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Berkeyheiser v. Woolf

Decided: December 26, 1961.

ALBON S. BERKEYHEISER, PETITIONER-APPELLANT,
v.
MOLLIE S. WOOLF, RESPONDENT-RESPONDENT



Conford, Freund and Labrecque. The opinion of the court was delivered by Freund, J.A.D.

Freund

This is an appeal from the final judgment of the Mercer County Court affirming the dismissal of a petition for compensation by the Division of Workmen's Compensation.

The question is whether an employer-employee relationship existed between petitioner and respondent for purposes of the Workmen's Compensation Act.

The petitioner seeks compensation payments for an injury to his right eye and facial scars sustained on July 12, 1958, when an electric drill he was operating struck a live electric wire while he was doing a repair job for respondent, Mollie S. Woolf, in his spare time from his regular employment. At the time of the accident he was regularly employed by St. Regis Paper Co. as a pipefitter, seven and one-half hours a day, five days a week, earning $108 weekly gross. The respondent is the owner of a row of five or six remodeled buildings in Trenton. From time to time, since about 1956, the petitioner performed odd jobs for respondent.

The nature of the work petitioner claims he performed for respondent may be summarized as follows. In August of 1956 or 1957 he first repaired some doorbells. In September 1957, in an hour and a half to two hours, he made temporary repairs to a damaged ceiling in one of the buildings. The next work consumed about two hours when he repaired doorbells and installed shields over them to prevent children from unnecessarily pushing on them. In November 1957 he repaired apartment windows that had been damaged by a deliveryman; he received $18 for six hours' labor. Later he installed two window sashes in

one of respondent's apartments and charged for six hours' work. In February 1958 he worked all day replacing and repairing outlets, ceiling fixtures and switches. The accident for which he seeks compensation occurred when petitioner, using an electric drill borrowed from his son, started to install an electric outlet for a refrigerator in respondent's home.

Petitioner testified that he never held himself out to the general public as being available for performing electrical or repair work. During the period of his work for respondent he had done repair work for only one other person, one of respondent's tenants. When she had a repair to be made, she would telephone to petitioner's home and speak to him or his wife. There was never any definite arrangement. She would tell petitioner the work she wanted performed and he would do it when he was not engaged in his regular daily employment. Respondent provided the necessary materials used in the work, or petitioner would purchase them at a store located on respondent's property and charge them to her account. Petitioner used respondent's or his own tools to perform the jobs. Whenever a job was completed he would tell respondent the number of hours consumed and she paid him at the rate of $2.50 or $3 an hour. Petitioner did not keep any records of the work performed or the time consumed for each job. There were received in evidence receipts signed by petitioner, one dated November 2, 1957, amounting to $18 for six hours of labor for repairing window damage, and another, dated February 18, 1958, amounting to $18 for six hours of work repairing electric outlets, switches and fixtures.

The respondent testified that she did not withhold any money from petitioner's pay for social security or withholding tax, as she was under the impression that such reductions were unnecessary since petitioner was making less than $50 on each occasion.

Petitioner's claim was dismissed by the judge of the Division of Compensation on the ground that petitioner

was an independent contractor and not an employee of the respondent at the time of his injury. On appeal, the County Court, in making an independent review, affirmed the dismissal of the claim petition on the same basis, since respondent had no control over the manner of the work to be accomplished.

On this appeal the petitioner urges as grounds for reversal: (1) that the test of control to establish an employer-employee relationship was not decisive under the proofs, since the character of the work, in the light of his experience, obviated the need for respondent to direct the details of the work; (2) that the work performed by petitioner was essential to the maintenance and operation of respondent's business enterprise, and ...


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