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Van Dorem Johnson Ind. v. Walter Kidde Construction Inc.

Decided: May 2, 1961.

VAN DOREM JOHNSON, IND., AND AS GUARDIAN FOR JANE JOHNSON, JOSEPH JOHNSON, JR., AND MELVIN BROWN, PETITIONER-RESPONDENT,
v.
WALTER KIDDE CONSTRUCTION, INC., RESPONDENT-APPELLANT



On appeal from the Division of Workmen's Compensation.

Masucci, J.c.c.

Masucci

[67 NJSuper Page 406] This case involves an appeal from an award to petitioner by the Division of Workmen's Compensation Division.

The first issue raised in this appeal involves the question of the Division's jurisdiction in a claim arising out of an accident which took place in and during the course of the petitioner's employment in the State of New York.

This issue involves a mixed legal and factual question of the situs of the employment contract between the parties.

The deceased had, for some years prior to the claimed incident, been employed by the respondent on various occasions and on different building projects. At times the employment was continuous from one project to another and on other occasions there were periods of unemployment between projects ranging from short periods to approximately ten months.

As each project ended, the employment was formally terminated by written notice. When and if another project developed, neither party was under any obligation to resume employment relations and each was free to do so if he or it so desired. Although both parties were subject to union contract agreements, neither party had any duty to give or receive priority rights of re-employment. To obtain re-employment as to each project, the deceased was required to make written application for the same and the respondent was under no obligation to re-employ the decedent. To each, resumption of employment was purely voluntary.

Between the last employment in New Jersey on the Prudential project and his re-employment in New York State, a period of almost two months had elapsed, during which time there was no employment relationship between the parties.

The issue of whether the decedent's employment in New York State was a continuation of the New Jersey employment, or a separate and distinct employment, must be resolved on the nature of the hiatus between the separate employment phases. English v. Stokes Molded Products , 43 N.J. Super. 68 (App. Div. 1956).

In the instant case, the actions of the parties of definite termination, by formal written notice, of each employment,

with an uncertain and indefinite break in the continuity of said employment and, most importantly, with no express, implied or tacit understanding or agreement of re-employment, nor even the right of any priority re-employment, all spell out separate and independent contracts of re-employment with every new project.

At the argument before this court the petitioner stressed the cases of Bowers v. American Bridge Co. , 43 N.J. Super. 48 (App. Div. 1956); English v. Stokes Molded Products, supra and Gomez v. Federal Stevedoring Co., Inc. , 5 N.J. Super. 100 (App. Div. 1949), in support of the contention that the ...


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