Conford, Foley and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.
This is an appeal from a judgment of the Morris County Court, affirming the dismissal of a claim petition by the Workmen's Compensation Division.
The deputy director and the County Court concluded that the petitioner had failed to sustain the burden of proving that she was an "employee" of respondent within the meaning of N.J.S.A. 34:15-36. Whether the petitioner was respondent's "employee" at the time of the accident on February 12, 1957, when she slipped and fell on the floor of respondent's premises, thereby sustaining a broken hip, is the sole issue on this appeal.
It has been stipulated that if the petitioner was the respondent's employee, and thus covered by the Workmen's Compensation Act, she will be entitled to receive temporary disability of 31 weeks, permanent disability of 22 1/2%, and her medical expenses amounting to $1,160.06 paid, and $100 to be paid directly to her attending physician, Dr. William U. Cavallaro.
Prior to March 1956, and since then, the respondent conducted his business in a house owned and renovated by him in Chatham, New Jersey, using the name of "Michael of Vienna, International Hair Stylist." In a newspaper interview on March 8, 1956, relating to his business, the respondent expressed an intention to expand his operations from its then existing concentration on hair styles and coloring, to provide "for a complete beauty service with complete massage and hair styling." The petitioner, 60 years of age, with some 40 years' experience in working at her specialty of administering facial treatments in nearby Millburn, New Jersey, read this newspaper report. Some time thereafter
she spoke with the respondent with reference to the report and her willingness to enter into an arrangement with him as "facial operator" in his salon. The respondent then had two vacant rooms in his establishment across the hall from the rooms in which he was operating his hairdressing business, which were not then quite ready for use, and the parties discussed the use thereof for the facial treatment work of the petitioner.
Petitioner and respondent made an oral agreement providing for the petitioner to move into these rooms as soon as they were suitably prepared. This necessitated cleaning and redecorating, which work was done by the respondent at his expense. One of the rooms was to be used by the petitioner for her work. They discussed the furniture and equipment needed for this room. The petitioner advised respondent that she had her own chair used for the facials, a dressing table, another chair to sit on, and a vibrator which she would furnish. She did furnish these items. It was also understood that she would pay for the towels or linen service used in giving the facials. In the other vacant room, the respondent had a showcase worth about $1,000. It was agreed that he would display cosmetics in the show case, that the petitioner would sell and promote the sale of the cosmetics, and that she would receive 15% commission on any cosmetics sold by her. As to cosmetics used by her in the facial treatments, it was understood and agreed that the respondent could make large purchases in bulk at a very substantial discount, and that he would purchase the same in his name, and he would be reimbursed for the cosmetics used at the cost.
The question of compensation to be paid to and received by the respective parties was also discussed. It was finally agreed that the income from the giving of the facials by petitioner would be divided, 75% to the petitioner and 25% to the respondent. This division was not specifically called salary, or rent, or by any other name at the time the oral agreement was entered into.
In November 1956 the petitioner moved in with her facial chair, dressing table, other chair, and electric vibrator and began operations. About a dozen of her own former clientele from Millburn, where she had been giving facials, followed her to this new enterprise. The respondent's former sign outside of his salon referring to him as "Michael of Vienna, International Hair Stylist" was continued, but respondent placed another smaller sign beneath the other, which read "Facial Treatments." The petitioner's name did not appear in any way on that additional sign. The obvious inference was left with the passerby and respondent's customers that "Michael of Vienna" had enlarged his hair styling business to include facial treatments. His conduct permits an inference that he, too, regarded her operations as an integral part of his beauty parlor business.
The petitioner was furnished with no key. Since the respondent closed his establishment on Mondays and worked only between Tuesday and Saturday of each week, the petitioner did no facial treatment work on Monday, but performed only from Tuesday to Saturday, when the respondent's place of business was open to his customers.
No separate telephone was installed for the petitioner; instead, the telephone of the respondent was used to make all appointments whether for a hair styling job or a facial treatment operation. He paid for all the telephone service. The respondent and his other employees made all appointments for the petitioner and she did not in any way control, according to the record, the hours of those appointments or the persons for whom the appointments were made. In addition to her own dozen former customers, the respondent supplied an additional 35 or 40 customers, so that he furnished the vast majority of the customers to whom she gave facials. Her hours of attendance at the respondent's salon were mainly determined by the appointments which he and his ...