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Tofani v. Lo Biondo Brothers Motor Express Inc.

Decided: April 22, 1964.

IRMA M. TOFANI, PETITIONER-RESPONDENT,
v.
LO BIONDO BROTHERS MOTOR EXPRESS, INC., RESPONDENT-APPELLANT



Conford, Freund and Sullivan.

Per Curiam

The following opinion was rendered for the Middlesex County Court in this matter.

"This appeal brings up for de novo review the record in the Division of Workmen's Compensation. The judge of compensation dismissed the petition. Factually, the case is one of novel impression in New Jersey to the extent that decedent owned a tractor, leased it to respondent and drove it while hauling a trailer owned by respondent and in the course of the operation of respondent's business.

The sole issue is whether decedent was an employee. The Division held he was an independent contractor stating briefly that 'the relationship of master and servant exists whenever the employer retains the right to direct the manner in which the business or work shall be done as well as the results to be accomplished' and concluded 'the testimony -- is clear that decedent was not an employee -- but in fact was an independent contractor.' (Emphasis supplied)

I find the essential facts and legitimate inferences reasonably to be drawn to be as follows:

Decedent owned a tractor and did trucking for a living. Respondent's corporation was a freight carrier with equipment and approximately 50 employee-drivers on its payroll paid by the hour. In addition, respondent's business warranted leasing of other equipment such as decedent's. A lease agreement dated March 31, 1960, expiring June 30, 1960 was signed by decedent and respondent. It provided for:

'1. Leasing the "Equipment to the Carrier" to be used exclusively in its business * * * commencing when possession is taken "as shown herein."

2. Lessor to maintain and keep equipment in good repair and provide gas, oil, tires and other necessary equipment and furnish a competent and qualified driver and helper(s) if necessary and compensate such driver and helper(s), such compensation to * * *

include all wages, taxes, insurance including social security, workmen's compensation and withholding taxes.

3. During the period of this lease exclusive possession, control and use of equipment shall be in the carrier and the carrier assumes * * * full responsibility in respect of said equipment to the public, the shippers and Interstate Commerce Commission.

4. Upon expiration * * * possession of the equipment will promptly be restored to lessor in * * * condition as when received * * * ordinary wear and tear excepted; provided * * * carrier * * * not liable for any loss or damage or destruction while * * * operated by or in care and control of the driver and helper(s) furnished with the equipment.

5. Carrier will pay * * * and lessor agrees to accept as compensation for the equipment and for the services of the driver or helper(s) the compensation shown above.'

The 'schedule of compensation' was not affixed. The lease provided 'possession taken on 3-31-60, 6:00 A.M.' The lease was entitled 'Equipment Lease, Receipt and Inspection Report.' The 'receipt' indicating delivery of possession and the 'inspection report' indicating the equipment not defective as certified by carrier after careful inspection.

Respondent was responsible for the equipment's being safe for operation and decedent was 'not supposed to' haul for anyone else during the period and trips would originate from respondent's terminal or other points of origin directed by respondent and the shippers loaded the truck. Respondent furnished its trailer, hauled by decedent's tractor as leased and decedent met with an accident on New Jersey Turnpike in East Brunswick Township while returning unloaded from a trip for respondent to Connecticut on May 27, 1960 and died on June 2, 1960. In some areas a union driver was required and respondent arranged for one in advance who met decedent on arrival at such point. Decedent was 'given papers for a certain load and instructed to deliver to a certain city or town.' Payments were made weekly to decedent by check in various amounts and were based on tonnage hauled and distance. Decedent was to call respondent's office on delivery to learn if another load was to be picked up and brought back and if there was none he could solicit a return load himself for which respondent did the billing , paid decedent and deducted a charge for the use of its trailer. The records of the Tofani arrangement were submitted to the I.C.C. Decedent could not refuse any loads. He had no discretion but had to wait his turn for a load. Respondent 'filed insurance coverage' and procured identification plates in states where required such as Connecticut but would charge the cost to decedent. No social security, withholding tax or unemployment compensation was deducted. Respondent being a 'regulated motor carrier' paid mileage taxes in states where required. Decedent kept a log required of all motor carriers by the I.C.C. which controlled the number of hours he drove 'to comply with safety rules of the I.C.C.'

Another 'lease' for 30 days between the parties had expired sometime prior to the present one.

The extent of respondent's control over the details of decedent's work is in the main left to inference. Respondent's general manager testified as a witness (hostile) for petitioner that 'we do not have full and complete control because this is what you call an "owner-operator" and in that case the owner has control as far as * * * it's our responsibility to see that equipment is safe for a safe operator.' When an owner-operator leaves on a trip, then he is on his own, in other words, until he gets back from the trip. He is not supposed to 'haul for anybody else during the period.' The equipment was continually used in connection with respondent's business 'insofar as there was work available.' If decedent needed help, and couldn't obtain it, respondent would hire the help and deduct cost of same from decedent's check. If union help was required in an area, respondent arranged for putting a union driver on the truck and the cost was again deducted; and routes would not be prescribed by respondent. The general manager further stated that respondent could not put another driver on the equipment; that on an occasion decedent was put on the regular payroll as a driver of its own equipment when its driver was sick or on vacation. Decedent was paid by the tonnage and distance, e.g. $5.50 per ton to Scranton and $9.50 per ton to Buffalo. Respondent reserved the right to fire if decedent could not perform. Respondent had I.C.C. rights for general commodities in certain areas and specific commodities between other points. Decedent had no choice as to what he would carry or where he would deliver it. On cross-examination by respondent's counsel, Mr. LoBiondo, the general manager, stated that decedent was obliged to supply a driver and helper and if union regulations required it, decedent supplied such driver and it was charged against him. Respondent would deduct from decedent's checks any money advanced and for gasoline and oil it furnished, and money advanced for help at his request and for identification tags in Connecticut and other states. Prior to this arrangement with respondent, decedent operated for other trucking lines. Decedent kept a daily log required by I.C.C. regulations for safety measures to assure he drove no more than 10 hours in any 24. Decedent was paid:

$60.50 on March 11

407.02 on March 18

167.02 on March 31

156.24 on April 8

255.46 on April 14

161.43 on April 22

267.14 on April 29

297.34 on May 6

324.39 on May 13

512.48 on May 20

487.26 on May 27 as net payments

The check-off list on the back of the lease was required by I.C.C. safety regulations and respondent checked the equipment at its garage and if it passed, a lease was drawn and the truck could be sent out.

The Teamsters Union decided if a helper or 'city man' was to be put on the truck.

On Re-cross it was stated that no social security or workmen's compensation deductions were made (except on the one trip when decedent drove respondent's equipment) and no income tax was withheld.

The lease agreement, the log, letter dated June 13, 1960 from respondent to Mrs. Irene Tofani (enclosing a check and advising her that the matter was being investigated by the compensation insurance company), death certificate, birth records of the three surviving children and the medical ...


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