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Marcus v. Eastern Agricultural Association Inc.

Decided: December 28, 1959.

MURRAY MARCUS, PETITIONER-RESPONDENT,
v.
EASTERN AGRICULTURAL ASSOCIATION, INC., RESPONDENT-APPELLANT



Conford, Foley and Mintz. Mintz, J.c.c. (temporarily assigned). Conford, J.A.D. (dissenting).

Mintz

This is a workmen's compensation case. The Division of Workmen's Compensation awarded petitioner compensation. The County Court affirmed. The respondent appeals. The sole issue on appeal is whether the testimony discloses that petitioner was an employee within the purview of N.J.S.A. 34:15-36.

It is the duty of this court to weigh the evidence adduced below and determine whether petitioner has sustained the burden of proving "employee" status by a preponderance of the evidence, giving full and respectful consideration

to the views expressed on both facts and law by the Division and County Court. Russo v. United States Trucking Corp. , 26 N.J. 430 (1958).

Petitioner and his wife jointly own a chicken farm in Farmingdale, New Jersey. The respondent is engaged in the business of producing and selling eggs, and in raising laying chickens. Early in 1957 petitioner entered into an oral arrangement with respondent whereby he would raise chicks owned by respondent on his farm at a price of $10 a week per thousand chicks. Subsequently, the number of chicks on his premises averaged between 7,500 and 8,000, and a new arrangement was entered into orally whereby petitioner received a flat sum of $70, later increased to $75, a week for his services and facilities. Respondent made no deductions for social security, withholding, or any other tax.

On December 7, 1957 petitioner was working in the chicken building which consisted of "five big rooms and there were five stoves operating with chicks under the stoves." There was an explosion in one of the metal stoves, as a result of which he sustained multiple burns.

The feed for the chicks was supplied by the respondent. Its representative instructed petitioner how to feed the chicks, would advise medication, and call in a veterinarian when required. The advices were generally by telephone, although respondent's Mr. Boyarin came to the farm on an average of once a month. On one occasion respondent's representative instructed the petitioner to change the gas heating system, which he did at a cost of $12. Petitioner had no employees to assist him in his work, although he admitted that his wife helped him on occasion, working five hours for the entire week when required.

At the conclusion of the oral argument before us counsel, at the request of the court, stipulated certain facts not disclosed in the testimony, for inclusion in the record. The stipulation included the following: The petitioner purchased the farm on January 10, 1949 for $33,500, and that as of October 1, 1959 the mortgage balance amounted to

$10,136.33. The operating expenditures amounted to approximately $100 yearly for replacements and costs of repairs to equipment. The equipment on the farm, dates of acquisition and cost thereof are as follows:

10 brooder stoves 3/15/49 at $35.00 $350

100 8-ft. hoppers 9/2/49 at 5.00 500

100 2-ft. hoppers 3/15/49 at .50 50

100 4-ft. hoppers 2/10/53 at .70 70

600 holes -- nests 1/5/54 at 1.00 600

600 holes -- nests 5/10/49 at 1.00 600

30 feed buckets 3/15/49 at .80 24

60 chick jars 3/22/49 at 1.50 90

25 rings for brooding 5/10/49)

2/8/51) at 3.00 75

20 chicken crates 5/10/54 at 2.75 55

From the date petitioner made his arrangement with respondent until the date of the accident, the equipment above itemized was used exclusively for raising of chicks owned by respondent. A suit is presently pending against petitioner, instituted by a feed company, for $14,336.14, representing feed purchased by petitioner prior to his arrangement with respondent. The petitioner's farm contains 24 acres. Only approximately two acres were devoted to poultry-raising activities, and from January 1, 1956 to January 1, 1959 about ten acres were leased out for the raising of corn at an annual rental of $100. During said period no other kind of activity for profit was conducted on the farm. There were no other farm buildings or commercial equipment on the premises except that which the lessee brought on the farm in connection with his corn-raising activities. Petitioner and his wife occupied the residence. The balance of the land on the farm was not put to any use. Petitioner performed no work in connection with the raising of corn. Between January 1, 1956 and the spring of 1957 petitioner maintained poultry on the premises until one month before his arrangement with respondent, at

which time he sold the remainder of his flock with the intention of abandoning the poultry raising business.

The factual situation presents a case of novel impression in New Jersey.

In Hannigan v. Goldfarb , 53 N.J. Super. 190, 195 (App. Div. 1958), this court held that

"The term 'employee' in our Workmen's Compensation Act is not limited to narrow common-law concepts for, in addition to servants, it 'includes all natural persons * * * who perform service for an employer for financial consideration.' N.J.S.A. 34:15-36. This is a broad definition which includes relationships not ordinarily considered to constitute employment. Our act is construed to bring as many cases as possible within its coverage. * * *"

The rule applicable here, as in any case where the character of the relationship between the parties is in issue, is simply that it "* * * must be resolved by a balancing of the various elements presented by the entire complex of facts with which the court is confronted. The element of control is one most stressed in the cases." Piantanida v. Bennett , 17 N.J. 291, 294 (1955). The element of control is the "determinative factor" and the criterion by which each case is determined. Wilson v. Kelleher Motor Freight Lines, Inc. , 12 N.J. 261 (1953); De Monaco v. Renton , 18 N.J. 352 (1955). The status of the petitioner is to be resolved upon the totality of the facts ...


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