Hawksford v. Steinbacher Packing Co.

• Decision Date: 08 July 1963
• Docket Number: No. A--350,A--350
• Citation: Hawksford v. Steinbacher Packing Co., 193 A.2d 163, 80 N.J.Super. 129 (N.J. Super. App. Div. 1963)
• Parties: Herman HAWKSFORD, Petitioner-Respondent, v. STEINBACHER PACKING CO., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 129

80 N.J.Super. 129

193 A.2d 163

Herman HAWKSFORD, Petitioner-Respondent, v. STEINBACHER PACKING CO., Respondent-Appellant.

No. A--350.

Superior Court of New Jersey Appellate Division.

Argued June 17, 1963.

Decided July 8, 1963.

Isidor Kalisch, Newark, for appellant.

Richard J. Levinson, Perth Amboy, for respondent (Jacob, Alfred & Richard Levinson, Perth Amboy, attorneys).

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

GAULKIN, J.A.D.

Petitioner was denied workmen's compensation by the Division but the County Court reversed, in an opinion reported in 73 N.J.Super. 175, 179 A.2d 181. Steinbacher Packing Co. (Steinbacher) appeals. We affirm, but on somewhat different grounds.

The evidence shows that Hawksford had his own small meat route, making deliveries to his customers in a rented truck. Steinbacher was a wholesaler. Hawksford came to Steinbacher's plant daily to buy meat for distribution to his customers. One day, when Hawksford was at the plant to make such a purchase, Steinbacher asked him to cut up a quarter of beef for a customer who was in a hurry, Steinbacher's other butchers being out or engaged. While doing so, Hawksford was injured.

As the County Court said, the only question in the case is whether Hawksford was an employee as defined in N.J.S.A. 34:15--36 which provides:

'* * * 'employee' is synonymous with servant, and includes all natural persons * * * who perform service for an employer 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; * * *.'

As the County Court pointed out, Hawksford is entitled to compensation if he was performing the service for Steinbacher 'for financial consideration'; financial consideration need not be in money, and, if Hawksford was an employee as defined in N.J.S.A. 34:15--36, his employment was not casual. Graham v. Green, 31 N.J. 207, 156 A.2d 241 (1959).

We hold that Hawksford was doing a service for Steinbacher in exchange for special concessions in his purchases of meat received from Steinbacher in the past and to be received in the future, and, in view of their economic relationship to each other and their course of dealing, that constituted service for financial consideration. 1 Schneider, Workmen's Compensation, § 227, pp. 600--601; 1 Larson, Workmen's Compensation, § 47.43(b), pp. 702--703; Killebrew v. Industrial Commission, 65 Ariz. 163, 176 P.2d 925 (Sup.Ct.1947); Johnson v. Industrial Commission, 88 Ariz. 354, 356 P.2d 1021 (Sup.Ct.1960); Gabel v. Industrial Accident Commission, 83 Cal.App. 122, 256 P. 564 (D.Ct.App.1927); Aleckson v. Kennedy Motor Sales Co., 238 Minn. 110, 55 N.W.2d 696 (Sup.Ct.1952); Boehm v. D. A. Sokol Hall Holding Corp. 274 App.Div. 954, 83 N.Y.S.2d 729 (App.Div.1948), leave to appeal denied, 298 N.Y. 931, 83 N.E.2d 866 (Ct.App.1949); Johansen v. Gray, 283 App.Div. 647, 130 N.Y.S.2d 35 (App.Div.1954); Gant v. Industrial Commission, 263 Wis. 64, 56 N.W.2d 525 (Sup.Ct.1953). See also Smith v. Jones, 102 Conn. 471, 129 A. 50, 43 A.L.R. 952 (Sup.Ct.Err.1925); Miller v. Chautauqua County Agricultural Corp., 279 App.Div. 1126, 112 N.Y.S.2d 560 (App.Div.1952), motion for leave to appeal denied, 280 App.Div. 902, 115 N.Y.S.2d 310 (App.Div.1952), leave to appeal denied, 304 N.Y. 988, 109 N.E.2d 473 (Ct.App.1952); Rhodes v. G. H. Crandall Co., 4 A.D.2d 451, 167 N.Y.S.2d 101 (App.Div.1957), leave to appeal denied, 4 N.Y.2d 673, 171 N.Y.S.2d 1026, 148 N.E.2d 404 (Ct.App.1958). Contra, Alexander v. J. E. Hixson & Sons Funeral Home, 44 So.2d 487 (La.Ct.App.1950), but see Judge Ellis's dissent, and the comment on the Alexander case in 1 Larson, Workmen's Compensation, supra, § 47.43(b), p. 703; cf. Le-Co Gin Company v. Stratton, 241 Miss. 623, 131 So.2d 450 (Sup.Ct.1961); Geraci v. Laloggia, 283 App.Div. 1127, 131 N.Y.S.2d 666 (App.Div.1954). And see Brower v. Rossmy, 63 N.J.Super. 395, 164 A.2d 754 (App.Div.1960), certification denied, 34 N.J. 65, 167 A.2d 54 (1961); Marcus v. Eastern Agricultural Ass'n, Inc., 58 N.J.Super. 584, 596, 157 A.2d 3 (App.Div.1959), reversed (adopting the dissenting opinion below) 32 N.J. 460, 161 A.2d 247 (1960); Hannigan v. Goldfarb, 53 N.J.Super. 190, 147 A.2d 56 (App.Div.1958).

In Killebrew v. Industrial Commission, supra, Verretto and Sullivan, partners, were baling hay for Walter A. Duncan. Duncan's son Jimmy helped the partners do the job. Further facts appear in the excerpt from the opinion quoted below. The question was whether Jimmy was an employee of the partnership. The court held that he was, saying:

'* * * While Jimmy Duncan deemed himself indebted to Verretto for favors in machinery lent to him in the past, he neither asked for nor received any compensation from Veretto or the partnership for his work as punch-back on the Walter Duncan job of July 1, 1945. It appears from the testimony of Jimmy Duncan that he had worked for Verretto and Sullivan prior to said July 1, 1945, and had been paid 50cents an hour * * * Jimmy Duncan testified:

'Q. I would like to know--was there any change in your relationship as to who was boss on the job on that day and in comparison with the days you worked and received pay for them? A. No, sir.

Q. You were working and Rusty (meaning Verretto) was the boss? A. Yes, sir.' (176 P.2d p. 927)

* * * He had previously been so employed and paid by Verretto and Sullivan for similar work. His employment at the time of the alleged accident was for exchange of services for favors, and the fact that the services were to be compensated for in some manner not by money does not make the contract for hire any the less legal and effective. * * *.' (176 P.2d at p. 928)

In Johnson v. Industrial Commission, supra, Johnson, a prisoner in the county jail, was 'loaned' with other prisoners to respondent Arizona and Yuma County Fair, Inc., a private corporation. Johnson was, of course, fed and housed Gratis while in the county jail. The consideration he received for working for respondent was primarily three days' credit on his sentence for each day worked. The respondent corporation fed and housed the prisoners while they were working for it, and gave them 'sundries and cigarettes.' Johnson was injured while working on the fair grounds. The court held he was an employee entitled to compensation:

'* * * In the instant case petitioner was at all times under the control of the employer, Yuma County Fair, Inc., which had the right to direct the manner in which the service was to be performed and the right to terminate petitioner's services.

Although petitioner was under duress in that he was a prisoner of Yuma County, there is nothing in this record to indicate that the actual services of these eight prisoners for the Yuma County Fair, Inc. was compulsory. As an additional inducement they were each given three-days credit for each day's work and seemingly were free to choose whether they worked or not. All the essentials of a contract for hire were present. Consideration flowed from the employer by way of different food and lodging, perhaps better, and sundries and cigarettes. Petitioner evidenced his agreement to the arrangement by performing the work tendered. * * *.' (356 P.2d at p. 1023).

In Aleckson v. Kennedy Motor Sales Co., supra, Aleckson was an insurance broker with offices in Chicago, earning over $15,000 a year. Because of his daughter's health, his wife and daughter moved to Minnesota, while Aleckson continued to live in Chicago. Aleckson became acquainted with an officer of the Kennedy Motor Sales Company, a St. Paul car dealer, and learned that it purchased used cars in Chicago. As the opinion says, 'an informal arrangement was made between them' whereby whenever Aleckson chose to come to Minnesota to visit his family, if the Kennedy Company had bought a car in Chicago which had to be driven to St. Paul, Aleckson could drive it in. Between June 1948 and March 1950 Aleckson drove at least 12 Kennedy cars from Chicago to St. Paul. He would leave Chicago Friday afternoon and arrive at his wife's residence Friday night. He would then use the car over the weekend for personal purposes such as shopping, taking his daughter to the doctor, sightseeing and going to the movies. On Sunday night, before leaving for Chicago on the train, Aleckson would deliver the car to the Kennedy Company sales lot and leave the car keys with a written statement of his actual out-of-pocket expenses for gasoline, oil and repairs, which were usually under $10, for which Kennedy reimbursed him. These amounts were the only sums received by Aleckson.

On one of these trips, Aleckson was killed. The court held that he was an employee of Kennedy and the death was compensable, saying:

'* * * The commission could reasonably find that Aleckson, in exchange for his services in driving and delivering the Cadillac to St. Paul, received the equivalent of wages in that he was thereby provided with a means of personal transportation from Chicago to Minnesota. He received something of computable value in that he did not have to pay for the gasoline and oil which he would have used had he driven his own car. He was also saved the wear and tear of his own vehicle, and upon arrival he had the use of the Cadillac in shopping for his family, taking his daughter to the dentist, going to church, and pleasure driving around the twin cities. * * *.' (55 N.W.2d at pp. 700--701)

The opinion in Boehm v. D. A. Sokol Hall Holding Corp., supra, says that decedent was employed as a 'casual porter,' but gives no details. The accident happened after his regular hours of employment had terminated, but there was proof that he often performed some services after hours for which he was rewarded 'by way of refreshments.' His injury was held compensable.

In Gant v. Industrial Commission, supra, Gant and Hendrickson were...