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Petrone v. Kennedy

Decided: June 28, 1962.

FRED F. PETRONE, PETITIONER-APPELLANT,
v.
KEVIN KENNEDY, RESPONDENT-RESPONDENT



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Petitioner, a carpenter, was injured while building an extra room on respondent's dwelling. He was awarded workmen's compensation in the Division. The County Court reversed, holding that petitioner was an independent contractor. Petitioner appeals, contending he was a mere employee. In support of the judgment below, respondent argues that petitioner was indeed an independent contractor, and, even if he was not, he was merely a casual employee as defined in N.J.S.A. 34:15-36, and therefore, in either event, he was not covered by the Workmen's Compensation Act.

The respondent came to know the petitioner when the petitioner, an employee of Tower Construction Co., was working as a carpenter in connection with a renovation job being done by Tower at the respondent's home. This was four years prior to the date of the accident in issue. Another employee of Tower at that time was Santo Tocco. After the Tower job, respondent engaged the petitioner individually to do some minor carpentry and repair jobs for him at his home on various occasions. At various times during 1957 the petitioner enclosed a fuse box and meter, installed a louvre over an opening in the cellar, repaired some doors and screens and blocked out the lower section of book shelves in the living room. In the spring of 1958 he repaired a fence and stable, playhouse and play equipment, built a spy tower for the playhouse, and installed gutters on the barn. In the fall of 1958, he enlarged the meter box enclosure and repaired more screens, and doors. In the spring of 1959 he made a post and rail fence for the respondent. On each of these occasions the arrangements were the same. No estimate was given by the petitioner, but he

did what he had to do at an hourly rate of pay, used his own tools, and the respondent supplied the materials. The petitioner was not in business for himself because he was regularly employed by Tower, and these were odd jobs which he did after hours or on days off to supplement his income.

In May or June of 1959 Mrs. Kennedy was expecting the birth of another child, as a result of which Mr. and Mrs. Kennedy made plans to extend the second floor area of their home and to construct an additional bedroom over the kitchen. Mr. Kennedy acted as his own architect, although he is in the advertising business, drew rough plans, and phoned the petitioner who came to see him. He inquired as to what it might cost for labor and materials to build this extra room and was told by the petitioner that as far as labor was concerned the petitioner would expect the union rate of $3.50 an hour; and, after making inquiries at the lumber yard as to the cost of materials, he advised Mr. Kennedy that labor and materials would come to somewhere between $2500 and $3000. He also advised Mr. Kennedy that if he wanted the room done by November 1959, when the child was expected, it would be necessary for the petitioner to have extra help. Santo Tocco was engaged to give this additional help. Materials were ordered from the lumber yard by Mr. Kennedy. No specification of the materials was necessary because the lumber dealer knew exactly what was needed to satisfy the requirements of the plan. The record does not indicate when work began. The petitioner and Tocco worked evenings after their regular hours of employment, and on weekends.

There was no supervision by Kennedy over the work effort of the petitioner and Tocco, since they were experienced carpenters who knew the result desired by the Kennedys and were able to do the work without being told how by the Kennedys. Indeed, the Kennedys were away for their vacation during August, when the accident happened. Petitioner and Tocco had their own tools. They used the

respondent's ladder, a hacksaw and a vise. Before work actually began, the Kennedys made one change in the plan by providing for two separated windows, where the original plan called for a double window. They did not direct the operation, and although they reserved the right to make any changes in the plans as the work progressed, they made none beyond the initial change in the windows before the work began. The understanding as to payment was that the Kennedys would pay the bills for the materials directly and would pay the petitioner and Tocco $3.50 per hour each for their labor. The parties agreed that the labor charge would be paid upon completion of the job.

On August 18, 1959 petitioner's two-weeks vacation from his regular job began, and it was his intention to devote his vacation period to the work on the Kennedy home. On that day, while striking a nail, the nail bounded back and caused the damage to his eye for which the award was made. There is no dispute as to the nature and extent of his injury and disability, or as to his hospital and medical expenses. The issue is solely one of liability.

As we said in Berkeyheiser v. Woolf , 71 N.J. Super. 171 (App. Div. 1961):

"Overlapping between casual employees and independent contractors is common and it is not unusual that a petitioner falls into either or both unprotected classes. Brown v. Grand View Auditorium, Inc. , 17 N.J. Misc. 319, 8 A. 2 d 821 (Dept. Labor 1939). Accordingly, our primary concern is not so much into precisely which class this part-time repairman falls, but rather whether he qualifies as a member of the protected group of workmen within the fair meaning of the statute."

The right to workmen's compensation of those who do maintenance, repair and construction for householders or for others not in connection with their business, has been considered in a number of New Jersey cases. Berkeyheiser v. Woolf, supra; Glidear v. Charles , 11 N.J. Super. 523 (App. Div. 1951), affirmed o.b. 7 ...


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