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Buchner v. Bergen Evening Record

Decided: November 7, 1963.

RUSSELL BUCHNER, ETC., PETITIONER-RESPONDENT,
v.
BERGEN EVENING RECORD, RESPONDENT-APPELLANT



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Collester, J.A.D.

Collester

Respondent Bergen Evening Record (Record) appeals from a judgment of the County Court affirming an award by the Division of Workmen's Compensation in favor of petitioner Russell Buchner, a newspaper delivery boy, who was injured on February 6, 1958 when struck by an automobile while delivering copies of the Bergen Evening Record to subscribers thereof. Since petitioner was a minor under 18 years of age and had not obtained a working permit prior tohis engagement by Record, a double indemnity award was granted pursuant to N.J.S.A. 34:15-10.

Both the Division and the County Court, on appeal, determined that the relationship of employer-employee existed. The happening of the accident, that it arose out of and during the course of the delivery of the newspapers, the quantum of the award, and other incidental requirements for compensability are not in dispute. Respondent argues only that petitioner was not its employee at the time of the accident, but rather was an independent contractor to whom it owed no responsibility under the Workmen's Compensation Act.

Respondent publishes a daily newspaper which has wide circulation in Bergen County. Petitioner, who was only 14 years old at the time of the accident, had been asked by a "district adviser" of respondent to take over an established newspaper delivery route sometime prior to January 14, 1957. Upon his assent, a written agreement prepared by respondent and entitled "Route Lease" was signed by petitioner and his parents on said date. Petitioner was then only 12 years of age. The agreement stated that respondent leased to petitioner a list of subscribers of the newspaper who lived on a specified newspaper route. It contained the following provisions:

"The Carrier agrees:

(1) He will sell and regularly and promptly deliver the Bergen Evening Record to all of said subscribers and such new subscribers on such route as he shall obtain, at the established rate therefor.

(2) He will not sell or deliver any other newspaper or printed matter of any kind to any person without the written consent of the Bergen Evening Record.

(3) He will do all in his power to promote and extend the circulation of the Bergen Evening Record.

(4) Before giving up the said paper route, he will give Bergen Evening Record two (2) weeks' notice of his intention to do so.

(5) He will not show or turn over the list of subscribers to any person or disclose the name or address of any subscriber for the Bergen Evening Record without first obtaining the consent of the Bergen Evening Record.

(6) He has not paid any money to any person for this list of subscribers and he will not sell it to any person or persons for any money or other thing of value.

(7) He will not collect in advance from any subscribers; should he do so, he shall become responsible for any such amount collected in advance.

(8) He will regularly and promptly pay, each week, for all copies of the Bergen Evening Record sent to him in accordance with his orders, at the established wholesale rate.

(9) He agrees that the granting of this lease to him does not constitute the territory covered by the above described route as exclusive terirtory [ sic ]; and that in the event he is unable to make delivery of the Bergen Evening Record due to illness, vacation, or otherwise, he shall provide a substitute to [ sic ] his expense.

(10) Bergen Evening Record may cancel and terminate this lease at any time without notice, and in such case, he agrees to turn over, forthwith, to the Bergen Evening Record or its authorized representative a complete list of the names and addresses of all subscribers to whom he has been delivering the Bergen Evening Record.

(11) He further agrees to keep a written list of all such persons with their street addresses in his possession at all times, and such written list shall be the ...


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