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Herritt v. McKenna

Decided: December 13, 1962.


Price, Sullivan and Lewis. The opinion of the court was delivered by Price, S.j.a.d.


The issue presented by this appeal is whether petitioner's temporary employment by respondents was properly adjudged to be "not regular, periodic or recurring" (N.J.S.A. 34:15-36), with the resultant denial of compensation benefits. Both the Workmen's Compensation Division and the County Court on appeal, in denying recovery, held that the proofs established that petitioner was only a casual employee, as that phrase has been defined by pertinent decisions of our courts.

Plaintiff was 70 years of age when she sustained injury as the result of a fall in defendants' home in Englewood in this State on November 2, 1960. Petitioner lived in the same municipality. In her compensation petition she described her occupation as "domestic & cook." Respondents' answer alleged that petitioner was working as a "babysitter" at the time of the accident and that she was not an "employee" of respondents within the meaning of the aforesaid statute.

The parties are in substantial agreement as to the factual situation on the basis of which we are required to determine whether petitioner's claim is compensable.

Petitioner, who had been in receipt of social security benefits since she became 65 years of age, earned approximately $600 to $700 a year by working as a "babysitter" for various families in the general area of the municipality in which she resided. When engaged in such work she occasionally performed other tasks incident to that type of employment, to which allied phases of her work reference will hereinafter be made.

Respondent Malcolm McKenna, at the time of the accident in question, was an assistant curator of vertebrate paleontology

employed at the Museum of Natural History in New York City. He and his wife Priscilla McKenna and their three children, respectively 6 1/2, 4 1/2 and 2 years of age, comprised the household.

Prior to the occasion under scrutiny respondents had employed various "babysitters," including petitioner. The latter had worked for respondents on eight isolated occasions as a "babysitter," all in September and October 1960, as they had recently moved to their new home and had frequent need for "babysitting" services. Petitioner was paid at the hourly rate of one dollar, with a minimum of five dollars for any single engagement. The engagements were for specific dates and varied as to the hour of commencement of the service as well as to the duration thereof. Petitioner's compensation on each occasion was paid by respondents at the termination of the specific service. Each engagement was a separate hiring. Some of the engagements were arranged through the medium of telephone calls from Mrs. McKenna to petitioner. On other occasions, on the termination of the services as a "babysitter" on a particular day, Mrs. McKenna would engage petitioner for another specific date. Petitioner had not stayed "overnight" at the McKenna home on any occasion prior to October 30, 1960. In response to an interrogation by her own counsel, petitioner, describing her "usual occupation," said:

"Well, I babysit. I mostly go out to families that have children and keep them for as high as a week at a time if they are out of town for two or three days but then I go out just on regular babysitting nights from ten to fourteen hours, whatever they need me for."

On or about October 1, 1960 respondents advised petitioner that they were planning to go to Denver, Colorado, and requested that petitioner take care of their children at their home from October 30 to November 4, inclusive. Petitioner accepted the engagement. She testified that her duties during that period, as outlined by Mrs. McKenna, were to "look after the children, cook our meals and keep the house straightened, nothing hard."

Mrs. McKenna testified that she engaged petitioner for the period in question after unsuccessfully endeavoring to employ each of three other women who, it developed, had prior daily commitments preventing them from accepting the particular work assignment.

Concededly, it was arranged that petitioner's employment by respondents for the aforesaid period was to be continuous. Her engagement required her to sleep at respondents' home and to remain there during their absence. Petitioner's primary task was to take care of the children, to do the necessary ...

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