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Biger v. Erwin

Decided: January 16, 1970.


McGann, J.c.c.


This is a workmen's compensation appeal. The facts are not in dispute. The legal consequences of those facts are.

Pierre Biger was a jockey. He died on July 10, 1967 as a result of injuries received while riding in a steeplechase race at Monmouth Park. The horse on which he was riding at the time, "Cosmic Bull," was owned by respondent Dr. E. C. Erwin and trained by respondent E. B. Stewart. A dependency claim petition was filed on behalf of decedent's widow and infant son against Erwin and Stewart. A separate petition was filed against the owner of the race track, the Monmouth Park Jockey Club, and consolidated for hearing purposes.

The issues presented are these: (1) Was Biger an employee or an independent contractor? (2) If he was an employee, was the employment "casual" (and not covered by workmen's compensation)? (3) If he was an employee, who was his employer? The compensation judge found that Biger was an employee, not casual in nature, and awarded benefits against both Erwin and Stewart as employers. He found no employment relationship with Monmouth Park Jockey Club.

Dr. Erwin is a physician and surgeon living and practicing in Allentown, Pennsylvania. He owned a number of race horses, among them "Cosmic Bull." All of these horses

were trained by Stewart, whom Erwin had first met in 1965. There was a verbal agreement between Erwin and Stewart whereby Stewart would train, feed and handle the horses for $17 a day each plus 10% of any of their winnings. I find that once the horse was turned over to Stewart, he had complete charge of it. Dr. Erwin relied completely on his judgment. Stewart could and did move the horses from track to track as the season progressed; he decided when to enter the horses in races; his was the selection of the jockey who would ride the horse. As owner, Dr. Erwin had the right to countermand Stewart's decisions and to make judgments affecting the horse and selection of its jockey, but in fact he never did so. Erwin would pay the jockey from an owner's trust account which he maintained with Monmouth Park Jockey Club in accordance with the rules of the New Jersey Racing Commission. Erwin did not have any particular jockey under contract to ride for him. When the services of a jockey were required, Stewart would engage a "pool" or "freelance" jockey. In addition to training Erwin's horses, Stewart also trained for other owners as well as horses of his own. He never considered the jockeys to be his employees unless they were riding horses owned by him.

Both Erwin, as owner, and Stewart, as trainer, were required by the rules of the Racing Commission to maintain workmen's compensation insurance coverage for their employees. Both had such coverage at the time of this incident.

A few days before July 10, 1967, and while Stewart and "Cosmic Bull" were at Belmont Park in New York, Stewart decided to enter the horse in a steeplechase race to be held at Monmouth Park as the third race on July 10. He spoke with Bobby McDonald, a "pool" rider then at Belmont, and McDonald agreed to ride the horse. Stewart made the entry of "Cosmic Bull" in the race by telephone and listed McDonald as the rider. All of this was in accordance with rule 601 of the Commission which provides:

A licensed Trainer may represent the owner in the matter of entries, declarations, and the employment of jockeys.

On the morning of the race McDonald came to Stewart, told him he had a chance to ride a better horse that day, and asked to be excused from his agreement to ride "Cosmic Bull." He told Stewart that he already had another jockey, Biger, "lined up" to ride in his place. Stewart had never met Biger, but agreed to the change. Stewart first met Biger that day in the paddock just before the race and after the horse had been saddled. Biger wore the colors of the owner, Dr. Erwin. Stewart gave Biger some brief instructions as to the manner in which the horse should be raced. During the course of the race Biger received the injuries which led to his death.

Monmouth Park is one of the three licensed "flat" racing tracks in New Jersey. It is owned and operated by the Monmouth Park Jockey Club and is subject to all the rules and regulations of the New Jersey State Racing Commission. It does not directly employ any jockeys. It does maintain owners' trust accounts and pays jockeys on behalf of the owners from those accounts. It also provides locker room, health and recreational facilities for jockeys. Under the rules of the Commission, it does have the right to prohibit certain jockeys from riding at the track if it is felt that their presence is not in the best ...

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