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Graham v. Green

Decided: December 7, 1959.

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



On appeal from the Superior Court, Appellate Division.

For reversal -- Chief Justice Weintraub, and Justices Francis and Proctor. For affirmance -- Justices Burling and Jacobs. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

The Appellate Division, in an opinion reported at 54 N.J. Super. 397 (1959), reversed a County Court judgment which had sustained a compensation award to petitioner. We granted certification. 29 N.J. 509 (1959).

The respondent Max Green, trading as Service Beverage Co., was engaged in the business of distributing soft drinks. He had six or seven employees who operated delivery routes and who generally cleaned up such incidental breakage of bottles as occurred in the normal course of the business. There was testimony that such breakage never exceeded "two or three cases" of twelve bottles each. On or about Wednesday, May 23, 1956 a truck driver named Willie Benjamin, employed by the Society Club Beverage Co., called at respondent's place of business to pick up some empty bottles. While

he was removing bottles stacked against a permanent partition, it unexpectedly collapsed causing many of the bottles to fall and break. The evidence indicated that several hundred to a thousand bottles were broken. On or about Friday, May 25, 1956 the respondent, through his agent Saul Kopf, asked Benjamin to come on his day off and clear the debris and to bring a helper with him. On Saturday morning, May 26, 1956 Benjamin and the petitioner, who was in the employ of the Robert Treat Beverage Company, came to respondent's place of business. They received some equipment and instructions from Saul Kopf, cleared the broken glass and left about 4:00 P.M. after being paid by Mr. Kopf. Benjamin received $11 and petitioner received $10. Admittedly this was the only occasion when petitioner ever did any work for respondent in any connection whatever.

While petitioner was clearing the glass at respondent's place of business, he cut his right thumb. On the following Monday and Tuesday he went to work for his regular employer, the Robert Treat Beverage Company. His thumb hurt and, after reporting to a clinic, he discontinued his work with the Robert Treat Beverage Company. He was treated by a private physician, was thereafter admitted to the Martland Medical Center where the diagnosis was osteomyelitis of the right thumb, and was in due course discharged. He filed a petition for compensation in which, inter alia, he alleged that he was under 18 years of age at the time of the accident and sought double recovery under N.J.S.A. 34:15-10. The Deputy Director in the Division of Workmen's Compensation found for petitioner and rendered an award of double compensation, one-half payable by respondent individually and one-half payable by respondent's insurance carrier. The County Court affirmed, but the Appellate Division reversed on the ground that petitioner's employment by respondent was a "casual" one excluded from the Workmen's Compensation Act by the terms of N.J.S.A. 34:15-36.

The Workmen's Compensation Law originally excluded "casual employment" without definition of the term. L. 1911, c. 95, § 23, p. 144. Its elusiveness quickly became apparent. See Hubbe v. Lynch, 36 N.J.L.J. 87, 89 (C.P. 1913). In 1919 the Legislature amended the act to exclude (L. 1919, c. 93, § 9, p. 211; N.J.S.A. 34:15-36):

"* * * casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring * * *."

In its practical application to business employments, the statutory definition has not been serviceable. Surely the judicial results heretofore reached cannot be reconciled; nor would one venture a precise interpretation with confidence that it will meet the sundry situations which will arise.

Statutes elsewhere adopt different patterns. A majority of the states exclude employment if it is both (1) casual and (2) not in the usual course of the employer's business (some, following the English statute, substitute "otherwise than for the purpose of" the employer's business for the second requirement). At one time a number of states excluded the employment if either of those two requisites appeared. A few measure coverage by the period of employment, a test which at least is precise. And still others have dropped the exclusion, doubtless in recognition of the inherent difficulties of the usual tests and the benefit of coverage to both employer and employee in the light of present-day business practices. See 1 Larson, Workmen's ...


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