Galler v. Slurzberg

• Decision Date: 25 June 1954
• Docket Number: No. A--104,A--104
• Parties: GALLER v. SLURZBERG et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 314

31 N.J.Super. 314

106 A.2d 312

GALLER v. SLURZBERG et al.

No. A--104.

Superior Court of New Jersey.

Appellate Division.

Argued June 7, 1954.

Decided June 25, 1954.

Joseph A. Davis (of O'Mara, Schumann, Davis & Lynch), Jersey City, for plaintiffs-respondents (William A. Kaufmann, Hoboken, attorney).

Abraham J. Slurzberg, Jersey City, for defendants-appellants (August W. Heckman, Jersey City, attorney).

Before Judges CLAPP, SMALLEY and SCHETTINO.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Appeal is taken from a final judgment and order granting plaintiff injunctive relief against picketing and other activities by the 27 individual defendants. Interlocutory injunctions had theretofore issued, and litigation thereon is reported in 22 N.J.Super. 477, 92 A.2d 89 (App.Div.1952) and 27 N.J.Super. 139, 99 A.2d 164 (App.Div.1953).

For an obvious reason the final injunctions cannot be sustained. There is nothing to indicate that, had relief been withheld, the defendants would probably have done that which was enjoined. Meyer v. Somerville Water Co., 82 N.J.Eq. 572, 577, 89 A. 545 (Ch.1914). Cf., too, N.J.S. 2A:15--53(b). Moreover, no activities of the sort enjoined had been carried on except for two periods, one of them three-quarters of a year, and the other a year and a half, before the final injunctions issued. An injunction is turned toward future mischief; its office is not to punish for the past. Bayonne Textile Corp. v. American, etc., Silk Workers, 116 N.J.Eq. 146, 164, 172 A. 551, 92 A.L.R. 1450 (E. & A.1934).

There must be a reversal on this ground. However we have decided not to rest our decision solely upon it. Aside from the fact that we have not had the benefit of argument on the matter (though we pressed the point on the oral argument), we cannot but be aware of the tensions exhibited here that may bespeak things not shown by the record. Besides, the question which occasioned 207 pages of brief and a 1172-page appendix, with which we have been favored, not to speak of a final hearing lasting 22 days, seems to be involved in important phases of this litigation still pending below.

This question to which we allude is whether--as held by this court in connection with the interlocutory injunction, 22 N.J.Super. 477, 92 A.2d 89, supra--the defendants are employees; or whether--as found by the trial court on the final hearing below--they are independent contractors. The question comes before us in this way: plaintiff argues that defendants are not employees, as that term is used in the Anti-Injunction Act, N.J.S. 2A:15--51 to 2A:15--58, N.J.S.A., and that therefore that statute is not a bar to the injunctions here. Outdoor Sports Corp. v. A.F. of L., Local 23132, 6 N.J. 217, 78 A.2d 69, 29 A.L.R.2d 313 (1951). Plaintiff suggests additional theories which might sustain the injunctive relief granted and asks for further argument thereon, should we find its present contention invalid. Defendants do not deal with these theories. In view of plaintiff's failure to establish any threats by defendants or other circumstances warranting injunctive relief--the matter first mentioned in this opinion--we will not deal with these theories or with questions we have as to the activities enjoined, other than picketing, concerning which the briefs are silent.

We address ourselves then to the question which led the parties and the court below to make this big record--were the defendants employees?

Plaintiff is a partnership selling a soft drink, 7 Up, in certain counties of this State under an exclusive franchise granted by a national concern. Defendants were salesmen, each handling a route or routes within plaintiff's territory. The relationship between plaintiff and defendant was defined to some extent in a contract made in 1950 between plaintiff and an American Federation of Labor union which then represented defendants.

Out of the mass of factual detail bearing upon the question, we shall--endeavoring not to repeat what we said in 22 N.J.Super. 477, 92 A.2d 89, supra--set out, first, the factors relief upon to establish that defendants are independent contractors:

1. Right to discharge. Plaintiff contends it did not have the employer's usual redress (Courtinard v. Gray Burial, etc., Co., 98 N.J.L. 493, 495, 121 A. 145 (E. & A.1923); Geary v. Simon Dairy Products Co., 7 N.J.Super. 88, 93, 72 A.2d 214 (App.Div.1950)) against an employee who rejects instructions--namely, of discharging him. However, a very substantial part of the defendants' activities was regulated by the 1950 contract, and for default in its terms by a defendant, the plaintiff could, at will, as noted 22 N.J.Super., at page 488, 92 A.2d 89, supra, terminate the contract as to him. As to defendants' actions not so regulated, the contention has some force; but, limited as it is to them, it is by no means dispositive. We may ask further, without passing on it, is it our law that to constitute a relationship one of employment, it must be at will? In other words, cannot a person still be an employee, though he is under contract for a term during which he cannot be discharged? U.S. v. Wholesale Oil Co., 154 F.2d 745, 749 (C.C.A.10, 1946); In re Pacific Nat. Life Assur. Co., 70 Idaho 98, 212 P.2d 397 (Sup.Ct.1949); Kehrer v. Industrial Com'n, 365 Ill. 378, 6 N.E.2d 635 (Sup.Ct.1937); Balfour v. Dohrn Transfer Co., 328 Ill.App. 163, 65 N.E.2d 624 (App.Ct.1946); contra see Rozran v. Durkin, 381 Ill. 97, 45 N.E.2d 180, 144 A.L.R. 735 (Sup.Ct.1942); cf. 56 C.J.S., Master and Servant, § 2, pp. 35, 36.

2. The so-called mortmain clause. A clause in the 1950 contract permits the legal representative of a deceased defendant to nominate his successor. This, plaintiff contends, is 'the most powerful and irrefutable indication' that the defendants were not employees. Our court took note of that clause when reaching a contrary conclusion. 22 N.J.Super., at page 489, 92 A.2d 89, supra. The legal representative has, indeed, authority to designate a successor, provided--and this is the flaw in the contention--the person designated is suitable to the plaintiff. For practical purposes, this leaves the plaintiff with an absolute control over the matter.

3. The sub-employees. Several defendants, less than half of them, each had a driver or drivers assisting him. See 22 N.J.Super., at page 493, 92 A.2d 89, supra. Not only did he pay his driver as noticed in our earlier opinion, but from this pay he as an employer made withholdings required by the income tax and social security laws. However, the circumstances of this sub-relationship do not clearly indicate that defendants are independent contractors. For one thing, the drivers were subject to the same supervision as the defendants. Further, the actual hiring of a driver seems to have been left to the plaintiff. Still more significant is the fact that if one of these 'sub-employees' did not meet with plaintiff's approval, he had to be dismissed, somewhat as appears in Lewis v. National Cash Register Co., 84 N.J.L. 598, 600, 87 A. 345 (Sup.Ct.1913). Cf. Toner v. International, etc., Atlantic City, 113 N.J.L. 29, 172 A. 389 (E. & A.1934).

4. Compensation. The matter of compensation is sufficiently dealt with in 22 N.J.Super., at page 492, 92 A.2d 89 supra. Further see Jack and Jill, Inc. v. Tone, 126 Conn. 114, 9 A.2d 497, 499 (Sup.Ct.Err.1939); Sisk v. Arizona Ice & Cold Storage Co., 60 Ariz. 496, 141 P.2d 395, 397 (Sup.Ct.1943); cf. National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); People v. Gassman, 295 N.Y. 254, 66 N.E.2d 705, 166 A.L.R. 154 (Ct.App.1946). Plaintiff points out that it at times paid bonuses and gratuities to persons it acknowledged to be its employees, but not to defendants. This is not of great significance.

5. The delivery trucks. The trucks owned by defendants, registered in their names and on which they paid registration fees and insurance, are also dealt with in the opinion. 22 N.J.Super., at page 492, 92 A.2d 89, supra. Further see Milwaukee News Co. v. Industrial Commission, 224 Wis. 130, 271 N.W. 78 (Sup.Ct.1937); Restatement of Agency, § 220, comment (g). Under a fleet policy covering most defendants, the plaintiff also was insured for any liability it might incur under the doctrine of Respondeat superior with respect to the operation of the trucks. However, plaintiff apparently paid no premium for this insurance.

6. The parties' beliefs as to the relationship. Plaintiff deemed itself not to be defendants' employer, and so made no withholdings in conformity with the income tax, social security and unemployment compensation laws. On the other hand, defendants, as disclosed in certain of their income tax returns, and in nearly all of their applications for drivers' licenses, regarded themselves as self-employed. This is part of a scheme expressly provided for in the 1950 contract and the accompanying regulations by which plaintiff in mandatory terms sought to determine the status of the parties. While these matters are factors, Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 265, 96 A.2d 531 (1953); Geary v. Simon Dairy Products Co., 7 N.J.Super. 88, 91, 72 A.2d 214 (App.Div.1950), supra, they are not determinative. 22 N.J.Super., at page 487, 92 A.2d 89, supra; Mayo v. Hunt's Theatres, 1 N.J.Super. 8, 11, 61 A.2d 738 (App.Div.1948); O'Brien v. Washington National Insurance Co., 17 N.J.Super. 549, 555, 86 A.2d 310 (Cty Ct.1952); Downs v. Baltimore & Ohio R. Co., 345 Ill.App. 118, 102 N.E.2d 537, 542, 30 A.L.R.2d 503 (App.Ct.1952); Restatement of Agency, § 220, comment (i).

7. Miscellaneous matters. Credit by defendant. Plaintiff stresses the fact that defendants could give personal credit to a customer. However, though there is some general testimony on the point, quite naturally the defendants in fact extended little credit.

Defendants charged for merchandise. Plaintiff points out...