Harrison v. Stanton, A--301

• Decision Date: 12 June 1953
• Docket Number: No. A--301,A--301
• Parties: HARRISON v. STANTON.
• Court: New Jersey Superior Court — Appellate Division

Page 194

26 N.J.Super. 194

97 A.2d 687

HARRISON v. STANTON.

No. A--301.

Superior Court of New Jersey, Appellate Division.

Argued May 25, 1953.

Decided June 12, 1953.

John H. Yauch, Jr., Newark, argued the cause for appellant (Gilhooly, Yauch & Fagan, Newark, attorneys).

Arthur F. Mead, Newark, argued the cause for respondent (Cox & Walburg, Newark, attorneys).

Before Judges EASTWOOD, BIGELOW, and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

No one today criticizes the alert business man who endeavors to row into the flowing current of success with muffled oars. An illustration is displayed by the present case in which an experienced and enterprising funeral director enlisted his assistant in the membership of an Optimist Club as a good-will solicitor incidentally to remind the sanguine fraternal brethren that the doors of death and of his employer's furneral parlor were always open. The belief that a live wire would be a dead one except for its connections has supplied many members to our social, civic, and fraternal organizations, and crowded our golf courses.

The justiciable question in the case before us centers in the legal responsibility of the employer for the payment of workmen's compensation to his subsidized goodwill missionary if the latter suffers an accident in the pursuit of that undertaking.

The factual aspect of the present case may at first glance appear to be somewhat anomalous, but an examination of the evidence discloses that it is not artificial.

For many years Mr. Edward H. Stanton has been a licensed funeral director and embalmer conducting his business in Nutley under the name of Stanton Funeral Home. The petitioner aspired to be a mortician and served his apprenticeship with Mr. Stanton. Upon attaining his requisite license, the petitioner continued his association and on September 26, 1950 was permanently employed by Mr. Stanton to serve him as a funeral director and embalmer and 'to devote his full time, efforts and attention to said employment.' The agreement of employment was in writing and contained relatively comprehensive terms exhibiting the contemplation that the petitioner might ultimately acquire the business and the funeral premises upon the death of Mr. Stanton.

When and how did the petitioner, Mr. E. Donald Harrison, become an Optimist? We quote Mr. Stanton's candid explanation:

'Q. Now, Mr. Stanton, do you recall the time that Mr. Harrison, while in your employ, was approached in connection with the formation of the Optimist Club in Nutley? A. I recall the time but it wasn't Mr. Harrison that was approached. I was approached.

'Q. Will you please tell us the facts in connection with that? A. Yes. Mr. Laducer in Nutley came down to see me and asked me about whether I would like to have Don join the Optimist Club as a representative of the Stanton Funeral Home, as they were just starting or had just started the organization of an Optimist Club in Nutley and they would like to have us represented. I told him I would like very much to do that, * * * I told Mr. Laducer that Don could not join at that time because he was going to an embalmer's school, but I told him I would like to have him hold his qualifications open for membership in the Club until Don finished his course and that I would be glad to have him represent our organization in the Club and that's what happened.'

Mr. Stanton paid the petitioner's initiation fee and has ever since paid his membership dues. The membership entailed additional expenditures. 'Q. Now, Mr. Stanton, who paid the expenses that were incurred by Mr. Harrison in connection with his attending these various affairs--not only of the Optimist Club but the other organizations in which he represented your organization? A. I paid all expenses for anything he attended or attends as a representative of the Stanton Funeral Home.'

Confirmatory are the current entries in Mr. Stanton's account book of business disbursements. We think that the persuasion that Mr. Stanton, the employer, implanted the petitioner, his employee, in the membership of the Optimist Club for the purpose of promoting his business is indubitable. In response to that purpose, and perhaps to other personal gratifications, the petitioner enthusiastically engaged in the activities of the organization, amongst which was the annual social but financially productive event known as the 'Gay Nineties Party' arranged to produce funds for boys' sports.

Mr. Stanton expressed his wishes:

'A. Well, let me put it this way. Any time he could attend I wanted him to attend * * * whenever it was possible for him to attend, I wanted him to, because I feel it is good for business for him to be there and mingle with the people.'

An anniversary 'Gay Nineties Ball' was arranged to occur on the evening of April 21, 1951. Not only the members of the club but also their wives were expected to attend. Even since the birth of their child about five years before this occasion the petitioner and his wife, in order to attend such social assemblages, were obliged to engage the services of an attendant commonly designated as a 'baby sitter.' Mr. Stanton appreciated the necessity of that custodial attention and had in each instance defrayed the expense incurred by the petitioner for the attendance of the baby sitter.

Such was the situation on the evening of April 21, 1951 when the petitioner called for and transported the baby sitter to his home, and he and his wife attended the party by means of Mr. Stanton's automobile, which the petitioner was privileged to use on all such missions. With the recession of the members and their guests at an early hour of April 22, 1951 the petitioner and his wife returned to their home, his wife entered, and the baby sitter, a...