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White v. Atlantic City Press

Decided: December 19, 1973.

JOHN B. WHITE, PETITIONER-APPELLANT,
v.
ATLANTIC CITY PRESS, A/K/A PRESS PUBLISHING COMPANY, A DIVISION OF ABARTA CORP., RESPONDENT-RESPONDENT



For reversal -- Acting Chief Justice Jacobs, Justices Sullivan, Pashman and Clifford and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Pashman, J.

Pashman

[64 NJ Page 130] On the morning of April 13, 1971, petitioner John B. White, while driving his automobile to work, picked up two young hitchhikers. They returned his favor by committing acts of felonious assault and robbery upon him. Petitioner filed a workmen's compensation benefits claim pursuant to N.J.S.A. 34:15-7. Atlantic City Press, employer-respondent, denied compensability for three reasons. First, it contended that no employment relationship existed; second, that the going and coming rule precludes recovery should such relationship be found; and, third, that the picking up of a hitchhiker relieves an employer of liability even if the accident were otherwise compensable. The Judge of Compensation found for petitioner on the first two issues, but felt constrained to rule against him on the third, on the authority of Beh v. Breeze Corporation, 2 N.J. 279 (1949). He therefore dismissed the petition and the Appellate Division affirmed in an unreported per curiam opinion. We granted certification, 63 N.J. 497 (1973). We take this opportunity for a fresh look at the hitchhiker doctrine. We reverse.

Petitioner alleges that at the time of the accident, he had been working as a route delivery man, having begun that work in January 1971. His duties encompassed driving a few miles from his residence in Atlantic City to Pleasantville, picking up for delivery 200 of respondent's newspapers, and then delivering them. He would load the daily edition of respondent's papers in his car and drop them off individually by throwing a copy on a customer's front porch or lawn or inserting one in a post box, along a scattered route of 20 to 25 miles in rural Atlantic County. Each morning by 7:00 A.M., the route deliveryman's function would be completed.

Petitioner testified that on the eventful morning of April 13, 1971, he left his home around 5:00 A.M., his usual time, and while still in Atlantic City not too far from his own residence, he picked up two hitchhikers who wanted to be taken to a bus station. Petitioner added that he had never encountered or known of harmful incidents in all the times he picked up hitchhikers. The drive to the bus station necessitated a detour of several blocks from petitioner's customary route but as was evidenced, no appreciable time would have been lost since one could get to Pleasantville by several alternative express roads. While waiting at a red light, one of the hitchhikers pulled a knife and demanded petitioner's money. A fight ensued, and with White losing control, his automobile bounced against several parked cars. Petitioner was hospitalized with lacerations and stab wounds in the face, abdomen and hand, and the assailant was taken into police custody. Petitioner resumed his work a week later.

Respondent denied that it had employed petitioner as a route deliveryman at the time of the accident. Testimony elicited from two circulation managers indicated a nonexistence of any formal agreement with petitioner relative to delivery duties. Respondent acknowledged, however, that petitioner was authorized to make weekly collections and to verify the route, and that for this service, he would receive a 15% commission. It was respondent's understanding that

petitioner would take over the route in its entirety in the future, but as a precondition, he had to serve an apprenticeship. Hence, from January until June 1971, at which time a formal agreement was signed, petitioner had no formal status as an independent deliveryman. There were no records in respondent's home office showing that petitioner was delivering newspapers at all.

Respondent did not pay petitioner directly for deliveries. Instead, it paid $50 weekly to the person with whom it had originally contracted for the delivery, one La Compt, who had in fact turned over the job to White in February 1971 and endorsed all checks to him from that date forward. Respondent claims it was never notified of this transfer; but White testified he commenced the delivery at the request of circulation manager Attig who met him several days at the paper pickup point.

There was testimony that in addition to Attig, one of the other circulation managers, several of the office employees and most of the deliverymen were familiar with White's deliveries. The day following the accident, the Press in a news account reported the knifing incident and identified White as a Press employee. It thus appears that if White's testimony is credited, he had been employed in a de facto status at the time of the accident.

The judge of compensation determined that in the event petitioner should prevail on appeal, he would be entitled to hospital costs of $195 and permanent disability benefits of $1,100. These supplementary findings were made to obviate the need for remand in the event of reversal.

I

Respondent contends at the threshold that petitioner was not in its employ as a deliveryman at the time of the accident. And it urges that judgment be sustained on that basis, if no other. Contrary findings, however, were made below. On this record, we accept them.

The judge of compensation found generally there was an employment relationship. This could have been based upon acceptance of White's testimony that he and Attig agreed in January 1971 that he would perform the delivery service and that he did so thereafter. However, no such express finding of fact was made by the judge. Nevertheless, a proper finding of employment relationship could also have been based upon a determination that respondent knew at all material times that White was in fact making the deliveries and that it was of no legal consequence that payment was made indirectly through La Compt. The contract of employment may be express or implied. See Essbee Amusement Corp. v. Greenhaus, 114 N.J.L. 492, 495 (Sup. Ct. 1935); Del Peso v. H.A. Bar and Restaurant Co., 75 N.J. Super. 108, 117 (App. Div.), certif. den. 38 N.J. 309 (1962); Biger v. Erwin, 108 N.J. Super. 293 (Cty. Ct.), aff'd 57 N.J. 95 (1970); 99 C.J.S. Workmen's Compensation ยง 65, pp. 280-281 (1958). In this regard, the actual trial fact finding was that "respondent through its employees either knew or should have known that White was distributing Rt. 3901 regularly for some period of time prior to April 3, 1971."

Insofar as either of the factual hypotheses aforesaid may be viewed, as we here hold, as a proper legal foundation for the ultimate conclusion of employment relationship by the trial court, there was substantial credible evidence in the record in support thereof. Moreover, in our view, the same evidence which supports the express finding of the Judge aforementioned that respondent knew or should have known of the distribution by White also supports and justifies a finding of actual knowledge by respondent. In the interest of a just and expeditious conclusion ...


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