Blessing v. T. Shriver & Co.

• Decision Date: 10 April 1967
• Docket Number: No. A--736,A--736
• Citation: 94 N.J.Super. 426,228 A.2d 711
• Parties: Emil BLESSING, Plaintiff-Respondent, v. T. SHRIVER AND CO., Inc., a New Jersey Corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 426

94 N.J.Super. 426

228 A.2d 711

Emil BLESSING, Plaintiff-Respondent, v. T. SHRIVER AND CO., Inc., a New Jersey Corporation,

Defendant-Appellant.

No. A--736.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 24, 1966.

Decided April 10, 1967.

James D. Carton, III, Asbury Park, for appellant (Carton, Nary, Witt & Arvanitis, Asbury Park, attorneys).

Philip G. Auerbach, Red Bank, for respondent (Louis M. Drazin, Red Bank, attorney).

Before Judges GAULKIN, LEWIS and LABRECQUE.

The opinion of the court was delivered by

LEWIS, J.A.D.

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 four 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.

I

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, 70 A.2d 882 (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 workmen's compensation only if:

(a) The employee has made a contract of hire, express or implied, with the special employer;

(b) The work being done is essentially that of the special employer; and

(c) The special employer has the right to control the details of the work.

When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation.' 1A Larson, Workmen's Compensation (1966), § 48.00, p. 710.

Other authorities add two more co-equal factors, namely, whether the special employer (1) pays the lent employee's wages, and (2) has the power to hire, discharge or recall the employee. 3 Schneider, Workmen's Compensation (3d ed.1943), § 782(c), pp. 19--21; 99 C.J.S. Workmen's Compensation § 47(c)(3, 4), pp. 249--250; Thomas v. Hycon, Inc., 244 F.Supp. 151, 155--156 (D.D.C.1965). Note generally, Restatement Agency 2d, § 227 (1958).

There is no uniform agreement as to a predominant factor. ¹ The sheer weight of authority is undoubtedly on the side of 'control.' See Comment, 26 Cal.L.Rev. 370, 371 (1938). Larson places the most importance on contract of hire or 'consent.' Larson, op.cit., § 48.10, p. 711. The federal authorities, following the landmark decision in Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), are uniform that the 'ultimate test is: Whose is the work being done? * * * In determining whose work is being done, the question of the power to control the work is of great importance * * *.' Jones v. George F. Getty Oil Co., 92 F.2d 255, 263 (10 Cir. 1937), certiorari denied sub nom. Associated Indemnity Corporation v. George F. Getty Oil Co., 303 U.S. 644, 58 S.Ct. 644, 82 L.Ed. 1106 (1938). Accord, Shenker v. Baltimore and Ohio R. Co., 374 U.S. 1, 5--6, 83 S.Ct. 1667, 10 L.Ed.2d 709, 713--714 (1963). See generally, Annotation, 'Workmen's Compensation: Liability of General or Special Employer for Compensation to Injured Employee,' 152 A.L.R. 816, 821 (1944).

In Rongo v. R. Waddington & Sons, 87 N.J.L. 395, 94 A. 408 (Sup.Ct.1915), the court held that a servant was entitled to look to his general master for compensation, rather than the special employer, 'where a servant employed by a master directly is required as part of his contract of employment to work for some other person for a compensation payable not to the servant, but to the immediate master.' (87 N.J.L., at p. 398, 94 A., at p. 409) Accord, Furey v. Thompson-Starrett Co., 1 N.J.Misc. 176 (Sup.Ct.1923). Various indicia were set forth in Toner v. International, etc., Atlantic City, 113 N.J.L. 29, 172 A. 389 (E. & A.1934), where the court spoke of control as to how the work should be done, the power to discharge and the payment of salary. The element of Consent was elevated to a predominant position in Miller v. National Chair Co., 19 N.J.Misc. 275, 278, 18 A.2d 847, 849 (Dept.Labor), affirmed 127 N.J.L. 414, 422--423, 22 A.2d 804 (Sup.Ct.1941), affirmed o.b. 129 N.J.L. 98, 28 A.2d 125 (E. & A.1942), but in Younkers v. Ocean County, 130 N.J.L. 607, 609, 33 A.2d 898, 899 (E. & A.1943), the court declared, 'The question of whether the general employer, or the specific employer is the master turns upon the decision as to who has the right to exercise Control over the servant.' (Emphasis supplied)

Subsequently, our courts turned away from placing primary emphasis on control and stressed the question of whose interest the employee was furthering at the time of the accident. See Devone v. Newark Tidewater Terminal, Inc., 14 N.J.Super. 401, 406--419, 82 A.2d 425 (App.Div.1951); Viggiano v. Reppenhagen, 55 N.J.Super. 114, 118--121, 150 A.2d 40 (App.Div.1958); and note the several factors (a contract of employment, power to hire, control, direction of work, payment of wages, and power of dismissal) mentioned in Runk v. Rickenbacher Transportation Co., 31 N.J.Super. 350, 354--355, 106 A.2d 554 (App.Div.1954).

Recent decisions concerned with the problem of whether an individual was an employee or an independent contractor lay great stress upon the question of whose work the employee was doing. In Hannigan v. Goldfarb, 53 N.J.Super. 190, 147 A.2d 56 (App.Div.1958), this court gave extensive consideration to the control test. But, it was also indicated that control may not be the key test; it was recognized that in certain situations the most relevant element may well be the "relative nature of the work' test.' (53 N.J.Super., at pp. 204--206, 147 A.2d, at p. 65)

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