Bowers v. American Bridge Co., A--512

• Decision Date: 04 December 1956
• Docket Number: No. A--512,A--512
• Citation: 127 A.2d 580,43 N.J.Super. 48
• Parties: Robert BOWERS, Petitioner-Appellant, v. AMERICAN BRIDGE CO., Respondent-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 48

43 N.J.Super. 48

127 A.2d 580

Robert BOWERS, Petitioner-Appellant, v. AMERICAN BRIDGE CO., Respondent-Respondent.

No. A--512.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 22, 1956.

Decided Dec. 4, 1956.

Harry Lane, Jr., Red Bank, argued the cause for petitioner-appellant.

Burtis W. Horner, Newark, argued the cause for respondent-respondent. (Stryker, Tams & Horner, Newark, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

In this workmen's compensation case the principal problems are two: (1) the place of contract and (2) the effect in New Jersey of an earlier Pennsylvania compensation award as Res adjudicata within the full faith and credit clause of the United States Constitution, Art. IV, Sec. 1. The petitioner sustained two accidental injuries while at work for respondent at Morrisville, Pa. He recovered awards for temporary and permanent disability on account of each before the Division of Workmen's Compensation but these were reversed by the Mercer County Court on the finding by that tribunal that the agreement of employment was made in Pennsylvania, not New Jersey.

I.

Petitioner testified at the hearing in the Division that about July 10, 1951, while employed as an ironworker on the New Jersey Turnpike construction and living in a house trailer in Camden (he moves about in his trailer from job to job), he received a call from the Iron Workers Union Local 68 in Trenton to attend at its office there is reference to employment; that he went there about 8:00 A.M. one day and met one 'Sailor' Davis, assistant business agent of the union, who informed him that there was work for him with the respondent at Morrisville, Pa., as member of a five-man crew to operate a rig for unloading steel; that he 'knew * * * at the hall at Trenton' what wage he was to receive; that he and the other members of the assembled crew, all of whom, with one exception, he was able to name, left for Morrisville at 8:30 A.M. and arrived on the job at 9:00 A.M.; and that he went to work at once, being paid for a full eight-hour day although regular working hours were 8:00 A.M. to 4:30 P.M. with half an hour off for lunch. When he arrived at the job, so he said, he was given a temporary badge and safety hat and later in the day, while working, he signed a payroll card. He gave a Langhorne, Pa. address, having been told there was a trailer camp there at which he could stay. He was living at the camp when he sustained the injuries here involved.

Petitioner testified that he has been an ironworker eleven years and that among his prior employments were a number of jobs with the present respondent. He said that the regular procedure for the hiring of ironworkers was through the contractor calling the local union business agent and that union members seeking employment are required by the union to apply at the union hall and are forbidden to apply directly to the employer. This is not controverted by respondent.

On August 30, 1952 petitioner was struck in the chest by a swinging load of steel and his consequent injuries kept him out of work until October 20, 1952. Toward the end of November 1952 he sustained an injury to his left leg when he stepped into a hole. It was for these mishaps that the awards here in question were allowed.

Respondent offered proofs designed to establish that its hiring of the petitioner took place when he arrived on the job at Morrisville, not before. The question was crucial, since, in these circumstances, the making of a contract of employment in New Jersey was essential to found jurisdiction in the New Jersey Division of Workmen's Compensation. Gotkin v. Weinberg, 2 N.J. 305, 66 A.2d 438 (1949). Respondent produced its safety engineer, McFarland, and its assistant to the project manager, Maxwell, to testify concerning the procedure for hiring men at Morrisville as of July 1951. Neither of them was specifically familiar with the hiring of petitioner. The purport of this proof was that the nine superintendents on the project would congregate early each morning in company with the union stewards and decide how many additional men were needed that day; that the stewards were advised accordingly and required to obtain the men through the business agent of the union; that the union (Local No. 68 in Trenton) set up a hiring hall in Morrisville to handle employment for this project (Fairless Works of United States Steel Corporation) because of its size and that it was there that workers were recruited for the job by the stewards. Superintendent Grimes testified that the stewards were authorized 'to bring in what (workers) we required.'

The most significant testimony on this subject was given by Henry Gill, union steward at the time of petitioner's hiring and the only one of respondent's witnesses who remembered Bowers particularly. He testified:

'Q. Do you recall seeing Mr. Bowers in 1951, in July, or while you were engaged as a steward? A. Yes.

'Q. Will you describe the way you met Mr. Bowers and what you did after you saw him? A. The only way I could describe that is, I had him in my steward's book. I know he was there and I collected assessments off him.

'Q. Did you bring Mr. Bowers through the gate? A. That's right.

'Q. Did you examine his book? A. Not me alone. The business agent examined the books. I'm only the steward. I bring them in.'

On cross-examination Gill testified that after serving as a steward he 'then became a regular employee of' the respondent and has been with it ever since. He also testified, concerning the men he brought through 'the gate,' that 'the business agent had arranged for them to be there'; further:

'Q. They came from Local 68, didn't they? A. Come from all locals.

'Q. Some from Local 68, some from other locals? A. That's right.

'Q. Local 68 is in Trenton, isn't it? A. That's right.

'Q. Saylor Davis at that time was working as--handling the business agent duties at Trenton? A. Not at that time, Trenton, yes. Hanford was the business secretary; he's the recording secretary. * * *

'Q. When men were needed, a call would be made to Saylor Davis to send over the number of men that would be needed. A. All the Trenton men had the preference. He's call in for the Trenton men first.'

The Trenton men had preference in hiring. The union dues collected from 'men that came from Trenton would be paid to the Trenton local.' Assessments of dues collected by Gill from petitioner on the job were paid to the Trenton Local No. 68.

It will be discerned from the synthesis of the respondent's proofs outlined above that although it produced all of its personnel who apparently could have had anything to do with the hiring of workers for the Morrisville project in July 1951, none of them were asked directly whether any communications were had on its behalf with Mr. Davis or anyone else at the Trenton office of Local No. 68 for workers at or about the time petitioner claims to have been recruited for its labor pool through that medium. Notwithstanding certain weaknesses as to credibility on the part of the petitioner in respect to details of events after arriving on the job, his testimony as to how he happened to go to work for respondent stands unrefuted by defense proofs, and the admissions of Gill give it circumstantial sustenance. The details established concerning respondent's general procedure in hiring at Morrisville do not refute the truth of petitioner's account of his own particular hiring. Indeed the finding by the deputy director in accord therewith was not discarded by the County Court. The reversal there was solely on the grounds that 'petitioner has failed to prove the agency of Sailor Davis' and that 'respondent has established that the hiring was not perfected until the conclusion of the administrative details in Pennsylvania.' These are legal rather than factual conclusions. We are entirely satisfied that on the record before us petitioner's story as to what transpired before he arrived at Morrisville accords with the probabilities and should be accepted as fact. Jochim v. Montrose Chemical Co., 3 N.J. 5, 68 A.2d 628 (1949). We consequently proceed to a consideration of the soundness of the conclusions of the County Court.

The adversion by the County Court to a failure of proof of the 'agency of Sailor Davis' overlooks the fact that the pertinent question in this regard is the agency of the union local to supply the respondent with workers. As to this the testimony of both the petitioner and steward Gill fully establishes the special agency relationship between the union local and the respondent. The powers of an agent may be disclosed by proof of his engagement in previous transactions of a similar nature with others with the knowledge, permission and acquiescence or recognition of his principal. Gabriel v. Auf Der Heide-Aragona, Inc., 14 N.J.Super. 558, 569, 82 A.2d 644 (App.Div.1951); Smith v. Delaware & Atlantic Telegraph & Telephone Co., 64 N.J.Eq. 770, 772, 53 A. 818 (E. & A.1902). Here the respondent had, as is apparently customary in the industry, made the union local its agent to recruit ironworkers for Morrisville. There is no dispute that Mr. Davis was acting business agent of Local No. 68 in Trenton at the time petitioner was engaged. Whether or not respondent in other cases dealt with other officials of the same union, there is nothing shown to derogate from Davis' authority as an appropriate union official for that purpose to execute on its behalf its agency function to supply respondent with the specific crew inclusive of petitioner which was assembled in Trenton and proceeded forthwith to go to work for it at Morrisville.

Agency apart, the acceptance by petitioner in Trenton of the employment opportunity offered him so as to fix the Situs of contract in New Jersey is adequately established by his action in signifying his assent to the proposal at the union hall in...