Marcus v. Eastern Agr. Ass'n, Inc.
| Decision Date | 28 December 1959 |
| Docket Number | No. A--523,A--523 |
| Citation | 58 N.J.Super. 584,157 A.2d 3 |
| Parties | Murray MARCUS, Petitioner-Respondent, v. EASTERN AGRICULTURAL ASSOCIATION, INC., Respondent-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Brian D. Conlan, Newark, for respondent-appellant (Gurry & Conlan, Newark, attorneys).
William E. O'Connor, Jr., Toms River, for petitioner-respondent (Henry L. Gertner, Lakewood, of counsel).
Before Judges CONFORD, FOLEY and MINTZ.
MINTZ, J.C.C. (temporarily assigned).
This is a workmen's compensation case. The Division of Workmen's Compensation awarded petitioner compensation. The County Court affirmed. The respondent appeals. The sole issue on appeal is whether the testimony discloses that petitioner was an employee within the purview of N.J.S.A. 34:15--36.
It is the duty of this court to weigh the evidence adduced below and determine whether petitioner has sustained the burden of proving 'employee' status by a preponderance of the evidence, giving full and respectful consideration to the views expressed on both facts and law by the Division and County Court. Russo v. United States Trucking Corp., 26 N.J. 430, 140 A.2d 206 (1958).
Petitioner and his wife jointly own a chicken farm in Farmingdale, New Jersey. The respondent is engaged in the business of producing and selling eggs, and in raising laying chickens. Early in 1957 petitioner entered into an oral arrangement with respondent whereby he would raise chicks owned by respondent on his farm at a price of $10 a week per thousand chicks. Subsequently, the number of chicks on his premises averaged between 7,500 and 8,000, and a new arrangement was entered into orally whereby petitioner received a flat sum of $70, later increased to $75, a week for his services and facilities. Respondent made no deductions for social security, withholding, or any other tax.
On December 7, 1957 petitioner was working in the chicken building which consisted of 'five big rooms and there were five stoves operating with chicks under the stoves.' There was an explosion in one of the metal stoves, as a result of which he sustained multiple burns.
The feed for the chicks was supplied by the respondent. It representative instructed petitioner how to feed the chicks, would advise medication, and call in a veterinarian when required. The advices were generally by telephone, although respondent's Mr. Boyarin came to the farm on an average of once a month. On one occasion respondent's representative instructed the petitioner to change the gas heating system, which he did at a cost of $12. Petitioner had no employees to assist him in his work, although he admitted that his wife helped him on occasion, working five hours for the entire week when required.
At the conclusion of the oral argument before us counsel, at the request of the court, stipulated certain facts not disclosed in the testimony, for inclusion in the record. The stipulation included the following: The petitioner purchased the farm on January 10, 1949 for $33,500 and that as of October 1, 1959 the mortgage balance amounted to $10,136.33. The operating expenditures amounted to approximately $100 yearly for replacements and costs of repairs to equipment. The equipment on the farm, dates of acquisition and cost thereof are as follows:
10 brooder stoves 3/15/49 @ $35.00 $350
100 8-ft. hoppers 9/2/49 @ 5.00 500
100 2-ft. hoppers 3/15/49 @ .50 50
100 4-ft. hoppers 2/10/53 @ .70 70
600 holes--nests 5/10/49 @ 1.00 600
600 holes--nests 1/5/54 @ 1.00 600
30 feed buckets 3/15/49 @ .80 24
60 chick jars 3/22/49 @ 1.50 90
25 rings for brooding 5/10/49)
2/8/51 ) @ 3.00 75
20 chicken crates 5/10/54 @ 2.75 55
From the date petitioner made his arrangement with respondent until the date of the accident, the equipment above itemized was used exclusively for raising of chicks owned by respondent. A suit is presently pending against petitioner, instituted by a feed company, for $14,336.14, representing feed purchased by petitioner prior to his arrangement with respondent. The petitioner's farm contains 24 acres. Only approximately two acres were devoted to poultry-raising activities, and from January 1, 1956 to January 1, 1959 about ten acres were leased out for the raising of corn at an annual rental of $100. During said period no other kind of activity for profit was conducted on the farm. There were no other farm buildings or commercial equipment on the premises except that which the lessee brought on the farm in connection with his corn-raising activities. Petitioner and his wife occupied the residence. The balance of the land on the farm was not put to any use. Petitioner performed no work in connection with the raising of corn. Between January 1, 1956 and the spring of 1957 petitioner maintained poultry on the premises until one month before his arrangement with respondent, at which time he sold the remainder of his flock with the intention of abandoning the poultry raising business.
The factual situation presents a case of novel impression in New Jersey.
In Hannigan v. Goldfarb, 53 N.J.Super. 190, 195, 147 A.2d 56, 59 (App.Div.1958), this court held that
* * *'
The rule applicable here, as in any case where the character of the relationship between the parties is in issue, is simply that it Piantanida v. Bennett, 17 N.J. 291, 294, 111 A.2d 412, 414 (1955). The element of control is the 'determinative factor' and the criterion by which each case is determined. Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 96 A.2d 531 (1953); De Monaco v. Renton, 18 N.J. 352, 113 A.2d 782 (1955). The status of the petitioner is to be resolved upon the totality of the facts surrounding the relationship, with due regard for the attendant circumstances, the object in view, and the course of practice in its execution. Hannigan v. Goldfarb, supra.
In Errickson v. F. W. Schwiers, Jr., Co., 108 N.J.L. 481, 483, 158 A. 482, 483 (E. & A.1931), it was held that
'An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.'
Generally it may be said that where 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, the relationship of employer and employee exists. Hannigan v. Goldfarb, supra; Errickson v. F. W. Schwiers, Jr., Co., supra.
When the manner of performing the service is beyond another's control because of its nature, absence of direct control over such details becomes insignificant in the over-all view of the facts and circumstances to be taken into account in determining the relationship. De Monaco v. Renton, supra. The control test is satisfied when the employer has the actual right of control, and it is not requisite to prove its actual exercise. Mahoney v. Nitroform Co., Inc., 20 N.J. 499, 120 A.2d 454 (1956).
Do the facts at bar demonstrate respondent's exercise or right of control over the petitioner in his work? We think not. Mr. Boyarin, the secretary of the respondent and a friend of petitioner, testified, And he also testified that In response to a query of the Deputy Director as to whether he gave petitioner any instructions as to the quantity of food to be fed the chicks, he said, The reference was to farmers to whom chickens were sold by the respondent.
Ralph L. Colton, Jr., the president of the respondent-company, testified that he exercised no control over petitioner, and that it was not necessary to give him detailed instructions.
We conclude that the petitioner was a skilled poultry man. He described himself as a 'chicken farmer.' The Deputy Director noted that petitioner 'probably knew more about raising chickens than those who were in the Eastern Agricultural Association.' He did not require or receive the type of supervision or direction sufficient to spell out control. The instructions he received were the same as those furnished by respondent as a service to its customers to whom it actually sold chicks. It certainly cannot be urged that in rendering such service to its customers, respondent exercised control over them. We fail to see how this indisputable custom in the trade can be given any greater effect in the...
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