Silagy v. State

• Decision Date: 15 May 1968
• Docket Number: No. 5880,5880
• Citation: 244 A.2d 542,101 N.J.Super. 455
• Parties: Margaret SILAGY, Petitioner-Appellant, v. STATE of New Jersey and County of Mercer, Respondents-Respondents.
• Court: New Jersey County Court

Page 455

101 N.J.Super. 455

244 A.2d 542

Margaret SILAGY, Petitioner-Appellant, v. STATE of New Jersey and County of Mercer, Respondents-Respondents.

No. 5880.

Mercer County Court, Law Division, New Jersey.

May 15, 1968.

Charles J. Casale, Jr., Hasbrouck Heights, for petitioner-appellant (Pellettiere & Rabstein, Trenton, attorneys).

Charles I. Levine, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).

Philip A. Levy, Trenton, for respondent, County of Mercer (Levy, Levy, Albert & Marcus, Trenton, attorneys).

SALVATORE, J.C.C.

This action arises out of an appeal from a judgment in the Division of Workmen's Compensation denying petitioner's claim for relief. The essential facts which form the basis of petitioner's claim for relief are not in dispute since all the parties to this action entered into a stipulation at a hearing before Judge of Compensation Skeffington, and that stipulation is adopted for the purposes of this appeal. The stipulation is as follows:

'It can be stipulated that on June 29, 1966, Margaret Silagy was and had been in the employ of the State of New Jersey earning a weekly wage of $64.27; that on that day she was engaged in jury service for the County of Mercer at the Mercer County Court House and she sustained injuries by reason of an accident arising out of and during the course of her jury service; she received for her service the regular and statutory jury fee; that everybody has disclaimed liability in the case; and that there are presently due the following bills which have not been paid; The Trenton Orthopedic Group, $80; St. Francis Hospital for X-rays, $84.65; and the petitioner is entitled to reimbursement in the amount of $3.75 for an elastic stocking prescribed by Dr. Thurm, the treating physician. She was also out of work for a period of four weeks during which she was paid her full wages by the State of New Jersey. I think it can also be stipulated that during jury service the State of New Jersey paid her her full wages.'

In an order dated November 20, 1967 the petition against the State of New Jersey was dismissed, Judge Skeffington ruling that the injury suffered by petitioner did not result from an accident arising out of and in the course of her employment with the State of New Jersey. The petition against the County of Mercer was similarly dismissed in an order dated November 28, 1967, upon Judge Skeffington's determination that 'petitioner while serving on jury duty was not an employee of the County of Mercer,' as required by the Workmen's Compensation Act. This appeal follows the entry of the above orders.

Petitioner's normal or usual employment by the State of New Jersey was as a clerk in the Department of Labor and Industry. Upon receiving notice to appear for jury duty on June 20, 1966 at the Mercer County Court House in Trenton, she was permitted to attend to this duty at the expense of the State. It was understood that when petitioner was not needed for jury duty she would appear for her usual employment. On June 29, 1966 she served jury duty and, upon leaving the Mercer County Court House that day, tripped over a rubber mat, resulting in serious injuries to her right foot and ankle.

There is no factual dispute between the parties, hence the issues presented for consideration by this court are as follows:

1. Whether an employee of the State of New Jersey, who is maintained on full salary but serves as a juror for a stipulated period of time, remains an employee of the State during the course of that jury duty and is entitled to receive workmen's compensation benefits from the State for injuries suffered while on said jury duty; and

2. Whether the petitioner was an employee of the County of Mercer because she was summoned for jury duty and performed a particular function for the county; was paid by the county for said jury services; and was at all times subject to the control and direction of the county during the course of her jury duty.

The legal questions raised by this appeal are novel to the State of New Jersey. Neither the court nor counsel for the respective parties were able to find reported decisions of this State discussing the issue of whether, for purposes of workmen's compensation, a juror is an 'employee' of the county which summons him for jury duty. There are reported decisions from other states which indicate two views and which will be discussed at length later in this opinion.

The court will first consider the question of whether the petitioner was an employee of the State of New Jersey while serving as a juror.

I

It is the position of respondent State of New Jersey that for a state employee to receive workmen's compensation benefits, she must come within the scope of N.J.S.A. 34:15--43 relating to 'public employee(s) within workmen's compensation law * * *.' It is further contended that in order to do this, petitioner must have been an employee of the State of New Jersey at the time of her accident and the injury must be work-related; it must have arisen out of and in the course of her employment. R.S. 34:15--7, N.J.S.A.

Petitioner contends that while she was engaged as a member of the jury panel at the Mercer County Court House, the State of New Jersey paid her full salary in conformity with its employment policy. It is alleged these payments clearly arose from the employer-employee relationship; therefore the sole issue as to this portion of the appeal is whether the petitioner was injured in an accident arising out of and in the course of her employment with the State.

Payment of wages may be one of the elements of proof in determining whether the relationship of employer-employee exists at a particular moment, but it is not a controlling factor. The court will also consider the factors of hiring, control and power of dismissal, with control being the single most important factor. Runk v. Rickenbacher Transportation Co., 31 N.J.Super. 350, 354, 106 A.2d 554 (App.Div.1954). Control is defined as supervisory power not only over what shall be done--the desired end result, but also over how it shall be done--the means of accomplishing that end result. Marcus v. Eastern Agricultural Ass'n, Inc., 58 N.J.Super. 584, 596, 157 A.2d 3 (App.Div.1959), reversed 32 N.J. 460, 161 A.2d 247 (1960). See, e.g., Wilson v. Kelleher Motor Freight Lines, Inc., 12 N.J. 261, 264, 96 A.2d 531 (1953); DeMonaco v. Renton, 18 N.J. 352, 355, 113 A.2d 782 (1955); Cappadonna v. Passaic Motors, Inc., 136 N.J.L. 299, 300, 55 A.2d 462 (Sup.Ct.1947), affirmed per curiam 137 N.J.L. 661, 61 A.2d 282 (E. & A.1948). However, there are various situations in which the control test is not the dispositive factor in establishing an employer-employee relationship. They necessarily require a consideration of the circumstances surrounding the particular facts of each case. E.g., DeMonaco v. Renton, supra, 18 N.J., at p. 357, 113 A.2d 782.

In the present case the State neither controls What shall be done while petitioner is on jury duty nor How her duties are to be performed. As the usual employer, the State cannot and does not control the hiring of the juror, the discharge of the juror, the final vote of the juror, the place where she is to vote, the hours she is to serve, nor the compensation to be paid for her service. In short, the State does not exercise, to any significant degree, such control over petitioner while she is serving as a juror as would determine the existence of an employer-employee relationship.

Petitioner contends that an employment relationship may be concluded from the State of New Jersey's practice of continuing payment of normal wages during the period of jury duty; from the fact that she was conferring a benefit to her employer, the State; and moreover says it is not necessary that the employee's injuries be incurred while in the course of her usual employment.

In support of this position petitioner relies upon the case of Healy v. Pennsylvania R. Co., 184 F.2d 209 (3 Cir. 1950). In that case a railroad employee was killed while crossing tracks to attend a rally to find out why he had not received a war bond for which he had subscribed. The court found that defendant, the decedent's employer, had induced its employees to attend a bond rally by paying them a regular salary during their attendance. The question arose on appeal whether decedent was engaged in interstate employment when killed, so as to permit recovery under the Federal Employer's Liability Act, 45 U.S.C.A., § 51. The court pointed out the employer had by various acts widened the scope of decedent's employment to include the purchase of bonds at a rally, including the payment of normal salary during his attendance. The court said that 'defendant itself had enlarged the ambit of the employment by its patriotic efforts to assist the United States to sell bonds to its employees.' (at p. 212)

Petitioner contends Healy is analogous to the instant case in that the State of New Jersey was seeking to aid its judicial department to obtain the attendance of qualified jurors who might otherwise seek to be excused because of financial hardship. This court does not agree with petitioner's conclusions. In Healy the foreman was acting under the direction of one of the company's supervisors as to the time and place of the war bond rally to be conducted by the supervisor, in addition to other factors. In the instant case, petitioner was performing a civic duty which each individual owes his community. The Queen v. Lui Self, 8 Haw. 434 (1892); Jochen v. County of Saginaw, 363 Mich. 648, 110 N.W.2d 780 (Sup.Ct.1961). While petitioner was serving as a juror there was no control being exercised over her by the State, and continued payment of wages was a matter of policy with her usual employer. Indeed, there is no statutory requirement that an employer must continue to pay a juror her normal wages while serving jury duty. It is entirely discretionary with the usual...