped into my right eye, and I rubbed it." He said that he worked the rest of the day, that he told Mrs. Gold about his eye, and that she told him to use some butter which he said she gave him. At the end of the day's work, he said, Mrs. Kaufman drove him home and at that time he told her his eye was burning. The next morning, he said, his eye was swollen with pus and he telephoned the Gold home and told Mr. Gold that he had a bad eye and wanted someone to do something for him. He testified that two days later Mr. Kaufman took him to a doctor for medical treatment. He said that a few days later Mr. Kaufman took him to see Dr. Ney, from whom he received further treatment, the medical expenses being paid by Mr. Kaufman. After several visits to Dr. Ney's office, his medical secretary told Epps that Mr. Kaufman had left word that he would no longer be responsible for his medical expenses. Dr. Ney continued to treat the eye while petitioner was a patient at the Eye and Ear Infirmary in an effort to save it, but eventually the right eye was enucleated.
Mr. and Mrs. Gold and Mr. and Mrs. Kaufman all testified that Mrs. Gold lived with the Kaufmans in Kenilworth, N.J., until August 1956 while Colonel Bartlett was the tenant in occupancy of the Gold house and Mr. Gold was
in military service. They denied that the Gold premises were vacant in May, June or July of 1956.
Mr. Kaufman testified that on the morning of Friday, August 3, 1956, he went to petitioner's home and inquired if he wanted to do some general work for his daughter. He then drove Epps to the Gold home in Caldwell. During the trip he told petitioner he would be paid $1 an hour, his lunch and transportation, to which Epps agreed. He said that Epps did not work every day, and that the last day he worked was August 22, 1956. Kaufman further testified he was present when his daughter and Mrs. Kaufman told Epps that there was a nursery in the rear of the Gold property with shrubbery along the property line, and that he was not to make a fire since that constituted a hazard. They told Epps the rubbish and trash were picked up by municipal service.
Mrs. Gold, her father and mother denied that Epps had been employed at any time during May, June or July 1956. Mrs. Gold and her mother testified that it was on Friday, August 3, that Mr. Kaufman brought Epps to the vacant house in Caldwell to do some general work. When asked about the arrangements made with Epps, Mrs. Gold and her mother said it was agreed he was to receive $1 an hour, his lunch and transportation. Mrs. Gold testified that between August 3 and August 22 Epps did not work every day and on some days he worked only part time. The first work Epps did was to use a steam machine to remove the paper from the walls while Mrs. Gold and her mother used scrapers. After the sizing Mrs. Gold and her mother papered the walls. Mrs. Gold and her mother testified that Epps was told he was not to build any fires because of the nursery in back of the property and the shortage of water. On the morning of August 22 Epps was sifting some dirt ...