Miller v. Nat'l Chair Co.

• Decision Date: 28 February 1941
• Citation: 18 A.2d 847,19 N.J.Misc. 275
• Parties: MILLER v. NATIONAL CHAIR CO. et al.
• Court: New Jersey Supreme Court

18 A.2d 847

19 N.J.Misc. 275

MILLER

v. NATIONAL CHAIR CO. et al.

New Jersey Department of Labor—Workmen's Compensation Bureau.

Feb. 28, 1941.

[Copyrighted material omitted.]

Proceeding under the Workmen's Compensation Act by Zack Miller, claimant, opposed by the National Chair Company and others. On petition for compensation.

Petition dismissed as to respondents Federal Furniture Company and Liberty Mutual Insurance Company, and judgment entered in favor of claimant against respondents National Chair Company and New Jersey Manufacturers' Casualty Insurance Company.

David Roskein, of Newark, for petitioner.

George Meredith, of Trenton, for respondent.

HARRY H. UMBERGER, Deputy Commissioner.

This case involves an accident which occurred on June 24, 1938, at the plant of the Federal Furniture Company at Elkin, North Carolina. At the beginning of the trial it was stipulated that the liability feature of the case would first be decided and, if decision thereon was favorable to petitioner, testimony would then be introduced touching on the disability question.

At the conclusion of the petitioner's case on question of liability, motions were made by the respective counsel of the Federal Furniture Company and the Liberty Mutual Insurance Company for dismissal of the petition as to them which was granted as petitioner's proofs failed to establish liability on the part of either of these respondents. The case then proceeded to final conclusion against the respondents National Chair Company and New Jersey Manufacturers Casualty Insurance Company.

The undisputed facts in the case are that in January of 1937 the petitioner became an employe of the National Chair Company at a salary of $40 per week, which some six months later was increased to $45 per week and that this latter contract was made at the plant in New Jersey and in January, 1938, the petitioner was sent by the president thereof to prepare for the opening of a new plant at Elkin, North Carolina. On March 25, 1938, the Federal Furniture Company was incorporated under the laws of the State of North Carolina. One Marcus Schachter was the president and dominating person in both these companies. Petitioner continued working for both these companies until June 24, 1938, when the accident in question occurred which resulted in his present disability. The said Marcus Schachter later died as a result of an automobile accident he was involved in on July 14, 1938.

Petitioner in his own testimony stated that at the time of his employment by the National Chair Company he was told by the president thereof, the said Marcus Schachter, that he would be the employe of this concern no matter where he might work. He further testified that at no time was he notified by anyone that he was the employe of the Federal Furniture Company. Cancelled checks and pay-roll records introduced by the petitioner show that he was paid his weekly salary by the National Chair Company and carried on its pay-roll records as late as July 14, 1938.

Respondent in putting in its defense introduced many letters and other documents received or sent by the petitioner from the plant of the Federal Furniture Company in North Carolina and also a check in the sum of $183.15 of that concern issued to petitioner on July 1, 1938, and entered on the Federal Furniture Company pay-roll records as wages of $185 less a deduction of $1.85 for "Federal Old Age Pension Tax". Respondent also introduced testimony by one Frank A. Hildebrand who described himself as a former superintendent of the Federal Furniture Company at its North Carolina plant, who stated that he was informed by said Marcus Schachter that he was the boss of petitioner and had the right to direct his work and to fire him. This conversation, however, he admitted was not in the presence of petitioner. He further testified that he never discharged or attempted to discharge petitioner. The petitioner in rebuttal denied that Mr. Schachter had ever told him that said Hildebrand was to be his boss or had the right to discharge him. Respondent also introduced into evidence the record of the North Carolina Industrial Commission which discloses that a report of the accident was made to said Commission, who thereupon assumed jurisdiction of the case and proceeded to authorize the payment of compensation and medical expenses pursuant to the agreement voluntarily executed under North Carolina Laws by the employer therein denoted, Federal Furniture Company, the employe, Zack Miller, and the insurance carrier, Liberty Mutual Insurance Company. Under the terms of this agreement said Miller was paid by said Insurance Carrier sixteen weeks temporary compensation at the weekly rate of $18. Payment of compensation under said agreement was then terminated because of the subsequent refusal of said Miller to submit to medical treatment as directed.

At the conclusion of trial on the question of liability respondent moved for dismissal of the petition on the grounds that the proofs supported a finding that petitioner at the time of the accident was the employe of the Federal Furniture Company and not the respondent National Chair Company under an implied contract of hire if not an actual one, and on the further ground that petitioner is estopped from bringing a claim for compensation in this State because of the undisputed fact that he first filed a claim with the North Carolina Industrial Commission, which thereupon took jurisdiction of the same and authorized payment of compensation to petitioner by the insurance carrier of said Federal Furniture Company.

A careful review of the evidence does not lead me to the conclusion that an implied contract of hire, as contended by respondent, has been shown to. have replaced the original contract of hire in existence between petitioner and respondent which latter contract is not denied to have been made in New Jersey some time prior to the accident. To establish such fact it would be necessary to show that the petitioner had in fact consented to the transfer of his services to the new master and accepted him as his master pro hac vice and that he had entered upon the service and submitted himself to the direction and control of the new master. Jackson v. Erie R. R. Co., 86 N.J.L. 550, 91 A. 1035. No direct proof was offered by respondent to show that petitioner had in fact consented to the transfer of his services to the Federal Furniture Company but seeks to raise an inference of his consent in its introduction of various documents and letters received and sent by him at the plant of the Federal Furniture Company. Similar exhibits were introduced by petitioner to show that affairs of the Federal Furniture Company were also administered by him at the plant of the respondent in New Jersey, and these circumstances do not warrant an inference of his acceptance of a new contract of hire in the service of the Federal Furniture Company, but rather a mere loaning of his services by the National Chair Company to the Federal Furniture Company which loaning would not relieve the former of its obligation to respond to the petitioner under the Workmen's Compensation Act of New Jersey, N.J.S.A. 34:15-1 et seq. Desposito v. American Lathing Company, 198 A. 841, 16 N.J.Misc. 279. Petitioner's activities in the affairs of the Federal Furniture Company are not inconsistent with a loan of his...