Buchner v. Bergen Evening Record

• Decision Date: 07 November 1963
• Docket Number: No. A--201,A--201
• Citation: 195 A.2d 22,81 N.J.Super. 121
• Parties: Russell BUCHNER etc., Petitioner-Respondent, v. BERGEN EVENING RECORD, Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 121

81 N.J.Super. 121

195 A.2d 22

Russell BUCHNER etc., Petitioner-Respondent, v. BERGEN EVENING RECORD, Respondent-Appellant.

No. A--201.

Superior Court of New Jersey Appellate Division.

Argued Sept. 30, 1963.

Decided Nov. 7, 1963.

Horace Banta, Hackensack, for appellant (Winne & Banta, Hackensack, attorneys; Howard E. Corbett, Hackensack, on the brief).

Roger W. Breslin, Hackensack, for respondent (Breslin & Breslin, Hackensack, attorneys; Roger W. Breslin, Hackensack, of counsel).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

COLLESTER, J.A.D.

Respondent Bergen Evening Record (Record) appeals from a judgment of the County Court affirming an award by the Division of Workmen's Compensation in favor of petitioner Russell Buchner, a newspaper delivery boy, who was injured on February 6, 1958 when struck by an automobile while delivering copies of the Bergen Evening Record to subscribers thereof. Since petitioner was a minor under 18 years of age and had not obtained a working permit prior to his engagement by Record, a double indemnity award was granted pursuant to N.J.S.A. 34:15--10.

Both the Division and the County Court, on appeal, determined that the relationship of employer-employee existed. The happening of the accident, that it arose out of and during the course of the delivery of the newspapers, the Quantum of the award, and other incidental requirements for compensability are not in dispute. Respondent argues only that petitioner was not its employee at the time of the accident, but rather was an independent contractor to whom it owed no responsibility under the Workmen's Compensation Act.

Respondent publishes a daily newspaper which has wide circulation in Bergen County. Petitioner, who was only 14 years old at the time of the accident, had been asked by a 'district adviser' of respondent to take over an established newspaper delivery route sometime prior to January 14, 1957. Upon his assent, a written agreement prepared by respondent and entitled 'Route Lease' was signed by petitioner and his parents on said date. Petitioner was then only 12 years of age. The agreement stated that respondent leased to petitioner a list of subscribers of the newspaper who lived on a specified newspaper route. It contained the following provisions:

'The Carrier agrees:

(1) He will sell and regularly and promptly deliver the Bergen Evening Record to all of said subscribers and such new subscribers on such route as he shall obtain, at the established rate therefor.

(2) He will not sell or deliver any other newspaper or printed matter of any kind to any person without the written consent of the Bergen Evening Record.

(3) He will do all in his power to promote and extend the circulation of the Bergen Evening Record.

(4) Before giving up the said paper route, he will give Bergen Evening Record two (2) weeks' notice of his intention to do so.

(5) He will not show or turn over the list of subscribers to any person or disclose the name or address of any subscriber for the Bergen Evening Record without first obtaining the consent of the Bergen Evening Record.

(6) He has not paid any money to any person for this list of subscribers and he will not sell it to any person or persons for any money or other thing of value.

(7) He will not collect in advance from any subscribers; should he do so, he shall become responsible for any such amount collected in advance.

(8) He will regularly and promptly pay, each week, for all copies of the Bergen Evening Record sent to him in accordance with his orders, at the established wholesale rate.

(9) He agrees that the granting of this lease to him does not constitute the territory covered by the above described route as exclusive territory (sic); and that in the event he is unable to make delivery of the Bergen Evening Record due to illness, vacation, or otherwise, he shall provide a substitute to (sic) his expense.

(10) Bergen Evening Record may cancel and terminate this lease at any time without notice, and in such case, he agrees to turn over, forthwith, to the Bergen Evening Record or its authorized representative a complete list of the names and addresses of all subscribers to whom he has been delivering the Bergen Evening Record.

(11) He further agrees to keep a written list of all such persons with their street addresses in his possession at all times, and such written list shall be the sole property of the Bergen Evening Record.'

It further contained a statement signed by petitioner's parents wherein they represented they had explained to petitioner that he was to buy the newspapers at the wholesale rate and sell them at the regular weekly rate instead of delivering the newspapers at a fixed salary; that he would be responsible for all credit and collection losses from the subscribers; and that his earnings would be the net profit between what he paid for the newspapers and the sum he collected for them.

The list of subscribers was furnished to petitioner by the district adviser who showed him the route. The exact number of newspapers required for the route was delivered daily by the adviser, whereupon petitioner would make his deliveries on his bicycle. At the end of the week petitioner would collect the retail price for the papers from the subscribers and pay over the wholesale price therefor to the adviser. The net difference retained by the boy as his 'earnings' was approximately $4.50 to $5 per week.

Respondent contends that, by virtue of the lease agreement and the above facts, the boy was an independent contractor and not its employee. It urges that the proofs do not meet the test of the master and servant relationship since they lack the essential element of Control as set forth in Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 96 A.2d 531 (1953):

'The relationship of master and servant exists 'whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or in other words, not only what shall be done, but how it shall be done." (12 N.J. at p. 264, 96 A.2d at p. 533; citing Cappadonna v. Passaic Motors, Inc., 136 N.J.L. 299, 55 A.2d 462 (Sup.Ct.1947)).

Respondent asserts it did not retain the right to direct the manner in which petitioner was to distribute the newspapers. It alleges that when newspapers were delivered to petitioner its control ceased; that the boy could deliver them on foot or bicycle as he chose; that he was not ordered to deliver them at any particular time or in any specific manner; that depending on his whim, he could throw the papers on porches, lawns, driveways or place them in doors or mail boxes. Petitioner did not wear any identification indicating a relationship with respondent, and no equipment was provided for his use.

As further evidence of lack of control, respondent points out that petitioner was paid no wages and his earnings were based upon his profits, Viz., the difference between the wholesale and retail price; that he was responsible for all collections and losses resulting from unpaid bills. The Record did not withhold payments from petitioner's earnings for income taxes, social security or unemployment contributions.

In support of its position respondent relies heavily upon two Pennsylvania Superior Court decisions, Rodgers v. P-G Publishing Co., 194 Pa.Super. 207, 166 A.2d 544 (1960), and Balinski v. Press Pub. Co., 118 Pa.Super. 89, 179 A. 897 (1935), wherein decedents of claimants for workmen's compensation were held to be independent contractors. We find distinguishing factors in Rodgers. There the claimant's decedent was a newspaper distributor under a written contract with the Post Gazette Publishing Co. He provided his own delivery equipment and carriers to make distribution, could determine what he would charge for the papers on resale, was not barred from engaging in other gainful employment, and could use other personnel in the newspaper distribution with a minimum time spent by himself. In Balinski, a case involving a newsboy who 'hawked' his wares on a street corner, the court relied primarily on the fact that a vendor-vendee relationship had been established. The latter decision is criticized in 1 Larson, Workmen's Compensation Law, § 44:33(b) (1952), where the author states:

'(T)he reality of the position of a newsboy * * * should not be obscured by the technicalities of payment * * * especially since many other indicia of employment, such as the right to terminate, control of location, furnishing of equipment, and the like, were present.' (at p. 649).

On the other hand, petitioner alleges the proofs established the master and servant relationship under the 'right to control test' and the 'relative nature of the work test.' He argues that in the performance of services of delivering the newspapers the newsboy was subject to the general control of the newspaper publisher in every respect save where control was unimportant.

Both sides endeavor to draw sustenance from El v. Newark Star-Ledger, 131 N.J.L. 373, 36 A.2d 616 (Sup.Ct.1944). That case arose before the 1956 repeal of a part of N.J.S.A. 34:15--36, which provided that newspaper delivery boys should not be considered employees under the Workmen's Compensation Act. El, a newsboy, after completing the regular deliveries on his route, was struck by an automobile while delivering a newspaper under the orders of the branch manager for the purpose of 'laying a foundation' for his future solicitation of a new subscriber. The Newark Star-Ledger admitted petitioner was under the immediate charge and control of its branch manager. The court held that this control, under the circumstances exhibited, constituted the relation of master and servant.

In determining that the requisite control existed to establish the employment relationship, the court, in El, considered certain factors similar to those appearing in the...