Thompson v. Wagner

• Decision Date: 17 October 1927
• Docket Number: No. 61.,61.
• Citation: 139 A. 344
• Parties: THOMPSON v. WAGNER.
• Court: New Jersey Supreme Court

139 A. 344

THOMPSON

v. WAGNER.

No. 61.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1927.

Appeal from Supreme Court.

Raskin, Hornstein & Ruskin, Edward A. Markley, and Isidore Hornstein, all of Jersey City, for appellant.

McDermott, Enright & Carpenter, of Jersey City (Carl S. Kuebler, of Hackensack, of counsel), for respondent.

PER CURIAM. The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in the Supreme Court. 135 A. 800.

KALISCH, J. (dissenting). I am constrained to withhold my acquiescence in the affirmance of the judgment of the Supreme Court reversing the judgment of the court of common pleas, which latter tribunal had affirmed the finding of the deputy commissioner that the accident which befell the petitioner appellant arose out of and in the course of his employment, and that his employment was not a casual one, under the Workmen's Compensation Act of 1911, as amended by paragraph 9, subd. C of the Act of 1919, pp. 211, 212.

From the undisputed facts in the case, it appears that Charles Wagner, the prosecutor respondent, had a contract with the Erie Railroad to keep its tracks clear from obstruction, etc. One Thomas Carpenter was Wagner's superintendent, who hired and discharged employees. On January 28, 1926, and prior thereto, there were snowfalls which covered the tracks of the railroad company. Carpenter, on behalf of Wagner, employed the petitioner, together with others, to clear the railroad tracks from the obstruction caused by the snowfall. While engaged in this work, the petitioner sustained an injury resulting from a blow of a shovel, handled carelessly by a fellow employee engaged in the same work.

The defense relied on by the respondent was that the petitioner appellant was a casual employee, and, hence, was not entitled to compensation under the Workmen's Compensation Act.

It is important to bear in mind that Wagner's business was to keep the tracks of the railroad company clear of any kind of obstruction, whether caused by snow or dirt.

When the cause came to be heard by the deputy commissioner, he found, from the testimony before him, the facts as above briefly detailed, and that the employment of the appellant petitioner was not, within the meaning of the statute, a casual one, and made an award in favor of the petitioner, which award was affirmed by the court of common pleas, as above stated.

The Supreme Court, on a review of the judgment, states in its opinion the following:

"We shall assume for present purposes that the accident arose out of and in the course of the employment, but nevertheless conclude that the award should be set aside, because in our opinion the employment was a casual one."

In giving a reason for reaching such a conclusion, the Supreme Court's opinion points out that, in Laspada v. Public Service Railroad Co., 38 N. J. L. J. p. 103, a case which was tried in the Essex county court of common pleas, Judge Osborne, in denying relief to a petitioner employed by the Public Service Railroad Company, to remove snow from the tracks of its railway, being engaged solely for that particular work, said:

"I think the circumstances of this employment bring it clearly within the twenty-third paragraph of the act, which excludes 'casual' employments. A casual employment is one which comes about, more or less, by chance, to meet the exigencies of a particular situation or a temporary emergency, and which may or may not be within the general scope of the business of the employer or the occupation of the employee."

Of course this decision furnishes no precedent. It had never received the sanction of the Supreme Court nor of this court until the instant case was decided by the Supreme Court. It is always to be borne in mind that Judge Osborne was dealing with a case which was within the operation of the act of 1911, and the facts of which case disclosed that the railroad company was not in the business of removing snow.

Whether Judge Osborne was right or wrong in his definition of the meaning of the term "casual employment" as contained in the act of 1911, and in the sense that the Legislature intended it to be defined, can have no bearing upon the question which arises under the amendment of the act of 1919. The Laspada Case, supra, was decided in 1915. The Legislature made no attempt to define in the act of 1911 its meaning of the term "casual employment." But after a test of the law, as ascertained from its operation during a period of nine years, we may fairly assume that in enacting the amendment of 1919, the lawmaking power had in mind the decisions of the courts of this state, on the question as to what character of hiring labor did or did not constitute a casual employment, and therefore amended section 3, par. 23, of the Act of 1911 (p. 144), which act defines the term "employee" as follows: "Employee is synonymous with servant and includes all natural persons who perform service for another for financial consideration, exclusive of casual employments" —and substituted for it the amendment found in the act of 1919, pp. 211 and 212, under section 9, par. 23, subd. C, which reads:

"Employer is declared to be synonymous with master, and includes natural persons, partnerships, and incorporations; employee is synonymous with servant, and includes all natural persons who perform service for another 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; or if not in connection with any business of the employer, as employment not regular, periodic or recurring."

The Supreme Court, in its opinion, in discussing this amendment said:

"The commissioner who heard the case, giving due weight to the cited decision, considered that the amendment of 1919 had altered matters in such wise that the decision was no longer a valid precedent. However this may be, we think the Laspada Case was well decided, and are unable to see that the language added to the statute and quoted above operates to make the petitioner's employment other than casual. It was of course 'in connection with the employer's business;' * * * 'the occasion for which arose by chance, or was purely accidental;' if either, it was casual. We think it was plainly the first, if not the second. Whether there was occasion for it depended entirely on whether a snowfall should occur. This was, of course, likely to occur at some time in the winter season, but not certain and, should it occur, the time of occurrence depended wholly on vicissitudes of atmospheric conditions."

I cannot agree with the view of the Supreme Court that the amendment in question added nothing to nor made any substantial change as to what was to be understood by the term "casual employment." Surely the Legislature must have intended to accomplish some desirable and effective purpose by the amendment. It may, therefore, be safely assumed that because of the decision in the Laspada Case, supra, and of the decisions in other cases of like character following and expressing similar views, the legislative mind became apprehensive as to the effect of the too comprehensive construction given to the term "casual employment" by the decisions referred to, in that the construction adopted tended to exclude a large proportion of the labor class from the benefits of the Workmen's Compensation Act, and in order to remedy this apparent evil the amendment defining what constituted a casual employment was brought into being. For it is a matter of common knowledge that there are thousands of individuals in our cities and towns who have neither a trade nor profession and are wholly dependent upon unskilled manual labor for a livelihood, and who are engaged in such work as digging trenches, sweeping streets, shoveling snow, shoveling coal, etc., and in the southern part of the state, during the season, engaged in picking tomatoes, cranberries, etc., and that thousands of dollars are expended annually in these various employments; that in the city of Newark alone thousands of dollars are spent every winter in clearing the streets of snow, in which employment a large proportion of the labor class is employed. And it is also a matter of common knowledge that there are...