Essbee Amusement Corp. v. Greenhaus

• Decision Date: 18 March 1935
• Docket Number: No. 225.,225.
• Citation: 177 A. 562
• Parties: ESSBEE AMUSEMENT CORPORATION v. GREENHAUS.
• Court: New Jersey Supreme Court

177 A. 562

ESSBEE AMUSEMENT CORPORATION

v. GREENHAUS.

No. 225.

Supreme Court of New Jersey.

March 18, 1935.

Certiorari to Court of Common Pleas, Hudson County.

Proceeding under the Workmen's Compensation Act by Mamie Greenhaus, for the death of Morris Greenhaus, claimant, opposed by the Essbee Amusement Corporation, employer. To review an order of the Hudson County Common Pleas Court which reversed a judgment of the Workmen's Compensation Bureau in favor of employer, it brings certiorari.

Writ dismissed.

Argued October term, 1934, before HEHER and PERSKIE, JJ.

Edwin Jos. O'Brien, of Newark, for prosecutor.

Hudspeth & Harris, of Jersey City, for respondent.

PERSKIE, Justice.

By concession of each party, the real and only issue in this case is whether Morris Greenhaus, deceased, was or was not employed by the prosecutor at the time of the accident resulting in his death. Did the statutory relationship of employer and employee exist between the parties? The bureau held that it did not; the court of common pleas of Hudson county held that it did. Which is correct?

Under subdivision (c) of paragraph 23, section 3, General Provisions, of our Workmen's Compensation Act (as amended by chapter 93, P. L. 1919, p. 211 [Comp. St. Supp. 1924, § **236—32 subd. (c)], it is provided: "(c) Employer is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; employee is synonymous with servant, and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments, which shall be defined, if in connection with the employer's business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring." (Italics ours.)

To constitute one an employee it is essential that there shall be a contract of service. Honnold on Workmen's Compensation, c. 51, p. 178 (1918 Ed.). The test by which to determine whether one person is another's employee, within the rule making the employer liable for injuries resulting from the negligence of this employee, is whether the alleged employer possesses the power to control the other person in respect to the transaction out of which the injury arose. Id. c. 49, pp. 167, 168. See 20 C. J. p. 1241.

The prosecutor is a corporation. How could it be found?

In the case of Erie Railroad Co. v. S. J. Groves & Sons Co., 114 N. J. Law, 216, 176 A. 377, 378, the writer of this opinion for the Court of Errors and Appeals restated the law applicable, as follows:

It was incumbent upon the plaintiff to show that the contract upon which suit was brought was the contract of the defendant. To bind the defendant the contract must be proven to have been the act of the defendant either by corporate action, the act of an authorized agent, or by adoption and ratification. Beach v. Palisade Realty & Amusement Co., 86 N. J. Law, 238, 90 A. 1118.

"'A corporation is bound by the act of an officer or agent only to the extent that the power to do the act has been conferred upon such officer or agent expressly by the charter, by-laws, or corporate action of its stockholders or board of directors, or can be implied from the powers expressly conferred, or which are incidental thereto, or where the act is within the apparent powers which the corporation has caused those with whom its officers or agents have dealt to believe it has conferred upon them.' Aerial League of America v. Aircraft Corp., 97 N. J. Law, 530, 532, 117 A. 704, 705, and cases therein cited. * * *

"The rule is that the principal is bound by the acts of his agent within the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case depending upon the apparent authority of the agent is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question; and when, as here, the party, relying upon such apparent authority, presents evidence which would justify a finding in his favor, he is entitled to have the question submitted to the jury. J. Wiss & Sons v. H. G. Vogel Co., 86 N. J. Law, 618, 92 A. 360.' American Well Works v. Royal Indemnity Co., 109 N. J. Law, 104, 108, 160 A. 560, 562; Burlew v. Brockway Motor Truck Corp., 109 N. J. Law, 567, 569,162 A. 656."

It is uncontroverted that the officers of the prosecutor never made arrangement with the decedent as to either his term of employment, or his wage or salary. In fact, they did not know that he was on the premises.

Do the facts that the contract of employment was indefinite as to term and uncertain as to amount of salary or wage, operate to defeat the relationship of employer and employee? We do not think so.

In the case of Willis v. Wyllys Corporation, 98 N. J. Law, 180, 181, 119 A. 24, the Court of Errors and Appeals, by Mr. Justice Parker, said: "There is great diversity of view in the different jurisdictions respecting this class of cases. The 'English view,' so called, tends to a construction establishing a contract for a definite term, if this can be spelled out of the language used. The 'American view,' favored by most of the states, tends toward a holding that the hiring is at will, unless the contrary be fairly plain. 26 Cyc. 973 et seq.; Williston on...