Stevens v. Allamuchy Tp.

• Decision Date: 25 February 1944
• Citation: 36 A.2d 128
• Parties: STEVENS v. ALLAMUCHY TP.
• Court: New Jersey Court of Common Pleas

36 A.2d 128

STEVENS

v.ALLAMUCHY TP.

Court of Common Pleas of New Jersey, Warren County.

Feb. 25, 1944.

Appeal from Workmen's Compensation Bureau.

Proceeding under the Workmen's Compensation Act by Harvey Stevens, claimant, opposed by the Township of Allamuchy, employer. From a determination and judgment of the Compensation Bureau awarding compensation, the employer appeals.

Determination and judgment of Compensation Bureau reversed and compensation denied.

Foley & Francis, of Newark, for appellant.

Gebhardt & Gerhardt, of Clinton, for appellee.

BOWERS, Judge.

This case presents the issue whether Harvey Stevens, petitioner-appellee, was an employee of the respondent-appellant, the township of Allamuchy, and, therefore, entitled to compensation under the Workmen's Compensation Act, N.J.S.A. 34:15-1 et seq., at the time he suffered an injury by reason of an accident occurring on May 4, 1940.

It appears that the petitioner had been duly appointed treasurer of the respondent township in the year 1934 and had also been postmaster of the Post Office at Allamuchy since the year 1929.

Early in the year 1938, he received word from the Post Office Department of the federal government that he could no longer hold the dual position of postmaster under the federal government and the office of treasurer under the municipal government of the township of Allamuchy, and that he must resign from one or the other. The petitioner made his choice by tendering his resignation as treasurer of the township of Allamuchy to the township committee on May 7, 1938, and the resignation was accepted by the township committee on May 27, 1938. The minutes of the respondent duly show the resignation, the acceptance, and the act of the committee in filling the office of treasurer by the appointment of Gladys Stevens (wife of the petitioner), for the unexpired term of said petitioner, and duly set the amount of the bond for the new treasurer. There is no dispute that Gladys Stevens continued to hold the office of township treasurer from the year 1938 down to the date of the accident on May 4, 1940, and duly signed the checks authorized by the committee.

It is claimed by the petitioner that two members of the township committee, just prior to the appointment of Gladys Stevens to fill the unexpired term of the petitioner for the office of township treasurer, suggested that the petitioner's wife be sppointed treasurer but that petitioner should continue to do the work of the treasurer with the exception of signing the checks, which would be done by his wife, the new treasurer, and that the petitioner could in some way get the salary of $150 per year paid for the office of treasurer from his wife. The evidence tends to show that the petitioner attended the meetings of the committee after the date of his resignation and he performed the duties of that office with the exception of the signing of checks and the presenting of the treasurer's salary bills, which were signed by the new treasurer, Gladys Stevens. No record of such an agreement or arrangement between the two committee members and the petitioner is found in the minutes of the township committee meetings.

That the petitioner suffered injuries as a result of an accident on May 4, 1940, is conceded, but is not the paramount question to be decided in this opinion.

In considering and determining the issue here involved, we must bear in mind certain settled and basic principles: 1. A necessary prerequisite for recovery under the Workmen's Compensation Act is the existence of the relation of employer-employee. Corbett v. Starrett Bros., Inc., Err. & App., 105 N.J.L. 228, 143 A. 352; Rojeski v. Pennington Dairy Farms, Inc., 118 N.J.L. 335, 192 A. 746. 2. In order for that relation to exist, there must be a valid contract of service together with the right or power in the employer to control the employee with respect to the transaction out of which the injury arose. Essbee Amusement Corp. v. Greenhaus, 114 N.J.L. 492, 493, 177 A. 562; Rojeski v. Pennington Dairy Farms, Inc., supra, 118 N.J.L. at page 337, 192 A. at page 748.

The evidence presented conclusively proves that the petitioner was not the township treasurer at the time the accident occurred. He had in good faith, on May 7, 1938, tendered his resignation to the township committee and the latter accepted the same on May 27, 1938, and filled the vacancy existing by the appointment of another person, who was the wife of the petitioner. According to the evidence, the minutes of the township committee record such resignation and subsequent appointment of another party. From that time on, the records are silent.

At the hearing before the commissioner of the Workmen's Compensation Bureau, certain oral testimony was presented, attempting to show that the petitioner had been employed in some capacity by the township committee. It is the opinion of this court, that such oral testimony should not be controlling or considered to supplement the minutes of the official body in connection with the decision of this case. As a general proposition, a municipality becomes bound either by formal, preliminary act authorizing a thing to be done, or, in the absence of such preliminary act, by ratification. The doctrine that the official minutes of a municipal body may be altered or supplemented by parole evidence seems to be a dangerous one and capable of introducing havoc and instability into the conduct and business of a municipality. Campbell v. Hackensack, 115 N.J.L. 209, 178 A. 794, 98 A.L.R. 1225.

This is not a case where a person has furnished materials or labor to a municipal body, who, in turn, accepted the merchandise or work done and then refused to pay for the same on the ground that it lacked official authority to order the materials or employ the person. It is rather an attempt to hold indirectly an office which the parties concerned did not wish known by open employment by resolution and the payment of a salary direct to the person involved.

Such is not an illegal act, but it appears to be an attempt to accommodate the...