On appeal from the Division of Workmen's Compensation.
This is an appeal by the petitioner from a denial of compensation by the Division of Workmen's Compensation.
Petitioner is a butcher. Respondent conducts a wholesale meat business. On March 17, 1958 petitioner was
engaged in operating a wholesale meat business of his own in which he purchased meat from the respondent and others and resold the same to retail butchers. On that day he was present at respondent's place of business for the purpose of buying meat for his business. He was requested by Walter Steinbacher, one of the officers of the respondent, to butcher a forequarter of beef for another customer. This is an operation which normally takes about three minutes. Petitioner did so and while he was engaged in the work someone jostled the meat and petitioner cut his left index finger. The extensor tendon was lacerated involving the second metacarpal phalangal joint. Dr. Max Novich testified for the petitioner that he has a 25% disability of the left hand, the finger itself being 100% disabled and the grasp of the hand being adversely affected. The respondent submitted a report of Dr. William B. McLaughlin which has not been presented to this court. Respondent offered no testimony other than the report of its physician and rested its case upon the facts proved by the petitioner. The judge of compensation held as follows:
"I believe, in reviewing the petitioner's testimony, that it is clear that the petitioner was on the respondent's premises on the day in question in furtherance of his own business; that his performing the butchering as described was a situation that arose by pure chance. However, there is no question that the defense of casual employment is not available to the respondent since the particular task performed was part of a regular function at the respondent's business. The fact that petitioner received no wage, per se , would not rule out an employer-employee relationship. However, when we look to the intention of the parties which must be gleaned from examining the facts and circumstances surrounding the incident, I am left with the inescapable conclusion that what was performed here was a 'favor' or an accommodation by one business associate for another, and that at no time was there any question of service being performed for an employer in the spirit of gainful employment.
In the light of these facts, I am constrained to dismiss the claim petition and the same is hereby dismissed."
In addition to the facts above recited, the petitioner's undisputed testimony shows that beginning about six
months prior to the incident in question, respondent had from time to time employed the petitioner to assist in butchering and making up orders, loading respondent's truck and making one delivery run. Petitioner performed this service after he had finished his own meat deliveries to his customers. There was no regular work schedule. He testified that he was called upon to make one delivery run about once a week for a while and then less often, perhaps once a month up to the date of the accident. There was no prearrangement as to the amount which petitioner was to be paid but respondent would simply give him $15 on each occasion and he never questioned the amount. He had no knowledge as to whether any social security or unemployment compensation taxes were paid with respect to the sums paid to him. Nothing was deducted from the even $15 which he received.
On the day on which the accident occurred, petitioner was not asked to make a delivery run and was not working for respondent. He testified that he was asked to do a favor and he did so. He did not expect to receive any money for this service but did expect reciprocal favors in the choice of meat in connection with his own business.
Petitioner argues that he was an employee because respondent had the right to direct and control the performance of the work and he was furthering the work of the employer. He further argues that the performance of the work implied a promise to pay what it was ...