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Hawksford v. Steinbacher Packing Co.

Decided: July 8, 1963.

HERMAN HAWKSFORD, PETITIONER-RESPONDENT,
v.
STEINBACHER PACKING CO., RESPONDENT-APPELLANT



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

Gaulkin

Petitioner was denied workmen's compensation by the Division but the County Court reversed, in an opinion reported in 73 N.J. Super. 175. Steinbacher Packing Co. (Steinbacher) appeals. We affirm, but on somewhat different grounds.

The evidence shows that Hawksford had his own small meat route, making deliveries to his customers in a rented truck.

Steinbacher was a wholesaler. Hawksford came to Steinbacher's plant daily to buy meat for distribution to his customer's. One day, when Hawksford was at the plant to make such a purchase, Steinbacher asked him to cut up a quarter of beef for a customer who was in a hurry, Steinbacher's other butchers being out or engaged. While doing so, Hawksford was injured.

As the County Court said, the only question in the case is whether Hawksford was an employee as defined in N.J.S.A. 34:15-36 which provides:

"* * * 'employee' is synonymous with servant, and includes all natural persons * * * who perform service for an employer for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; * * *."

As the County Court pointed out, Hawksford is entitled to compensation if he was performing the service for Steinbacher "for financial consideration"; financial consideration need not be in money, and, if Hawksford was an employee as defined in N.J.S.A. 34:15-36, his employment was not casual. Graham v. Green , 31 N.J. 207 (1959).

We hold that Hawksford was doing a service for Steinbacher in exchange for special concessions in his purchases of meat received from Steinbacher in the past and to be received in the future, and, in view of their economic relationship to each other and their course of dealing, that constituted service for financial consideration. 1 Schneider, Workmen's Compensation , § 227, pp. 600-601; 1 Larson, Workmen's Compensation , § 47.43(b), pp. 702-703; Killebrew v. Industrial Commission , 65 Ariz. 163, 176 P. 2 d 925 (Sup. Ct. 1947); Johnson v. Industrial Commission , 88 Ariz. 354, 356 P. 2 d 1021 (Sup. Ct. 1960); Gabel v. Industrial Accident Commission , 83 Cal. App. 122, 256 P. 564 (D. Ct. App. 1927); Aleckson v. Kennedy Motor Sales Co. , 238 Minn. 110, 55 N.W. 2 d 696 (Sup. Ct. 1952); Boehm v. D.A. Sokol Hall Holding Corp. ,

274 App. Div. 954, 83 N.Y.S. 2 d 729 (App. Div. 1948), leave to appeal denied 298 N.Y. 931, 83 N.E. 2 d 866 (Ct. App. 1949); Johansen v. Gray , 283 App. Div. 647, 130 N.Y.S. 2 d 35 (App. Div. 1954); Gant v. Industrial Commission , 263 Wis. 64, 56 N.W. 2 d 525 (Sup. Ct. 1953). See also Smith v. Jones , 102 Conn. 471, 129 A. 50, 43 A.L.R. 952 (Sup. Ct. Err. 1925); Miller v. Chautauqua County Agricultural Corp. , 279 App. Div. 1126, 112 N.Y.S. 2 d 560 (App. Div. 1952), motion for leave to appeal denied 280 App. Div. 902, 115 N.Y.S. 2 d 310 (App. Div. 1952), leave to appeal denied 304 N.Y. 988, 109 N.E. 2 d 473 (Ct. App. 1952); Rhodes v. G.H. Crandall Co. , 4 A.D. 2 d 451, 167 N.Y.S. 2 d 101 (App. Div. 1957), leave to appeal denied 4 N.Y. 2 d 673, 171 N.Y.S. 2 d 1026, 148 N.E. 2 d 404 (Ct. App. 1958). Contra, Alexander v. J. E. Hixson & Sons Funeral Home , 44 So. 2 d 487 (La. Ct. App. 1950), but see Judge Ellis's dissent, and the comment on the Alexander case in 1 Larson, Workmen's Compensation, supra , § 47.43(b), p. 703; cf. Le-Co Gin Company v. Stratton , 241 Miss. 623, 131 So. 2 d 450 (Sup. Ct. 1961); Geraci v. Laloggia , 283 App. Div. 1127, 131 N.Y.S. 2 d 666 (App. Div. 1954). And see Brower v. Rossmy , 63 N.J. Super. 395 (App. Div. 1960), certification denied 34 N.J. 65 (1961); Marcus v. Eastern Agricultural Ass'n, Inc. , 58 N.J. Super. 584, 596 (App. Div. 1959), reversed (adopting the dissenting opinion below) 32 N.J. 460 (1960); Hannigan v. Goldfarb , 53 N.J. Super. 190 (App. Div. 1958).

In Killebrew v. Industrial Commission, supra , Verretto and Sullivan, partners, were baling hay for Walter A. Duncan. Duncan's son Jimmy helped the partners do the job. Further facts appear in the excerpt from the opinion quoted below. The question was whether Jimmy was an employee of the partnership. The court held that he was, saying:

"* * * While Jimmy Duncan deemed himself indebted to Verretto for favors in machinery lent to him in the past, he neither asked for nor received any compensation from Verretto or the partnership for his work as punch-back on the Walter Duncan job

of July 1, 1945. It appears from the testimony of Jimmy Duncan that he had worked for Verretto and Sullivan prior to said July 1, 1945, and had been paid 50 cents an hour * * * Jimmy Duncan testified:

'Q. I would like to know -- was there any change in your relationship as to who was boss on the job on that day and in comparison with the days you worked and received pay for them? A. No, sir.

Q. You were working and Rusty (meaning Verretto) was the boss? A. Yes, sir.' [176 P 2 d, p. 927]

In Johnson v. Industrial Commission, supra , Johnson, a prisoner in the county jail, was "loaned" with other prisoners to respondent Arizona and Yuma County Fair, Inc., a private corporation. Johnson was, of course, fed and housed gratis while in the county jail. The consideration he received for working for respondent was primarily three days' credit on his sentence for each day worked. The respondent corporation fed and housed the prisoners while they were working for it, and gave them "sundries and cigarettes." Johnson was injured while working on the fair grounds. The court held he was an employee entitled to compensation:

"* * * In the instant case petitioner was at all times under the control of the employer, Yuma County Fair, Inc., which had the right to direct the manner in which the service was to be performed and the right to terminate petitioner's services.

Although petitioner was under duress in that he was a prisoner of Yuma County, there is nothing in this record to indicate that the actual services of these eight prisoners for the Yuma County Fair, Inc. was compulsory. As an additional inducement they were each given three-days credit for each day's work and seemingly were free to choose whether they worked or not. All the essentials of a contract for hire were present. Consideration flowed from the employer by way of different food and lodging, perhaps better, and sundries and cigarettes. Petitioner evidenced his agreement to the arrangement by performing the work tendered. * * *." (356 P. 2 d , at p. 1023).

In Aleckson v. Kennedy Motor Sales Co., supra , Aleckson was an insurance broker with offices in Chicago, earning over $15,000 a year. Because of his daughter's health, his wife and daughter moved to Minnesota, while Aleckson continued to live in Chicago. Aleckson became acquainted with an officer of the Kennedy Motor Sales Company, a St. Paul car dealer, and learned that it purchased used cars in Chicago. As the opinion says, "an informal arrangement was made between them" whereby whenever Aleckson chose to come to Minnesota to visit his family, if the Kennedy Company had bought a car in Chicago which had to be driven to St. Paul, Aleckson could drive it in. Between June 1948 and March 1950 Aleckson drove at least 12 Kennedy cars from Chicago to St. Paul. He would leave Chicago Friday afternoon and arrive at his wife's residence Friday night. He would then use the car over the weekend for personal purposes such as shopping, taking his daughter to the doctor, sightseeing and going to the movies. On Sunday night, before leaving for Chicago on the train, Aleckson would deliver the car to the Kennedy Company sales lot and leave the car keys with a written statement of his actual out-of-pocket expenses for gasoline, oil and repairs, which were usually under $10, for which Kennedy reimbursed him. These amounts were the only sums received by Aleckson.

On one of these trips, Aleckson was killed. The court held that he was an employee of Kennedy and the death was compensable, saying:

"* * * The commission could reasonably find that Aleckson, in exchange for his services in driving and delivering the Cadillac to St. Paul, received the equivalent of wages in that he was thereby provided with a means of personal transportation from Chicago to Minnesota. He received something of computable value in that he did not have to pay for the gasoline and oil which he would have used had he driven his own car. He was also saved the wear and tear of his own vehicle, and upon arrival he had the use of the Cadillac in shopping for his family, taking his daughter to the dentist, going to church, and pleasure driving around the twin cities. * * *." (55 N.W. 2 d , at pp. 700-701)

The opinion in Boehm v. D.A. Sokol Hall Holding Corp., supra , says that decedent was employed as a "casual porter," but gives no details. The accident happened after his regular hours of employment had terminated, but there was proof that he often performed some services after hours for which he was rewarded "by way of refreshments." His injury was held compensable.

In Gant v. Industrial Commission, supra , Gant and Hendrickson were neighboring farmers. One day, "Without the Hendricksons asking him to do so," Gant and his son came over and helped the Hendricksons do some of their farm work "because he could see that the Hendricksons were getting behind in their work." The court said:

"Nothing was said between the parties about paying Gant for the work he and his son had performed. However, the testimony disclosed that it was the custom among farmers of the community to exchange work. The fact that the Hendricksons had not offered to pay Gant for his services would tend to support the inference that the parties were observing such custom of exchange of work which prevailed in the community, that when one farmer helped out another, the latter would repay in equivalent services at some future time. The Hendricksons talked it over among themselves and decided they would help out Gant at some future date when he needed help in repayment for what he and his son had done." (56 N.W. 2 d , at p. 527)

Some months later Gant told Robert Hendrickson "it was getting awful late and he had a lot of corn standing in the field yet, so I [Robert] told him not to worry and to quit picking it by hand; that when I finished * * *, I would go over and pick it for him." Thereafter Robert went to Gant's farm with a mechanical corn picker, and while picking Gant's corn was injured. Nothing was said between Gant and Robert about paying for Robert's services. The court said this "tends to support the inference that Robert's services in picking corn for Gant, was in repayment for Gant's services the previous May in helping the Hendricksons," and was therefore compensable.

In Gabel v. Industrial Accident Commission, supra , Gabel, a farmer, exchanged services with a neighboring farmer. A forest fire broke out and Gabel and his neighbors were engaged in fighting the fire. However, the neighbor with whom Gabel had been exchanging services asked him to take his truck and go to protect his farm buildings from the fire. While enroute, Gabel was injured. The court held it was compensable.

The evidence which leads us to the conclusion that the rationale of those cases applies to the case at bar is the following (all emphasis being ours):

Apparently Hawksford's route did not keep him very busy (he gave it up as not sufficiently profitable about two months after the accident) and, beginning about six months before the accident, he "helped out" Steinbacher from time to time. He testified:

"Q. What type of work would you do for them? A. Well, mostly delivering meat, helping load the truck and ...


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