Andryishyn v. Ballinger

• Decision Date: 16 May 1960
• Docket Number: No. A--547,A--547
• Citation: 160 A.2d 867,61 N.J.Super. 386
• Parties: Michael ANDRYISHYN, Plaintiff-Respondent and Cross-Appellant, v. Odell BALLINGER, Defendant-Respondent, and Bayonne Block Co., Inc., Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 386

61 N.J.Super. 386

160 A.2d 867

Michael ANDRYISHYN, Plaintiff-Respondent and Cross-Appellant, v. Odell BALLINGER, Defendant-Respondent and Bayonne Block Co., Inc., Defendant-Appellant and Cross-Respondent.

No. A--547.

Superior Court of New Jersey Appellate Division.

Argued May 9, 1960.

Decided May 16, 1960.

Raymond Chasan, Jersey City, argued the cause for plaintiff-respondent and cross-appellant (Warren, Chasan & Leyner, Jersey City, attorneys; Lewis M. Holland and Joel A. Leyner, Jersey City, on the brief).

James P. Beggans, Jersey City, argued the cause for defendant-appellant and cross-respondent Bayonne Block Co., Inc. (Beggans & Keale, Jersey City, attorneys; Robert E. Tarleton, Jersey City, on the brief).

Edward M. Gurry, Newark, argued the cause for defendant-respondent Ballinger (Marley, Winkelried & Hillis, Newark, attorneys; Edward M. Gurry, of Gurry & Conlan, Newark, on the brief).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

On December 3, 1956 plaintiff Michael Andryishyn, while crossing 21st Street in Bayonne, was struck by a truck being driven by defendant Ballinger. He brought an action in the County Court to recover damages for personal injuries, naming as defendants not only Ballinger, but also his wife, owner of the truck, and Bayonne Block Co., Inc., alleged to be Ballinger's employer. The wife was let out of the case, and the jury returned a verdict of $23,000 against Ballinger and the company.

Thereafter the company moved for judgment notwithstanding the verdict, and for a new trial. The motion was denied, but the County Court judge found the verdict excessive and ordered that unless plaintiff consented to accept $15,000 the verdict would be set aside as to damages only. Plaintiff consented upon the condition that defendants pay the reduced judgment; otherwise he expressly reserved his objections to the legal and factual correctness and sufficiency of the order. Bayonne Block did not pay, but instead appealed. Plaintiff cross-appeals from the reduction of the verdict.

Plaintiff died intestate pending the appeal and, on motion, his general administratrix has been substituted in his place.

The basis of the main appeal is that the trial court erred in denying Bayonne Block's motion for involuntary dismissal, made at the close of plaintiff's case and renewed at the conclusion of the entire case, on the ground that plaintiff had failed to establish the relationship of master and servant between the company and Ballinger. The question is, simply, whether the proofs warranted submission of the issue to the jury. The company claims that the only inference deducible from the evidence is that Ballinger was an independent contractor, and that submission of the issue of the existence of a master-servant relationship was unwarranted. Our review of the record convinces us that the question was properly submitted to the jury and that its verdict, obviously based upon its conclusion that Ballinger was an employee of the company, finds reasonable support in the proofs.

Generally speaking, whether a person who performs services for another is a servant or an independent contractor depends upon the control which the employer exercises or retains the right to exercise over the manner in which the worker performs his services. 1 Restatement, Agency 2d, § 220(1), p. 485, and comment, pp. 486--489 (1958); Galler v. Slurzberg, 22 N.J.Super. 477, 487, 92 A.2d 89 (App.Div.1952); Ibid., 31 N.J.Super. 314, 324, 106 A.2d 312 (App.Div.1954), affirmed per curiam, 18 N.J. 466, 114 A.2d 260 (1955); 2 C.J.S. Agency § 2(d), pp. 1027--1028 (1936) and 56 C.J.S. Master and Servant § 2(d), pp. 32--37 (1948). The relationship of master and servant is not capable of exact definition. 1 Restatement, Agency 2d, § 220(2), pp. 485--486, lists various factors that may be considered in determining whether one who acts for another is a servant or an independent contractor. Control is only one of them, albeit usually considered the principal one. It has been said that when the manner of performing the service is beyond another's control because of its nature, absence of direct control over such details may become insignificant in the overall view of the facts and the circumstances to be taken into account in determining the relationship. DeMonaco v. Renton, 18 N.J. 352, 357, 113 A.2d 782 (1955) (newsboy), quoting from Hearst Publications v. United States, 70 F.Supp. 666 (D.C.Cal.1946), affirmed 168 F.2d 751 (9 Cir.1947) ; Hannigan v. Goldfarb, 53 N.J.Super. 190, 196, 147 A.2d 56 (App.Div.1958) (taxicab driver). Whether Ballinger was, in fact, an employee of Bayonne Block Co. must be determined in the light of the totality of the facts surrounding the relationship.

The company points to the following facts, among others, to establish that Ballinger was an independent contractor: the only hauling he did was to carry bags of cement from the railroad siding in Bayonne to the company's warehouse, for which he received 6cents a bag; he selected the route he decided how the bags were to be loaded, and unloaded the truck alone; he received no instructions whatever; he hauled only when a railroad car of cement arrived at the railroad siding; he performed no other services for the company; he was paid by check, without deduction for social security, unemployment or withholding taxes; and he paid for all gasoline, oil and the maintenance of his truck.

Plaintiff, on the other hand, directs attention to other factors brought out in the testimony which indicate that he was an employee of the company. Among them we note that he had been hauling cement for Bayonne Block since 1952, four years prior to the accident; he worked for no one else; one of the company employees had originally shown him how to perform his task; the work he performed was a regular part of Bayonne Block's business; he considered Churchio, the company president, his supervisor; when the truck was not in use he kept it in the company yard; he had no special skill, and the work he did required none; he relied on the company to keep a record of what was due him and to pay him every week, along with its order employees; he continued with the company after the accident and through the time of trial, more than two years later. Many of these are factors which, according to § 220(2) of the Restatement, op. cit., pp. 485--486, should be considered in determining the existence of a master-servant relationship. And see the comments to subsection 2, pp. 489--492.

Bayonne Block relies strongly on Giroud v. Stryker Transportation Co., 104 N.J.L. 424, 140 A. 305 (E. & A.1927), described as presenting 'far more compelling circumstances than are presented herein.' There is at least one significant distinguishing feature between that case and this. In Giroud the driver had been hired by defendant to haul gravel on one particular job only. In the present case Ballinger had been hauling cement for defendant company for some four years. See 1 Restatement, Agency 2d, § 220(2)(f), and comment (j), pp. 485, 490. Other cases cited by this defendant among them Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 96 A.2d 531 (1953); Courtinard v. Gray Burial, etc., Co., 98 N.J.L. 493, 121 A. 145 (E. & A.1923); Lacombe v. Cudahy Packing Co., 103 N.J.L. 651, 137 A. 538 (E. & A.1927); Johnson v. American Oil Co., 110 N.J.L. 456, 166 A. 135 (E. & A.1933), are readily distinguishable.

Plaintiff does not argue that Ballinger was a servant of Bayonne Block as a matter of law, but merely that the proofs presented a jury question on that issue. We agree. See 1 Restatement, Agency, § 220, comment on subsection 1, par. c, p. 486 (1958); Roberts v. Geo. M. Brewster & Son, Inc., 13...