Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.
[94 NJSuper Page 427] Plaintiff Emil Blessing, an employee of the Nielson Detective Agency from whom he had recovered workmen's compensation benefits for an injury, commenced this tort action against defendant T. Shriver and
Co., Inc., alleging that his injury had been brought about by its negligence. The jury returned a verdict in favor of plaintiff and the defendant appeals from the judgment entered thereon.
Plaintiff had been employed by Nielson as a "guard" for about two years prior to the mishap. His services were not performed at any "permanent" location; he was transferred from one locale to another as directed by his employer. Nielson paid his salary, provided an agency uniform, designated where he should work, and instructed him as to the particulars of each job. He was responsible directly to the Nielson supervisor in charge of the guards at the job site, through whom he received work instructions and any complaints or reprimands. After working about nine months as a guard for a Jersey City company whose name he could not remember, plaintiff was transferred by Nielson to defendant's foundry at Harrison, where he worked for nearly three months before the accident. There his immediate supervisor was Lieutenant Kearney, a Nielson employee.
Normally, plaintiff's daily working hours at the Shriver plant were from 3 to 11 P.M., and his duties consisted of tending the main gate until 5 P.M. and then making eight rounds of the premises for the purpose of checking for fires, thefts and other hazards; the work schedule of the guards was arranged between Nielson and Shriver. Plaintiff was required to activate various time clocks or control devices which relayed signals to a receiving station at the Nielson headquarters in Newark, indicating security supervision at the plant. All unusual occurrences were required to be reported in the Shriver company's log book.
Metal castings were manufactured at the Shriver plant and the floor of the foundry building was always covered with sand. Near the foreman's office in the foundry was a signal clock, identified as number 3 A.D.T. It was located on the wall and below it there was a ledge which stood eight inches above the floor level and extended approximately two feet from the wall. In the immediate area was a water cooler
which had been leaking for about two weeks prior to the accident. According to Blessing's testimony, "it was leaking from the bottom and the water ran over on this ledge and down into the sand and the water would form on the ground there where we walked to punch the clock." He further stated that he reported this condition to his supervisor and the foreman of the foundry; it was not, however, noted in the log book.
On August 2, 1964 at 2:30 P.M. (the early hour was the result of a special Sunday schedule), plaintiff, on his seventh round, approached clock No. 3, placed his left foot on the ledge to reach the signal device on the wall, and when his right foot "slid" on the wet sand, he fell over against a stack of castings, injuring his right elbow.
The jurors found specifically that defendant was negligent, plaintiff was not guilty of contributory negligence, and that plaintiff was not an employee of the defendant. The employment issue was submitted to the jury at the insistence of defense counsel in opposition of plaintiff's motion that it be resolved by the court as a matter of law. The verdict in plaintiff's favor was in the amount of $9,375.
The primary question raised on appeal is whether defendant was a special employer of Blessing and thus immune from common law tort liability by virtue of our Workmen's Compensation Act. The trial court's charge to the jury and the sufficiency of the evidence to support a finding of negligence against the defendant are also challenged.
Since there is no reported decision in this State treating of the Nielson-type agency as related to the problem here involved, a review of the pertinent authorities is in order.
There is no question that in this jurisdiction an employee, for the purposes of workmen's compensation, may have two employers, both of whom may be liable to him in compensation, and a recovery against one bars the employee
from maintaining a common law tort action against either for the same injury. Wood v. Market-Arlington Co., Inc., 15 N.J. Misc. 272, 274, 190 A. 785, 786 (Dept. Labor 1937); Scott v. Public Service Interstate Transp. Co., 6 N.J. Super. 226, 229 (App. Div. 1950). Whether the common law action is precluded is thus dependent upon a determination that the borrower of an employee is, in fact, a special employer. Professor Larson, in discussing "Lent Employees and Dual Employment," lays down a three-pronged test in order to establish employment within the terms of the act:
"When a general employer lends an employee to a special employer, the special employer becomes liable for ...